Delhi District Court
Directions Of Supreme Court In "State Of ... vs . Puttraj 2004 (1) Scc on 6 July, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
SC No. 19/2016
Case No. 27775/16
Assigned to Sessions. 09.03.2016
Arguments heard on 30.05.2018
Date of Judgment 06.07.2018
FIR No. 17/2016
State V Balkishan @ Vijay S/o. Teeka Ram,
R/o. H. No.11202, Swarn Waali Gali,
Motiya Khan, Sadar Bazar, Delhi.
Police Station Sadar Bazar
Under Section 341/354/506/354B/376 IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Sadar Bazar had
filed a challan vide FIR No.17/2016 dated 08.01.2016 u/s.
376/354/354B/341/506 IPC for the prosecution of accused Bal Kishan @ Vijay
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 Special Fast Track Court for trial of the offences of sexual assault
against the women 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 disclosed in the judgment.
Case No.27775/16
State Vs. Balkishan@ Vijay 1/25
BRIEF FACTS OF THE CASE:
2. In this case criminal law was set into motion on the basis of statement of prosecutrix recorded by police on 08.01.2016 and FIR No.17/2016 u/s 376/354/354B/341/506 IPC was registered. In her statement prosecutrix had narrated the incident of rape and molestation done by accused while she was residing at house No.11197, Gali Swarn Wali, Motia Khan, Sadar Bazar, Delhi. Prosecutrix had explained the facts that accused used to visit her house and used to do eve teasing with her and used to tell her that he loves her and sometime he used to touch her inappropriately and one day while she was going upstair to dry clothes, she was caught by accused in the stairs and accused forcibly raped her. The prosecutrix could not give any specific date in her complaint. The investigation was done by SI Vinita Kaushik who visited the spot and prepared site plan on 08.01.2016. The prosecutrix had also lodged a typed complaint with the police of PS Sadar Bazar on 06.01.2016 which is also taken on record by the I.O. During investigation, statement of prosecutrix u/s 164 Cr.P.C. was also recorded on 13.01.2016 wherein she had again reiterated the same facts and circumstances against the accused. She was medically examined in Hindu Rao Hospital and exhibits regarding her medical examination were preserved.
3. On 08.01.2016, I.O. arrested the accused on identification of prosecutrix, he was also medically examined in Hindu Rao Hospital and bloodsample of accused was preserved. Potency test of accused was also conducted on 09.01.2016 wherein it was opined by doctor that "there is nothing to suggest that accused is incapable to perform sexual intercourse."
4. During the course of investigation, exhibits were sent o FSL Rohini and Case No.27775/16 State Vs. Balkishan@ Vijay 2/25 chargesheet was filed 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 Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. During course of trial, I.O. of the case has also filed the FSL report.
CHARGE:
5. On the basis of material available on record, this court vide order dated 30.03.2016 framed charges against accused Bal Kishan @ Vijay for the offence punishable u/s 341/354/506/354B/376 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
6. In order to prove its case prosecution has examined 14 witnesses namely PW1 Dr. Nidhi, PW2 HC Jyoti, PW3 Sh. Jaspal, PW4 HC Raj Kumar, PW5 Sh.
Chand Mohammad, PW6 Ct. Robin Malik, PW7 HC Rajiv Kumar, PW8 Prosecutrix 'S', PW9 Ms. Rashmi Gupta, Ld. MM, PW10 Dr. Varun Garg, PW11 Dr. Pavitra Dosaj, PW12 Dr. Jay Kumar, PW13 Mohd. Naushad and PW14 W/SI Vinita Kaushik.
7. PW1 Dr. Nidhi Jha has conducted medical examination of prosecutrix after obtaining her consent to undergo the same. She deposed that at the time of her examination, patient was pregnant and her hymen was ruptured. She had prepared sexual assault kit and also collected the blood sample of the patient, preserved, sealed and handed over to the police. This witness has proved her Case No.27775/16 State Vs. Balkishan@ Vijay 3/25 endorsement in this regard is Ex.PW1/A bearing her signature at point A on the overleaf of MLC No.179/16 dt. 08.01.2016 and alleged history given by the patient herself on point B to B on the said endorsement Ex.PW1/A.
8. On being cross examined by Sh. Padam Singh, learned counsel for accused, she deposed that family members including her husband of the patient was also present when she was brought before her. This witness had denied to the suggestion that patient had not disclosed history of rape to her. She had not noticed any internal or external injury during her medical examination. She deposed that as being a married lady she cannot tell whether she was sexually assaulted by the accused or her husband. This witness had denied to the suggestion that she had prepared the report at the instance of police officials.
9. PW2 HC Jyoti was the duty officer. She proved rukka vide Ex.PW2/A for registration of the FIR, computerized copy of the FIR vide Ex.PW2/B, endorsement upon the rukka vide Ex.PW2/C and certificate u/s 65 B of Evidence Act qua the present FIR vide Ex.PW2/D.
10. PW3 Sh. Jaspal is the landlord of prosecutrix. He deposed that one Naushad had been his tenant on the ground floor of the premises. He had been residing with his wife and daughter. He deposed that he left the premises after about one month and seven days. He cannot tell the dates and the period of his tenancy. He further deposed that accused present in the court is known to him being his neighbor. He know him since his childhood and he also helps him in daytoday affairs. He further deposed that accused never used to meet the wife of Naushad.
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11. This witness was declared hostile by Ld. Addl. PP for the State. In cross examination by ld. Addl. PP for the State, he admitted that his tenant Naushad had left the premises in the first week of January 2016. He also admitted that prosecutrix was the wife of Naushad. This witness had denied to the suggestion that accused Balkishan @ Vijay also used to meet the wife of Naushad or that he is deposing falsely in this regard being known to the accused.
12. PW4 HC Raj Kumar is the witness of arrest of accused. He has proved arrest memo of accused vide Ex.PW4/A, personal search memo of accused vide Ex.PW4/B and disclosure statement of accused vide Ex.PW4/C. He along with IO took the accused to Hindu Rao Hospital and got him medically examined. The examining doctor of the accused had also handed over him three sealed parcels containing exhibits pertaining to the accused and his clothes which he handed over to the IO, who took the same into possession vide seizure memo Ex.PW4/D.
13. On being cross examined by Sh. Bhanu Pratap Singh, ld. counsel for accused, he deposed that they took the accused to the police station due to gathering of large number of persons. They had not disclosed to public persons as to why accused had been arrested. He deposed that the fact that accused was arrested at police station is correct. He deposed that he does not remember if IO had prepared any document in addition to arrest memo and personal search memo of the accused. This witness had denied to suggestion that he did not join the investigation of this case or that he was in police station at the time of investigation of this case or that he has deposed falsely at the instance of the IO.
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14. PW5 Sh. Chand Mohammad deposed that he is living at the abovesaid address as a tenant and the name of his landlord is Guljar. He deposed that the husband of prosecutrix is his cousin and he is son of his maternal uncle and prosecutrix is the wife of Naushad.
15. PW5 further deposed that in January, 2016 prosecutrix alongwith her husband Naushad had been residing as tenant at Swarn Wali Gali, under the jurisdiction of PS Sadar Bazar, Delhi. However, 34 months back they had left the said house and went to their village.
16. He further deposed that during her stay at the abovesaid house prosecutrix had told him that one boy whose name was Vijay used to harass her and he also used to catch hold her hand. She did not tell anything else about the Vijay. He did not tell the said facts to anyone else. He further deposed that the said Vijay was residing at Swarn Wali Gali and he has never seen him.
17. This witness was cross examined by Sh. A.T. Ansari, Ld. Addl. PP for the State, This witness had denied to the suggestion that prosecutrix had also told him that Vijay used to come at her rented house to meet her landlord or that prosecutrix had told him that he also used to do "galat kaam" with her. This witness had denied to the suggestion that he had stated this fact in his statement Ex.PW5/A. He was confronted with the statement Ex.PW5/A wherein said facts are mentioned at point 'A to A'.
18. This witness admitted that prosecutrix had also told him not to disclose the facts which she told him to her husband Naushad as he was very strict man and that prosecutrix had also told him that if he would tell the said facts to her Case No.27775/16 State Vs. Balkishan@ Vijay 6/25 husband Naushad he would become suspicious about her and that prosecutrix had also told him that if he would disclose the said incident to her husband Naushad, her landlord might get vacate her from rented accommodation.
19. On being cross examined by Sh. Bhanu Pratap Singh, ld. counsel for accused, he deposed that he along with his family members have been residing at the aforesaid address for the last 22 & 1/2 years. Police officials had never come to his house to inquire about the present matter.
20. PW6 Ct. Robin Malik had taken five sealed parcels along with sample seal from MHC(M), PS Sadar Bazar, Delhi to FSL Rohini vide a Road Certificate. He has proved copy of the Road Certificate vide Ex.PW6/A and acknowledgement vide Ex.PW6/B. He further deposed that so long as the said parcels remained in his custody, they were not tempered with in any manner.
21. PW7 HC Rajiv Kumar has brought registered No.19 containing the relevant entries pertaining to this case regarding sending of exhibits to FSL on 14.01.2016 through Ct. Robin vide Road Certificate already Ex.PW6/A (OSR). He further deposed that Ct. Robin had also handed over him the acknowledgement already Ex.PW6/B (OSR) regarding deposit of the exhibits at FSL. He has proved photocopies of the relevant entries of register no.19, running into 2 pages, vide Ex.PW7/A (OSR).
22. PW8 Prosecutrix 'S' is a material witness being victim and complainant. She testified on oath that she is married and having two children and she belongs to State of Bihar. She had come to Delhi in the year 2016, 1012 days prior to Case No.27775/16 State Vs. Balkishan@ Vijay 7/25 the registration of the case. It was her second visit in Delhi. She had come along with her husband. Her mother in law had been residing in Delhi, therefore, she came to her and started searching of rented accommodation from the very first day and she got it at the rate of Rs.2000/ per month on the same day on the ground floor with two rooms but she taken on rent one room and started living there. It was situated at some distance from the house of her mother in law. She deposed that at the time of incident she was having her baby of three years.
23. PW8 further deposed that she started working as an Urdu teacher in the house of some persons and her husband also started plying Thela. She deposed that she does not remember the name of her landlord. She deposed that her husband used to left the house for his working at about 06.00 am and used to return back at about 09.00 pm. She deposed that accused Balkishan @ Vijay also residing in the adjoining house of her rented accommodation. She has correctly identified the accused Balkishan @ Vijay. He used to visit her landlord, who was residing in a Jhuggi, which was built on the terrace of her rented room.
24. PW8 further deposed that accused used to stare at her. One day he told that he loves her. She scolded him and told him that she is already married and if he would do like this, her husband would leave her. Thereafter, accused started coming to her room. Sometimes he used to kiss her hand and also used to catch hold off her. He also used to intimidate her that if she would tell anything about him to anyone, she would be beaten by his family members in the Gali and she would also get defamed.
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25. PW8 further deposed that she does not remember the date but it was probably 8th day, she does not remember the month but it was year 2016 and it was before one or two days, again said 34 days prior to registration of present case, when she had gone upstairs to put her clothes for drying, she found the accused standing near the staircase on the terrace, he caught hold her and broken the string of her salwar and committed sexual intercourse with her forcibly near the staircase and accused had also torn her kameej. She further deposed that she pushed the accused aside to save herself and came down stairs, picked her daughter from her room and went to the house of her motherinlaw. She did not disclose the aforesaid facts to her motherinlaw but she told her about the other incidents did by accused with her prior to the said incident as she was under apprehension that when she would tell the incident to her motherinlaw, she would tell the same to her husband/her son and he would leave her. She further deposed that when her husband returned to home in the evening she also did not tell the incident to him on account of aforesaid apprehension, rather she asked him to vacate the said rented room by telling him "hum yahan nahi rahenge, yahan ke admi log acche nahi hai". Her husband assured her to arrange another room on rent. Thereafter, after two days her husband taken another room on rent in Peepal Wali Gali in different locality at the distance of 5 minutes walking distance from her previous rented room. She further deposed that when they started living there, she stopped taking meal and also started weeping, her husband asked her that "jab ghar chhor diya toh phir rone dhone ki kya jarurat hai". She narrated all the previous incidents committed by the accused with her excluding the incident of rape committed by the accused as she was apprehensive that her husband would leave her if she would tell the same to him and on the same day her husband took her to police station. This witness has proved her complaint vide Ex.PW8/A. She deposed that in that Case No.27775/16 State Vs. Balkishan@ Vijay 9/25 complaint she had also not narrated the incident of rape as she was apprehensive that if her husband would come to know about the same, he would leave her.
26. PW8 further deposed that on the next day while she was going to give tuition of Urdu accused saw her, started laughing at her "aur mazak uda raha tha". She told the said facts to her husband. Thereafter, she along with her husband again went to police station, whereon her statement already Ex.PW2/A was recorded. PW8 has proved her MLC vide Ex.PW8/B and endorsement Ex.PW1/A. Medical examining doctor had also taken her wearing clothes which she was wearing on the day of incident, but she had washed the same and was wearing them on the day of her medical examination. She deposed that at the time of her medical examination she was carrying one month pregnancy from her husband. She had disclosed the facts of incident to the medical examining doctor. She has proved arrest memo of accused vide arrest memo Ex.PW4/A. She has proved her statement u/s 164 Cr.P.C. vide Ex.PW8/C.
27. This witness has correctly identified her brassier which she was wearing at the time of incident vide Ex.P1 and one lady shirt and one salwar which she was wearing at the time of incident vide Ex.P2 and Ex.P3 respectively. She further deposed that accused had committed "Chhedkani" with her 56 times before the registration of FIR. Sometimes during the course of "Chhedkani" accused had also torn her clothes.
28. On being cross examined by Sh. Bhanu Pratap Singh, ld. counsel for accused, she deposed that she has studied only Urdu upto 5th standard. She had been giving tuition of Urdu language to children in nearby house.
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29. She further deposed that there was one more room adjoining to the room which she had taken on rent on the same floor. She deposed that there were four tenants in that room but they used to come to sleep there only in the night time.
30. She deposed that she had not stated the complete facts in her complaint already Ex.PW8/A because she was under fear of her husband. She deposed that since accused had threatened her at the time of incident, she did not raise alarm. She returned to her home at about 08:00 p.m. from the house of her mother in law. This witness had denied to the suggestion that there was one person in the name of Vijay Singh Rathore, R/o House No.11050, Gali Swarn Wali, Motia Khan, Paharganj, Delhi55 or that he had committed wrong act with her or that she had falsely implicated the accused in this case in connivance with the police or that Vijay Singh Rathore has been given up from the case.
31. PW9 Ms. Rashmi Gupta, Ld. MM recorded the statement of the prosecutrix u/s 164 Cr.P.C. vide Ex.PW8/C.
32. PW10 Dr. Varun Garg has proved MLC qua the potency test of accused vide Ex.PW10/A on behalf of Dr. Ashish Tyagi.
33. PW11 Dr. Pavitra Dosaj has conducted the medical examination of accused vide MLC Ex.PW11/A and given her opinion that nothing was found to suggest that accused was incapable to perform sexual act.
34. PW12 Dr. Jay Kumar has proved MLC of accused vide Ex.PW11/A on behalf of Dr. Nikhil Bhasin.
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35. PW13 Mohd. Naushad is the husband of prosecutrix. He deposed that
prosecutrix is his wife. He deposed that at the time of incident he along with his wife and his three years old daughter was residing at Swarn Wali Gali, Motia Khan, Delhi. He does not remember its house number. He further deposed that after about one month of their stay at the said house, his wife developed depression, "udas rahne lagi". When he asked the reason for her said condition, she said to him that "yahan ka mahaul theek nahi hai, kahin aur chalte hain". Thereafter they shifted to a different house at Pipal Wali Gali from the said house. His wife told him that "agar mein naraz na hoon toh woh mujhse ek baat batana chahti hai". Then his wife told him that accused present in the court (correctly identified) used to harass her, "kabhi seene pe haath rakhta tha, kabhi kamar pakadta tha". Thereafter, he went to PS Sadar Bazar and filed a complaint signed by the prosecutrix/his wife.
36. He deposed that his wife had narrated the entire incident to the said lady police official. When he came to know about the entire incident narrated by his wife to the police official, he asked her why she had not told the said facts to him earlier, then she replied that "mujhe darr tha aap chhor doge". He also accompanied his wife for her medical examination. At the time of her medical examination, his wife was pregnant. Later she delivered a baby boy.
37. On being cross examined by Sh. Bhanu Pratap Singh, ld. counsel for accused, he deposed that he was doing the work of pulling Thela during the days of incident. This witness had denied to the suggestion that his wife did not tell him anything about any incident involving accused or that there was one person in the name of Vijay Singh Rathore, R/o House No.11050, Gali Swarn Wali, Motia Khan, Paharganj, Delhi55 or that he had committed wrong act Case No.27775/16 State Vs. Balkishan@ Vijay 12/25 with his wife or that his wife had falsely implicated the accused in this case in connivance with the police or that Vijay Singh Rathore has been given up from the case.
38. PW14 W/SI Vinita Kaushik was the investigating officer of this case. She deposed on the lines of the investigation. She proved the complaint of prosecutrix vide Ex.PW8/A. She recorded statement of prosecutrix, already Ex.PW2/A. Then she prepared rukka already Ex.PW14/A and handed over the rukka to Ct. Raj Kumar for registration of FIR who left from the spot. She took prosecutrix, her husband along with W/Ct. Monika to Hindu Rao Hospital where prosecutrix was medically examined vide MLC already Ex.PW8/B. Doctor had given exhibits pertaining to prosecutrix to W/Ct. Monika. Thereafter, prosecutrix was counseled by a counselor in the hospital and she collected detailed report thereof from the counselor. She proved site plan Ex.PW14/B which was prepared at the instance of prosecutrix. She has arrested the accused vide arrest memo Ex.PW4/A. She has proved personal search memo of accused vide Ex.PW4/B and disclosure statement of accused vide Ex.PW4/C. She along with Ct. Raj Kumar took the accused to Hindu Rao Hospital where he was medically examined vide MLC already Ex.PW11/A and collected MLC. Ct. Raj Kumar handed over her MLC of the accused along with pullandas on reaching police station, which she seized vide seizure memo already Ex.PW4/D. She also collected exhibits pertaining to prosecutrix alongwith sample seal from W/Ct. Monika, which she seized vide seizure memo Ex.PW14/C.
39. During the course of investigation, on 09.01.2016 accused was produced before Hindu Rao Hospital for his potency test where he was medically examined vide Case No.27775/16 State Vs. Balkishan@ Vijay 13/25 MLC already Ex.PW10/A. She has got recorded statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW8/C.
40. During the course of investigation, on 14.01.2016 she sent the exhibits to FSL through Ct. Robin vide RC already Ex.PW6/A. Thereafter, she filed charge sheet pending FSL report. After filing charge sheet she filed FSL report along with application Ex.PW14/D. She has proved FSL report vide Ex.PW14/E. Ld. defence counsel for accused admits the FSL report Ex.PW14/E (admitted document).
41. On being cross examined by Sh. Bhanu Pratap Singh, Ld. counsel for accused, she deposed that she had gone through the complaint already Ex.PW8/A. She had not investigated about the address Vijay Singh Rathore, H. No. 11050, Gali Swarn Wali, Motia Khan, Sadar Bazar, Delhi. She further deposed that prosecutrix had wrongly mentioned the aforesaid address in her complaint and on inquiry she had revealed the correct address of the place of incident i.e. house of accused Balkishan @ Vijay, H. No. 11202, Gali Swarn Wali, Motia Khan, Sadar Bazar, Delhi. She admitted that the name of the accused as Balkishan @ Vijay is not mentioned in the statement of prosecutrix, already Ex.PW2/A. She deposed that she does not remember if she had mentioned the fact that accused was also known as Balkishan @ Vijay or Vijay @ Balkishan in her case diary. She had not collected any document proving that Balkishan @ Vijay was the same person. This witness had denied to the suggestion that she had kept pending investigation from 07.01.2016 till 01:00 p.m. 08.01.2016 or that during this period she managed to escape the real accused namely Vijay Singh Rathore or that she had implicated the present accused in the case falsely by adding @ Vijay in his name or that in order to give benefit to actual Case No.27775/16 State Vs. Balkishan@ Vijay 14/25 accused, she did not mention the correct name of accused as Vijay Singh Rathore which is mentioned in the complaint Ex.PW8/A.
42. She deposed that gali where house no. 11197 was situated was about 67 feet width. This witness admitted that habitants may be found on all the times in the premises around the place of incident and can see everyone in the house of each other. This witness had denied to the suggestion that she did not visit house no. 11197 at any point of time or that prosecutrix with her husband were called at police station or that all the proceedings had been done while sitting at police station.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
43. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. Accused claimed that he is innocent. He has been falsely implicated by the prosecutrix in connivance with the police/IO of the case. He did nothing wrong with the prosecutrix. Accused has not preferred to lead defence evidence. Hence, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
44. Ld. counsel for accused argued and submitted that there are charges u/s 341/354/506/354B/376 IPC against the accused and 14 prosecution witnesses have been examined in the present case.
45. Ld. counsel for accused further submitted that on 06.01.2016, one complaint Ex.PW8/A was given by the complainant against one Vijay Singh Rathore wherein at six places name of Vijay Singh Rathore was written but no where she has mentioned the name of accused as Balkishan. Further, in statement of Case No.27775/16 State Vs. Balkishan@ Vijay 15/25 prosecutrix Ex.PW2/A and statement of prosecutrix u/s 164 Cr.P.C. Ex.PW8/C, prosecutrix has also not mentioned the name of accused Balkishan @ Vijay or Vijay @ Balkishan. Only name of accused Vijay has been written. It means allegations are against accused Vijay neither against Balkishan nor Vijay Singh Rathore. Further, there is no allegation of commission of rape upon the prosecutrix by the accused in her complaint Ex.PW8/A. There is dispute of identification of accused. No investigation has been carried on this regard. PW Prosecutrix has not mentioned name of accused Bal Kishan in her statement u/s 164 Cr.P.C.
46. Ld. counsel for accused further submitted that I.O. in her statement has deposed that she does not remember if she had mentioned the fact that accused was also known as Balkishan @ Vijay or Vijay @ Balkishan in her case diary. She had not collected any document proving that Balkishan @ Vijay was the same person.
47. Ld. counsel for accused further submitted that there is delay in lodging the FIR which has not been explained by the prosecutrix.
48. Ld. counsel for accused further submitted that in MLC Ex.PW8/B there is history of rape 15 days back by his neighbours at around 10:00 a.m. but no name of accused has been mentioned. PW Dr. Nidhi Jha has deposed in her deposition that she has not noticed external and internal injury during her medical examination. She had also not noticed any injury mark on her body. She cannot tell whether she was sexually assaulted by the accused or her husband. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
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49. On the other hand, Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution. She has deposed about her complaint Ex.PW1/A and she had identified the accused as the same person against whom she lodged complaint of rape.
50. Ld. Addl. PP for the State further submitted that delay has been explained by prosecutrix and also that she has given the reason as to why she did not mention committing rape in the first complaint dated 06.01.2016. Her testimony has also been corrobrated by the testimony of other PWs i.e. PW13 Mohd. Naushad and in the facts and circumstnacesd of the case accused had taken liberty of molesting the prosecutrix and raping her in absence of her husband. The prosecutrix had also explained that she did not inform the incident of rape to her husband as she was fearing that her husband would leave her on coming to know about the act of accused with her. Though, PW3 Sh. Jaspal and PW5 has not partly supported the version given by them before the police but they had stated regarding other facts of the case in issue and no benefit can be given to accused. As such, considering the testimony of prosecutrix, her husband and the I.O., case against accused is proved and he may be convicted.
PERUSAL OF RECORD:
51. Arguments heard. Record perused. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW2/A, present FIR Ex.PW2/B was registered against the accused.
52. It is further revealed that prosecutrix was medically examined in the hospital Case No.27775/16 State Vs. Balkishan@ Vijay 17/25 by PW1 Dr. Nidhi Jha vide her endorsement, Ex.PW1/A on the MLC Ex.PW8/A.
53. It is further revealed that on 08.01.2016 PW8 prosecutrix also identified accused in the police station and IO in presence of PW4 HC Raj Kumar (then constable) arrested him in the case vide arrest memo Ex.PW4/A; his personal search was conducted vide personal search memo Ex.PW4/B; his disclosure statement Ex.PW4/C was also recorded.
54. It is further revealed that on 08.01.2016 accused was medically examined by PW11 Dr. Pavitra Dosaj vide MLC Ex.PW11/A; he was referred to Forensic Department where his potency test conducted by Dr. Ashish Tyagi vide MLC Ex.PW10/A whose handwriting and signatures were identified by PW10 Dr. Varun Garg.
55. It is further revealed that on 08.01.2016 PW7 HC Rajiv Kumar deposited the sealed exhibits of this case vide entry Ex.PW7/A of register no.19 and thereafter on 14.01.2016 PW6 Ct. Robin Malik took five sealed parcels from PS Sadar Bazar vide Road Certificate, Ex.PW6/A and deposited the same in the office of FSL Rohini and he obtained acknowledge Ex.PW6/B which he deposited in the Malkhana.
56. It is further revealed that PW14 W/SI Vinita Kaushik took prosecutrix and her husband to Hindu Rao Hospital where she was medically examined vide MLC Ex.PW8/B; then prosecutrix also pointed out the place of incident and site plan, Ex.PW14/B. Case No.27775/16 State Vs. Balkishan@ Vijay 18/25
57. It is further revealed that accused was taken to Hindu Rao Hospital and were medically examined vide MLC Ex.PW11/A; exhibits of your blood sample were seized by vide seizure memo Ex.PW4/D.
58. It is further revealed that PW14 W/SI Vinita Kaushik produced accused in Hindu Rao Hospital and his potency test was conducted vide MLC Ex.PW10/A.
59. It is further revealed that on 14.01.2016 PW14 W/SI Vinita Kaushik sent the exhibits of this case to FSL through Ct. Robin vide RC Ex.PW6/A and after obtaining FSL result Ex.PW14/E, she filed the same in the court vide her application Ex.PW14/D.
60. Before reaching at any conclusion, let the relevant sections i.e. 341/354/506/354B/376 IPC be reproduced, which are as under: Section 354 IPC:
Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, (shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.) Section 354B IPC: Assault or use of criminal force to woman with intent to disrobe. Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.) Section 341 IPC:
Punishment for wrongful restraint. Whoever, wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.Case No.27775/16
State Vs. Balkishan@ Vijay 19/25
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be 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.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a Case No.27775/16 State Vs. Balkishan@ Vijay 20/25 widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS:
61. Arguments heard. Record perused. On perusal of record, it is revealed that present case was registered on the statement of prosecutrix Ex.PW2/A. Prosecutrix has been examined as PW8. During her deposition, prosecutrix deposed that she is married and having two children. She belongs to State of Bihar and she had come to Delhi in the year 2016. She further deposed that accused Balkishan @ Vijay also residing in the adjoining house of her rented accommodation. He used to visit her landlord, who was residing in a Jhuggi, which was built on the terrace of her rented room. Accused used to stare at her and that one day he told her that he loves her. She scolded him and told him that she is already married and if he would do like this, her husband would leave her. Thereafter, accused started coming to her room. Sometimes he used Case No.27775/16 State Vs. Balkishan@ Vijay 21/25 to kiss her hand and also used to catch hold off her. He also used to intimidate her that if she would tell anything about him to anyone. She would be beaten by his family members in the Gali and she would also get defamed. She further deposed that she does not remember that date but it was probably 8 th day, she does not remember the month but it was year 2016 and it was before one or two days, again said 34 days prior to registration of present case, when she had gone upstairs to put her clothes for drying, she found the accused standing near the staircase on the trerrace, he caught hold her and broken the string of her salwar and committed sexual intercourse with her forcibly near the staircase. She further deposed that accused had also torn her kameej.
62. She further deposed that she pushed the accused aside to save herself and came down stairs, picked her daughter from her room and went to house of her mother in law. She did not disclose the aforesaid facts to her mother in law but she told her about the other incidents did by accused with her prior to the said incident as she was under apprehension that when she would tell the incident to her motherinlaw, she would tell the same to her husband/her son and he would leave her.
63. On perusal of testimony of prosecutrix, it has been found that she has not given any specific date of incident of rape and she has simply stated that she does not remember the date of the date when she had gone for drying clothes upstairs then accused committed rape with her. It is also strange to see that a lady who has been subjected to harassment and molestation by the accused on earlier occasions and when he actually raped her why she should not raise alarm or inform to her landlord or any person in her vicinity.
Case No.27775/16State Vs. Balkishan@ Vijay 22/25
64. The prosecutrix in her deposition has not been able to explain the delay in lodging the complaint with the police or disclosing the incident to her husband, she has simply taken an excuse that she was under fear that her husband would leave her whereas she had admitted that she had disclosed about the incident to her mother in law. Prosecutrix has taken a lame excuse as once she had disclosed the incident to her mother in law it was natural for her mother in law to inform her son i.e. husband of prosecutrix and this could not be the reason of her not disclosing the incident to her husband or to make complaint with the police immediately after the incident of rape. This conduct of prosecutrix create doubt in the version of the prosecutrix. It seems she is withholding truth.
65. The version of the prosecutrix is full of suspicion as in her own typed complaint dated 06.01.2016 Ex.PW8/A given in PS Sadar Bazar she has not disclosed anything about the incident of rape rather she has stated in her complaint that accused used to do molestation with her and used to seek sexual favour from her but she has not stated anything about the incident of rape which she has alleged in her statement Ex.PW2/A on the basis of which FIR was registered. So the version of the prosecutrix is full of doubt and seems to be of improved nature implicate the accused in a graver offence. Version of the I.O. is also silent as to why despite receiving complaint dated 06.01.2016 Ex.PW8/A why the case was not registered as the allegations in this complaint were of molestation, for seeking sexual favours and of threat to kill to the prosecutrix and there is no explanation from the I.O. as to why prosecutrix for the first time stated in her statement Ex.PW2/A about the incident of rape committed by accused with her.
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66. The version of the prosecutrix is also full of doubt and cannot relied upon as she has mentioned that she used to give tuition of Urdu language to her neighbouring student and she is an educated lady being well aware of her actions It was expected from her that if any untoward incident was being done by the accused with her she should have simply called police on 100 number or could have informed her landlady or her neighbours regarding the activities of the accused which she has not done.
67. The I.O. has also not been able to collect independent evidence by examining independent persons from the neighbourhood who could corroborate the version of prosecutrix that accused used to molest her and used to keep an evil eye on her. Rather, PW3 Jaspal, landlord of the prosecutrix and PW5 Chand Mohd., tenant, both did not support the case of prosecution despite cross examined by Ld. Addl. PP for the State. As such testimony of prosecutrix remains uncorroborated and is full of doubt regarding non mentioning specific date of incident of rape and of molestation.
68. Perusal of case file also shows that FSL report Ex.PW14/E filed by the I.O. in the court does not implicated the accused with the offence as no semen could be detected on the exhibits 'la, lb, le, ld, le, lf, lh, li, ljl, lj2, lj3, lk, ll, lm lnl, ln2, ln3, lol, lo2, loe, lql, lr, 2a & 2b' which were clothes of the prosecutrix and sample of her medical examination. Therefore, no DNA fingerprinting analysis could be done with the blood sample of the accused and blood sample of the victim.
69. Facts and circumstances of case show that prosecutrix has not given specific date of incident of rape/molestation in her first complaint dated 06.01.2016, Case No.27775/16 State Vs. Balkishan@ Vijay 24/25 Ex.PW8/A nor in her second statement Ex.PW2/A given to the police on basis of which FIR was registered, she neither specified time and date in her statement u/s 164 Cr.P.C. and finally she had chance to give specific date while deposing in the court as a witness wherein she has also failed to give details of date of incident of rape & molestation.
70. So, considering the overall testimony of independent witnesses i.e. PW3 Sh. Jaspal and PW5 Chand Mohd., clubbed with the FSL report it seems that the prosecution has not been able to connect the accused with the alleged offence of rape. The testimony of prosecutrix is not inspiring confidence and it is highly unsafe to hold guilty an accused on the basis of sole testimony of prosecutrix which is not specific in date not explaining reasons of delay in lodging complaint as such not inspiring confidence. As such, prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Balkishan @ Vijay is acquitted from the charges u/s 341/354/506/354B/376 IPC.
71. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
72. Since prosecutrix has misused the due process of law, hence, no compensation is awarded to her.
73. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 06.07.2018.
Digitally signed (RAMESH KUMARII)
RAMESH by RAMESH
KUMAR ASJ/SFTC2(CENTRAL),
KUMAR
Date: 2018.07.07 TIS HAZARI COURTS, DELHI.
16:01:25 +0000
Case No.27775/16
State Vs. Balkishan@ Vijay 25/25