Delhi District Court
State vs . Sunny Bhagat on 5 March, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 165/2011
Unique Case ID: 02404R0277452011
State Vs. Sunny Bhagat
S/o late Sh. Ashok Bhagat
R/o A44, Gali No. 4, Indra Nagar
Adarsh Nagar, Delhi.
(Acquitted)
FIR No. : 168/2011
Police Station : Rani Bagh
Under Section : 376/506/328 Indian Penal Code
Date of committal to Sessions Court : 09.12.2011
Date on which orders were reserved : 21.02.2013
Date on which judgment pronounced : 05.03.2013
JUDGMENT
BRIEF FACTS:
(1) As per the allegations sometime in between the month of April 2010 and February 2011 in the office of Apex Placement Service at 312, Sagar PlazaII, Road No. 44, Plot No. 27, near M2K, Fawwara Chowk, Pitam Pura, the accused Sunny Bhagat mixed some intoxicant in the cold drink and served the same to the prosecutrix State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 1 of 70 'N'. It is further alleged that during the aforesaid period the accused Sunny Bhagat cheated the prosecutrix 'N' by asking her to marry him and on the pretext of marriage he committed rape upon her and after committing the act of rape he has also criminally intimidated the prosecutrix 'N'.
CASE OF PROSECUTION IN BRIEF:
(2) The case of the prosecution is that on 14.6.2011 the complainant 'N' came to the police station and gave her complaint to SI Sunita Dutta wherein she alleged that she was residing at A138, 2nd Floor, Majlish Park, Adarsh Nagar, Delhi along with her mother and she was permanent resident of Village Samalka, Police Station Samalka, District Panipat, Haryana and was running a placement agency under the title of APEX Placement Services at 312, Sagar PlazaII, Road No. 44, Plot No. 27, near M2K, Fawwara Chowk, Pitam Pura, Delhi, where she was working alone. The complainant further alleged that in the month of April 2010 Sunny Bhagat made a call on her mobile number 9910089966 from his mobile number 9811667673 and told her that he wanted friendship with her but she refused. According to the complainant despite her refusal Sunny Bhagat continued to call her and in the month of May 2010 he came to her house along with a boy and told her to give some job to that boy after which they became friends and thereafter she started going State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 2 of 70 out with Sunny Bhagat who also gave various gifts to her and promised to marry her. She has further alleged that when she told Sunny Bhagat to introduce her to his parents, he started avoiding her but he continued to visit her house and in the month of February, 2011 Sunny came to her office and she ordered a cold drink for him after which she went to washroom and when she returned back they both consumed the cold drink. The complainant has alleged that except her and Sunny Bhagat nobody else was present in the office and after consuming the cold drink, she started feeling giddy after which Sunny Bhagat committed rape upon her without her consent and thereafter he promised to marry her. She also alleged that during this period she also became pregnant and when she informed about this to Sunny Bhagat he threatened to throw acid upon her and got her abortion conducted.
(3) On the basis of the above statement of complainant 'N', present FIR was got registered and during investigations, the accused Sunny Bhagat was arrested and after completing the investigation, the charge sheet was filed in the court.
CHARGE:
(4) Charge under Section 328/376/506 Indian Penal Code and alternative charge under Section 420 Indian Penal Code was settled against the accused to which he pleaded not guilty and claim trial. State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 3 of 70
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as nine witnesses:
Public Witnesses:
(6) PW9 is the Prosecutrix 'N'. She has deposed that she is residing at the given address along with her mother and is original resident of Samalka, District Panipat, Haryana. According to her, she is running a placement agency by the name and style of Apex Placement Services at 312, Sagar PlazaII, Road No. 44, Plot No. 27, near M2K Fawara Chowk, Pitampura, Delhi, where she is working alone. The prosecutrix has deposed that the accused Sunny Bhagat (correctly identified by the witness) used to come to the house of her friend residing in her neighbourhood. She further deposed that in the year 2010 in the month of April, Sunny Bhagat called on her mobile number 9910089966 from his mobile no. 9811667673 and introduced himself as Sunny Bhagat and stated that he wanted to make friends with her but she refused his proposal but he continued to call her and used to sent her SMSs. The prosecutrix has deposed that in the month of May 2010, Sunny came to her office along with a boy for purposes of placement and he told her that the boy required a job on which she told him that she could place him somewhere. According to the witness it was from that time she started talking to Sunny and they State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 4 of 70 became friends and used to go out together here and there. The prosecutrix has deposed that thereafter Sunny started proposing to her but she told him that he should introduce her to his parents on which he started avoiding her meeting with his parents but they continued to be friends and they were meeting. According to the witness in the first week of February 2011, it may be 4th February, the accused Sunny came to her office when she was alone in the office and as usual, she telephonically ordered for the cold drink from ground floor that is from Kiran Confectionery or "Good Food".
The witness has deposed that after ordering the cold drink she went to wash room and when she came back the cold drinks which she ordered had come and Sunny was already holding his glass of cold drink and her glass was lying on the table. According to the witness thereafter both of them started drinking the cold drink but after some time she started feeling dizzy (mujhe chakkar ane lage) but was still semiconscious at that time after which Sunny Bhagat did galat kam with her without her consent. (meri marji ke khilaf galat kaam kiya). The witness has deposed that on the next day Sunny Bhagat assured her that he would marry her and said saadi to karni hi hai and he also committed to her that he would marry her on 1st June 2011 and by that time he would tell his parents and make them agreeable to their alliance / marriage.
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 5 of 70 (7) According to the prosecutrix, during this period she came to know that she had become pregnant and she disclosed this fact to Sunny Bhagat but he threatened her that he would throw acid upon her and he got her abortion done from Bhagwati Hospital. The prosecutrix has deposed that he had forcibly given her some medicine which she took after which she had regular bleedings for about 1520 days and thereafter the child was aborted. According to the witness the accused Sunny Bhagat had in fact told her that their society is not so advance that his family would accept her with the child before the marriage but after the abortion he started ignoring her and used abusive language and started spreading rumors around her residence to spoil her reputation. The prosecutrix has clarified that during this period since she was doing law she was having her semester examination from 19th April to 22 May. According to the prosecutrix when Sunny refused to marry her on 1st June, 2010 as per his promise, she spoke to his mother and Bhabhi who were known to her as neighbours. She has deposed that they were not aware that Sunny and herself were going around but they also started abusing her and refused for marriage on which having no option left she filed the present complaint which is Ex.PW7/A bearing her signatures at various places at point A on the basis of said complaint the FIR was registered. According to the prosecutrix thereafter she was taken to Bhagwan Mahavir Hospital where her medical examination was State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 6 of 70 conducted. The prosecutrix has deposed that on 16.6.2011 she joined the investigations along with ASI Poonam Tyagi and Ct. Om Prakash to apprehend the accused Sunny Bhagat and they went to Indira Nagar, Adarsh Nagar and she was taking the police to the house of Sunny Bhagat but as soon as they got down from the Auto, she saw Sunny at a juice shop and she pointed out towards him on which Ct. Om Prakash apprehended him and he was arrested vide memo Ex.PW6/A and personally searched vide memo Ex.PW6/B both bearing my signatures at point B respectively. The prosecutrix has explained that after the accused got bail from the court he started harassing her in respect of which she filed various complaints with the police but no action was taken. She has deposed that she has been threatened by the accused on telephone and he also started stalking her and on one occasion he along with his friends damaged the windscreens of her car which matter was reported to the police. The witness has deposed that her mother is a heart patient and the accused also started spreading false rumors about her (witness) in order to spoil her reputation. She has deposed that she had also made various complaints to the senior police officials including the DCP. (8) In her crossexamination by Ld. Defence Counsel, the witness has deposed that after she made the complaint to the police regarding the threats given to her by the accused on his getting bail she did not make any statement u/s 161 CrPC to the police and has State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 7 of 70 voluntarily explained that her statement was never recorded thereafter. She has denied that she did not made any complaint to the police regarding when her car was damaged by the accused and has voluntarily explained that she had made a written complaint to the police in this regard and also at police post at Rohini Courts. She has denied that the police did not take any action against her complaint because they found it to be false. According to the witness she had signed the statement which she made made to the police and has voluntarily explained that it was the statement on the basis of which FIR was registered and she is not aware if any subsequent statement was recorded by the police. She has deposed that she only recollect that they had made enquiries from her and used to go to the police station regularly for investigation and inquiries. Witness has deposed that she have made her first complaint on 07.06.2011 when she had gone to the police station. She does not recollect the date but thereafter she was regularly going to the police station because she was getting regularly threats from the accused. According to the witness the FIR was not immediately recorded on her first complaint dt. 07.06.2011. She has deposed that she was told by the police that they would first make enquiries at the hospital where the abortion had taken place and only after enquiry the FIR had been registered. According to the witness the complaint which she had given to the police on 07.06.2011 was a typed complaint but she is not aware if it State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 8 of 70 is a part of the charge sheet or is present on the judicial file. This Court has however observed that the typed complaint is not on the charge sheet and therefore not a part of the judicial file. The witness has admitted that she also did not make any separate statement to the police to the extent that after the accused got bail from the court, he started harassing her and she also meet senior police officials and has voluntarily explained that the police never recorded her statement though she made a complaint. The witness has denied that since on the basis of the typed complaint which she had given to the police no cognizable offence was made out, hence, that complaint was unofficially returned to her and she was advised by the senior police officials to twist and distort facts of the case and made a fresh statement Ex.PW7/A to falsely implicate the accused and has voluntarily explained that she has the copy of that complaint and if it is directed she can place it on the record. Witness has admitted that her complaint which she gave in writing she did not specifically mention that she was doing law nor she clarified that during this period, she was having her semester examination from 19th April to 22 May. The witness has deposed that she also did not state in her complaint that when Sunny refused to marry her on 1st June, 2010 as per his promise, she spoke to his mother and Bhabhi who were known to her as neighbours or that they were not aware that Sunny and herself were going around. According to the witness she also did State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 9 of 70 not state in the complaint that they also started abusing her and refused for the marriage on which having no option left she filed the present complaint which is Ex.PW7/A bearing her signatures at various places at point A on the basis of said complaint the FIR was registered and, thereafter, she was taken to Bhagwan Mahavir Hospital where her medical examination was conducted. The witness has admitted that she did not specifically stated to the police in her statement Ex.PW7/A that Sunny had in fact told her that their society is not so advance that his family would accept her with the child before the marriage but after the abortion he started ignoring her and used abusive language and started spreading rumors around her residence to spoil her reputation and has voluntarily explained that she was very disturbed at that time and she could not open up freely with the Investigating Officer SI Kuldeep who has recorded her statement. The witness has deposed that she had told the enquiry officer that the child was thereafter aborted after the accused had forcibly given her some medicines. This Court has however observed that the said fact has been mentioned in a different manner and only aspect that the child was aborted thereafter has not been mentioned in Ex.PW7/A. (9) The witness has deposed that she had told to the IO that Sunny Bhagat did galat kaam with her without her consent and on the next day Sunny Bhagat assured her that he would marry her on State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 10 of 70 1st June, 2011. The witness was confronted with her statement Ex.PW7/A where this specific fact of accused assuring the victim on the next day and also the date 01.06.2011 has not been found mentioned. According to the witness she did not tell the police specifically in her statement Ex.PW7/A that Sunny Bhagat used to come to the house of her friend residing in her neighborhood. She does not recollect that if she had told the police that Sunny Bhagat wanted to make friends with her and that she had refused his proposal and has voluntarily explained that he used to call her on her mobile phone. The witness has deposed that she had told the police that the accused had started calling her at her mobile. She admits that she did not specifically tell the police that he used to send her SMS and has voluntarily explained that she had only told to the police that he used to make call on mobile phone. According to the witness when Sunny Bhagat came to her office with a boy for the first time for the purposes of placement, he did not get his Biodata and she voluntarily explained that he came at empty handed and only orally spoke to her about the job. The witness has deposed that earlier in 2010 when Sunny started making telephone calls to her, she did not make any complaint to the police. She has denied that she did not make any complaints to the police because there was no such incident of making calls to her or that Sunny Bhagat had never came to her office along with any boy for purposes of placement because State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 11 of 70 he himself was gainfully employed. According to the witness the boy who came with Sunny Bhagat was friend of Sunny Bhagat and has voluntarily explained that the other boy gave his reference as a cousin of one of the employees of Sunny further added the name of the said boy was Honey and in so far as she recollect his brother in law had also come to her in her office and given his biodata for employment which she can place before the court. She has denied that she has concocted this story of a boy coming along with Sunny Bhagat or that there was no such incident. The witness has deposed that she did not tell the police the details of the places where Sunny Bhagat used to take her when we went and has voluntarily explained that in complaint which she had made on 07.06.2011 she specifically mentioned the details of the places where he used to take her including malls. The prosecutrix has deposed that she did not inform her mother that Sunny Bhagat was going around with her before she asked Sunny to introduce her to his parents. She has denied that she did not inform her mother about this fact because there was no such proposal made on behalf of Sunny Bhagat. According to the witness she did not give any legal notice to the accused prior to filing the present complaint informing the accused Sunny Bhagat of legal action in case if he (Sunny) refused to marry her. She has deposed that she did not approach any Women Commission or Women Cell regarding the refusal of the accused to marry her despite his promise State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 12 of 70 to do so. The witness has deposed that she had given the date 04.02.2011 to the police in her first complaint dated 07.06.2011 but not in her statement Ex. PW7/A which she made to the police later. She admits that she did not mention any time in the said complaint. Witness has denied that she deliberately did not give any time in her complaint as no such incident had taken place and only to leave a manoevouring space later on and to distort the fact to her benefit. She has deposed that in the floor where her office is situated there were four other offices in the year 2011 and has voluntarily added that now there are six offices. She has denied that at that time in the year 2011 there were around 50 people working on the same floor and has voluntarily explained that she cannot tell the exact number of persons working on the same floor because she never visited the other offices, but they were certainly not 50. She has denied that the first floor where office is housed is a crowded mall and has voluntarily explained that it is in the commercial complex on the fourth floor which is a secluded area. She has deposed that the size of her office is around 6 x 6 feet approximately and admits that there is a table and sitting space at her office. She has further deposed that there is one chair and two setties i.e. one setti and one long setty in the office and that the length of the long setty is the same as of three seater sofa. According to the witness the police officials did not tell her that they wanted to see her office and hence, there was no occasion of her State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 13 of 70 showing them the office space. She has denied that her office is so small and no setti can be kept or that it is for the reason that she did not mention about the setties or chairs kept in the room. The witness has further deposed that the toilet used by her is a common toilet situated on the same floor towards the end of the floor and the distance of said toilet from her room is around 80100 feet and that it takes about 23 minutes to reach there and has voluntarily explained that sometime the toilet is being used by others and therefore, at times it takes around 1015 minutes to reach back because of the waiting. The witness admits that she did not mention the exact time she took while returning to her office from the toilet. She has denied that she did not mention the time because she did not come out to go to the toilet. According to the witness both the confectionery shops from where she used to place orders are Kiran confectionery or Good Food. She has deposed that she is a regular customer of both these confectionery shops and maintain the credit account with them and therefore, they do not give her any bills every time the items are purchased from them and has voluntarily explained that they gave her monthly bills. The witness has admitted that she receive the monthly bills along with details from the confectionery shop and she did not hand over the said bill for the month of February, 2011. She has denied the suggestion that she deliberately did not hand over the said bills to the police showing that cold drinks were brought from State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 14 of 70 these shops on 04.02.2011 because there was no such order placed of the said date i.e. 04.02.2011.
(10) The prosecutrix 'N' has deposed that she is an income tax assessee but is not showing any separate account under the head of day to day expenses which includes the eatables and the snacks in the account of the company nor her office is not registered by the Government. She has denied that she is deliberately not maintaining a separate head of account or getting the accounts audited because she is not running any placement agency. She has further denied that she is not running any private office from the spot and for this reason she did not take the police to the spot. According to the witness she had orally told the police in her statement that when she came back from the toilet Sunny was holding his glass but her glass was lying on the table. The witness was confronted with statement Ex.PW7/A where the glass lying on the table has not been found specifically mentioned. The witness has denied that no such incident as claimed by her took place on 04.02.2011 or that she has created and concocted an incident only to pressurize the accused into marry her. She has denied that accused Sunny had never made any proposal to marry her or that he had not assured her of the same at any point of time. The witness has denied that the accused Sunny had never assured her to introduce her to his parents or thereafter avoided her or that there was no marriage proposed between her and the accused State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 15 of 70 Sunny Bhagat on 1.6.2011 or that it is for this reason that she did not inform any of her family members or friends. The witness has denied that no abortion had been got done by the present accused or that she and the IO in connivance with each other fabricated the documents to falsely implicate the accused Sunny Bhagat. She has denied the suggestion that the history of information given to the doctor at Bhagwan Mahavir Hospital, was false and concocted when she was taken to the hospital for medical examination. She has also denied that she never became dizzy or semi conscious after taking the drinks with accused Sunny Bhagat. The witness has admitted that she had never made any hue and cry after the incident and has voluntarily explained that she was unconscious on the day of incident after taking the cold drink and on the next day i.e. on 01.06.2011 the accused Sunny Bhagat promised her for the marriage. The witness has denied that all what she has volunteered in her crossexamination are concocted and fabricated by her. She has admitted that FIR No. 183 /2009 was registered at police station Lodhi Colony u/s 279/337 IPC and has voluntarily explained that it was just an accident case and her friend Pooja was driving the car at that time and the matter has already been compromised wherein the next date is fixed 28.07.2012 in the court of Sh. Rajender Singh, M.M. Saket, Delhi. She admits that FIR No. 205/05 was registered at police station Adarsh Nagar u/s 451/323 IPC and has voluntarily explained that it State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 16 of 70 was her professional case regarding her business transactions and she was victim of circumstances and that case was also compromised on 05.06.2009 vide Mark PW9/PA which bears her signatures at point A. The prosecutrix has further admitted that FIR No. 138/08 was registered at police station Adarsh Nagar u/s 498A/34 IPC by Sujata Arya wife of her brother Dharminder Arya and has voluntarily explained that it was compromised in 2009 itself and the FIR has already been quashed by the Hon'ble High Court. Witness has further voluntary added that it was a false case and she has no concern with that case and it was against her brother. She has denied that there was no physical relations between her and the accused at any point of time and she has made false allegations against him. She has denied the suggestion that she was never unconscious at any point of time or that she is deposing falsely.
Medical Evidence:
(11) PW3 Dr. Manideepa has deposed that on 14.06.2011 he was working as CMO at Bhagwan Mahavir Hospital, Pitampura and on that day at about 3 PM the prosecutrix 'N' age 28 years, female was brought by L/Ct. Saroj for medical examination. He further deposed that the patient gave history of sexual assault in February first week 2011. He deposed that he examined the patient, no fresh external injury seen and the patient was referred to gyane department State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 17 of 70 for her gynecological examination. He proved her MLC Ex.PW3/A. She has not been cross examined on behalf of the accused despite opportunity and her testimony has gone uncontroverted. (12) PW4 Dr. Deepika Aggarwal has deposed that on 14.06.2011 she was posted at Bhagwan Mahavir Hospital and on that day patient 'N' was referred to her for gynecological examination by Dr. Manideepa. She deposed that patient 'N' gave her consent for gynae examination at point X on MLC Ex.PW3/A. She deposed that the patient was brought with alleged history of sexual assault in February, followed by pregnancy in March and history of abortion in April in private hospital with history of last sexual contact in April.
The witness has deposed that on local examination no injury seen, vulva and perineum healthy, hymen torn, multiple tags seen with no bleeding. According to the witness vaginal swab was prepared in two slides and one swab stick, rectal swab taken in two slides and one swab stick. She has further deposed that all forensic evidences collected as per SAFE KIT and forms filled and handed over to lady constable Saroj and carbon copy of the same forms attached in MLC register. She deposed that she made her endorsement from point Y to Y bearing her signatures at point B on MLC Ex.PW3/A. She proved the SAFE KIT as Ex.PW4/A running into eight pages bearing her signatures at point A. State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 18 of 70 (13) This witness was crossexamined by Ld. Defence Counsel wherein she admitted that she had not mentioned last LMP in the MLC Ex.PW3/A. She has admitted that the last LMP is not mentioned in the SAFE KIT also. She has deposed that she cannot comment whether the victim was pregnant or got abortion in the month of April. As per the complainant the abortion was done in the private hospital and the same was written on MLC Ex.PW3/A. Police Witnesses:
(14) PW1 HC Vinod Kumar has tendered his examination in chief by way of affidavit which is Ex.PW1/1 being a formal witness.
In his affidavit he has deposed that on 14.06.2011 he was posted as MHC (M) at PS Rani Bagh, Delhi. He has proved various entries in register No. 19 as Ex.PW1/A and entry in register No. 21 as Ex.PW1/C. This witness was crossexamined by Ld. Defence Counsel wherein has denied the suggestion that the affidavit is not his true and correct statement.
(15) PW2 Ct. Vinod Prakash has tendered his examination in chief by way of affidavit which is Ex.PW2/1 being a formal witness. This witness was crossexamined by Ld. Defence Counsel wherein he has denied the suggestion that the affidavit is not his true State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 19 of 70 and correct statement.
(16) PW5 L/Ct. Saroj has deposed that on 14.06.2011 she was posted as constable at police station Rani Bagh and on that day she joined the investigations along with ASI Sunita Dutta. She has deposed that she was handed over the prosecutrix whom she had taken to Bhagwan Mahavir hospital for getting her medical examination conducted and thereafter she received one MLC bearing No. 768/11 of the prosecutrix and one sealed pullanda duly sealed with the seal of the hospital and one sample seal. According to the witness she returned to the police station along with the prosecutrix and handed over the sealed pullanda along with the sample seal to the IO who seized the same vide seizure memo Ex.PW5/A. Witness has deposed that thereafter IO deposited the exhibits in the malkhana. (17) This witness was crossexamined by Ld. Defence Counsel wherein she deposed she had left the police station at about 3 PM and reached the hospital after about 10 minutes. She has further deposed that the time of the medical examination was about 3:30 PM. She has deposed that the prosecutrix stayed with the doctor for about 1520 minutes only.
(18) PW6 Ct. Om Parkash has deposed that on 16.06.2011 she was posted at police station Rani Bagh and on that day he joined the investigations along with ASI Poonam Tyagi. He has deposed that he along with ASI Poonam Tyagi and the complainant went to State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 20 of 70 Adarsh Nagar Market, Indira Nagar where the complainant pointed out towards one person who was standing near the juice shop as the accused whose name they later come to know as Sunny Bhagat. He has further deposed that on her pointing out he apprehended the said person and that the person was informed about the reasons why he was apprehended and was interrogated on which he disclosed his name as Sunny Bhagat, R/o A44, Gali No. 4, Indira Nagar, Adarsh Nagar. Witness has deposed that they informed Sunny Bhagat about the grounds of his arrest and thereafter he was arrested vide memo Ex.PW6/A and his personal search was conducted vide memo Ex.PW6/B. He has further deposed that the accused was interrogated and his disclosure statement was recorded vide Ex.PW6/C. He has deposed that the accused was thereafter taken to Bhagwan Mahavir hospital for his medical examination and his MLC was handed over to the IO and IO was given two pullandas sealed with the seal of the hospital and one sample seal on which IO prepared the seizure memo Ex.PW6/D. He has deposed that thereafter the accused was produced in the court of the illaka magistrate where he was remanded to judicial custody. He has further deposed that the statement of the prosecutrix was recorded by the IO at the spot itself and his statement was also recorded by the IO. The witness has correctly identified the accused Sunny Bhagat in the court.
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 21 of 70 (19) This witness was crossexamined by Ld. Defence Counsel wherein he deposed that they started from the police station at about 11:45 AM in an auto and there were three of them who had gone in the auto, i.e. himself, IO and the complainant. He has deposed that they did not go to the house of Sunny Bhagat and voluntarily added that they had met him in the market itself. He has deposed that IO did not take signatures of the owner of the juice shop from where the accused was apprehended nor she recorded his statement in his presence. He has deposed that they remained there for about 2025 minutes and that they started for the hospital at about 12:1512:20 PM. Witness has deposed that it hardly took 1520 minutes for the IO to complete the documentation i.e. preparation of arrest memo, personal search and recording of disclosure of the accused. He has further deposed that they must have reached the hospital at about 1:00 PM and that Bhagwan Mahavir Hospital is at a distance of 810 Kms from Adarsh Nagar and it took them about one hour to reach the hospital. He has deposed that he had signed the arrest memo at the spot itself and admits that the time shown in the arrest memo is 12:50 PM. He has deposed that the time mentioned in the arrest memo is correct and has voluntarily added that it had taken them time to reach the spot. Witness has deposed that he conducted the personal search of the accused and one mobile phone and Rs. 268/ were recovered from the personal search of the accused. State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 22 of 70 Witness has denied the suggestion that the accused had himself surrendered before the police station and no such proceedings as deposed by him were conducted at the spot. He has further denied the suggestion that he was deposing falsely at the instance of the investigating officer.
(20) PW7 ASI Sunita Dutta has deposed that on 14.06.2011 she was posted at police station Rani Bagh and on that day one girl by the name of prosecutrix had come to the police station and made a complaint against Sunny Bhagat and she recorded her statement Ex.PW7/A. The witness has deposed that on the basis of the aforesaid complaint she got registered the FIR and proved her endorsement as Ex.PW7/B. She has further deposed that after the FIR Ex.PW7/C (not disputed) was registered, she handed over the prosecutrix to L/Ct. Saroj and directed her to take the prosecutrix to Bhagwan Mahavir Hospital for getting her medical examination conducted. The witness has deposed that after L/Ct. Saroj returned in about 11 ½ hours she handed over to her one sealed pullanda duly sealed with the seal of the hospital and a sample seal. According to the witness she prepared the seizure memo Ex.PW5/A and deposited the exhibits in the malkhana. She has further deposed that the further investigations were handed over to ASI Poonam Tyagi on 16.06.2011 and that she handed over the case file to MHC (R).
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 23 of 70 (21) This witness was crossexamined by Ld. Defence Counsel wherein she deposed that when the prosecutrix came to the police station, she was alone. Witness has deposed that she asked the prosecutrix if there was some body with her but she stated that she was alone. According to the witness she deposed that prior to this she had never seen her in the police station. She has deposed that after the case was registered she came to the police station on one or two occasions when she had seen her. Witness has further deposed that she cannot tell the date or day when she had come to the police station after the registration of the case. She has further deposed that she did not make any inquiry to verify the allegations made by the prosecutrix in her statement Ex.PW7/A and that she had shown the complaint Ex.PW7/A to the SHO before its registration. Witness has admitted that there is no endorsement / directions by the SHO in writing upon the statement of the prosecutrix Ex.PW7/A regarding registration of the case. She has denied the suggestion that the prosecutrix had never met the SHO and she recorded the statement of the procecutrix in her own manner and got the FIR registered. She deposed that the prosecutrix came to the police station between 11:30 PM on 14.06.2011 and remained with her till about 3:304PM in the police station. According to the witness the prosecutrix was sent to the hospital at about 2:453 PM and BMH is about 10 minutes from the police station in auto. She has deposed that she was not State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 24 of 70 aware if the prosecutrix was in touch with the SHO and the other police officers prior to the registration of this FIR.
(22) PW8 ASI Poonam Tyagi has deposed that on 16.06.2011 she was posted at police station Maurya Enclave and on that day she was handed over the further investigations of this case by the SHO and received the case file from him. She has deposed that she called the prosecutrix in the police station and thereafter she along with prosecutrix and Ct. Om Parkash went to Adarsh Nagar Market, Indira Nagar in an auto. According to the witness they got down near the Adarsh Nagar market and while the prosecutrix was taking them to the house of Sunny Bhagat and crossed the market, the complainant / prosecutrix pointed out towards one person who was standing near the juice shop and identified him as Sunny Bhagat. The witness has deposed that on her pointing out Ct. Om Parkash apprehended the said boy and informed him about the complaint against him and thereafter he was arrested vide memo Ex.PW6/A and his personal search was conducted by Ct. Om Parkash vide memo Ex.PW6/B from which one mobile and Rs 286/ were recovered. The witness has deposed that he was interrogated and his disclosure statement was recorded vide Ex.PW6/C. She has further deposed that accused was thereafter taken to Bhagwan Mahavir hospital for his medical examination and his MLC was handed over to her along with two pullandas sealed with the seal of the BMH and State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 25 of 70 one sample seal on which she prepared the seizure memo Ex.PW6/D. According to the witness thereafter they came to the Rohini Court Complex and produced the accused in the court of the illaka magistrate where he was remanded to judicial custody. The witness has further deposed that on 29.06.2011 she sent the pullandas to the FSL, Rohini through Ct. Vinod and that she recorded statements of the remaining police witnesses and prepared the charge sheet and filed the same in the court. She has further deposed that the report of the FSL had been received after the filing of the charge sheet which reports are Ex.PW8/A and Ex.PW8/B (admissible in evidence under Section 293 Cr. PC). She has correctly identified the accused Sunny Bhagat in the Court.
(23) This witness was crossexamined by Ld. Defence Counsel wherein she deposed that she had recorded the statement of the prosecutrix on one occasion i.e. at the spot when they had gone to apprehend the accused. She has deposed that the distance between the police station and the spot from where the accused was apprehended is about 45 minutes to one hour in auto but she cannot tell in terms of kms. She has further deposed that the prosecutrix was called at police station Rani Bagh and that the prosecutrix reached to the police station at about 1111:30 AM. The witness has further deposed that she had not served any notice to the prosecutrix to join the investigations. She has further deposed that after the prosecutrix State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 26 of 70 came to the police station, she interrogated her formally and she remained with her for about 30 minutes and thereafter they started from the police station. The witness has further deposed that the only inquiry she made from the prosecutrix was with regard to the allegations which she had made in the complaint. She has deposed that she did not make any inquiries from the prosecutrix with regard to the reasons for the delay in making a complaint to the police. She has further deposed that the prosecutrix had not met her prior to the registration of the FIR and that the file remained with her from 16.06.2011 till the filing of the charge sheet. She has admitted that when the prosecutrix filed an application for cancellation of bail of the accused which was in the court of Sh. S.K. Sarvaria, Ld. Sessions Judge, she used to come to the court along with SI Kuldeep Boria. A specific court question was put to this witness as to whether SI Kuldeep Boria was the investigating officer in another subsequent complaint filed by prosecutrix against the accused which she admitted that the charge sheet was filed by her on 28.09.2011. She has admitted that chart mark DA was filed in the court of Sh. S.K. Sarvariya, Ld. Sessions Judge, at the time when the application for cancellation of bail came up for hearing and has voluntarily stated that this was submitted to the court by SI Kuldeep Boria and she know nothing about the same. She has deposed that they did not reach the house of the accused and voluntarily stated that he was State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 27 of 70 already apprehended in the market on the pointing out of the complainant. She has deposed that they reached the spot at around 12:4512:50 PM and that it took her about one hour to interrogate the accused and prepare the documents. She has deposed that the accused was arrested at 12:50 PM and was immediately interrogated thereafter. She has further deposed that it hardly took her around 57 minutes to interrogate the accused but about 15 minutes to record his disclosure. She has also deposed that it hardly took her 57 minutes to inform the accused about the grounds of arrest. The witness has deposed that the disclosure was written by her after the arrest of the accused. Witness has deposed that she did not join any public witness in the investigations and therefore the memos of arrest, personal search and disclosure does not bear signatures of any public person. She has further deposed that she did not go to the office where the prosecutrix had alleged that "galat kam" had been done upon her nor she prepared any site plan of the said spot. She has admitted that she cannot tell the status of the property where the incident as alleged by the prosecutrix took place. She has further deposed that she had not asked the prosecutrix to show her the place where the alleged incident took place. The witness has deposed that she also cannot tell the position of the office / spot where the allegedly incident took place as to whether there was any table, chairs, bed or what other furniture was lying there. She has deposed that she did not inquire State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 28 of 70 from the prosecutrix who had brought the cold drink which was offered to her and from where. She has further deposed that she did not make any inquiries from any of the other persons working in the complex and in the neighbouring area regarding the incident. The witness has deposed that she only made inquiries from the prosecutrix but not from any other person with regard to the number of personals employed in the office or from the other persons working in the neighbourhood. According to the witness she only made inquiries from the prosecutrix with regard to the friend of Sunny Bhagat whom she had named in the complaint and has voluntarily stated that she neither told her the name, nor the details of the said person. She has admitted that at the time of the hearing of the bail application of the accused Sunny Bhagat before the Ld. Sessions Judge the call details of the prosecutrix to the accused Sunny Bhagat were handed over to her but she has not filed the same along with the charge sheet. She has deposed that she had not made any inquiries / investigations with regard to the said call details so handed over to her. Witness has deposed that she has not attached the medical documents of the prosecutrix pertaining to the abortion and has voluntarily stated that they have only been placed on the police file. She has admitted that the doctor who had carried out the abortion has not been cited as a witness by her and has voluntarily stated that she had recorded her statement U/S 161 Cr. P.C which is State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 29 of 70 placed on police file but it is not a part of the charge sheet. She has deposed that she only arrested the accused and produced him in the court but she had not made any inquiries with regard to the correctness of the various other allegations made by the complainant in her complaint Ex.PW7/A. The witness has deposed that no other FIR has been registered against Sunny Bhagat or his associate on the complaint of the prosecutrix regarding threats. She has admitted that she did not take any Police Custody remand of accused Sunny Bhagat. She is unable to tell if any complaints / FIR have been registered against the prosecutrix and her family members. She has deposed that she also cannot tell if the present complainant / prosecutrix is also a complainant in other complaints on which FIR has been registered. She has admitted that this fact regarding other FIR was taken up by the accused at the time of hearing of his bail application but she had not verified the same and has voluntarily stated that the copies of the said complaints and the FIR were not given to her due to which reason she could not verify the same. She has deposed that she was told by the prosecutrix that she was married but divorced. She has deposed that she cannot tell the details of the divorce proceedings. She has denied the suggestion that accused has been falsely implicated in connivance with the police and herself.
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 30 of 70 STATEMENT OF ACCUSED / DEFENCE EVIDENCE:
(24) After completion of prosecution evidence, the statement of the accused Sunny Bhagat was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which he has denied. The accused has stated that he is innocent and has been falsely implicated.
DEFENCE EVIDENCE:
(25) In his defence, the accused has examined as many as six witnesses:
(26) DW1 ASI Umender Kumar has brought the record, i.e. FIR No. 138/08, Police Station Adarsh Nagar wherein the complainant is Sujata Arya and the accused are Dharmender Arya, Neetu and Nanhi Devi. Copy of the above said FIR is Ex.DW1/A running into six pages. (Original FIR seen and returned). (27) In his cross examination by Ld. Addl. PP for the State the witness has deposed that he has no personal knowledge about this case. He admits that he FIR of this case has been quashed by the Hon'ble High Court of Delhi on 14.07.2009 on settlement of both the parties and accused has also been discharged on 26.08.2009 by the court of Sh. Neeraj Kumar Gaur, Ld. MM, Delhi as per the record of the FIR at Page No. 6.
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 31 of 70 (28) DW2 ASI Pushpa has brought the record i.e. FIR No. 123/2009, Police Station Adarsh Nagar, copy of the which is Ex.DW2/A running into two pages wherein the complainant is prosecutrix 'N' D/o Prem Singh, resident of 3084/7, Ranjeet Nagar, Patel Nagar, Delhi. According to the witness he was the Duty Officer at that time when the FIR was registered.
(29) In his crossexamination by Ld. Addl. PP for the State the witness has deposed that he has no personal knowledge of the above mentioned case. According to him he recorded the FIR on the basis of rukka sent by SI Sewa Singh on the statement of Ms prosecutrix 'N' and the charge sheet of this case has been filed before the Hon'ble court but he does not know about the conclusion of this case. He also does not know whether this case was compromised between the parties.
(30) DW3 ASI Jagbir Singh has brought the record i.e. FIR No. 656/07, Police Station Saraswati Vihar, copy of which is Ex.DW3/A wherein complainant is prosecutrix W/o Sachin Malik, R/o I398, Saraswati Vihar, Delhi and the FIR was lodged against accused is Kamal Grover on the statement of prosecutrix U/s 354/323 IPC.
(31) In his crossexamination by Ld. APP for the State, the witness has deposed that he has no personal knowledge about the facts of the above mentioned case. According to the witness, he State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 32 of 70 recorded the above said FIR on the basis of rukka sent by ASI Umed Singh and the charge sheet of this case has been filed before the Hon'ble court but he does not know about the conclusion / fate of the case.
(32) DW4 HC Shobha has brought the record, i.e. FIR No. 363/08, U/s 498A/406 IPC, Police Station Hazarat Nizamuddin, copy of the same is Ex.DW4/A running into three pages wherein complainant is Asha D/o Prem Singh, W/o Sachin Malik, resident of 1/35, Jangpura Extension. According to the witness on 24.10.2008 he was posted as duty officer at Police Station Hazarat Nizamuddin from 9 AM to 5 PM.
(33) In his crossexamination by Ld. Add. PP for the State, the witness has deposed he recorded the above said FIR on the directions of the SHO on the basis of complaint filled by the complainant Asha.
According to him, the charge sheet of this case has been filled by the IO in the Hon'ble Court on 12.03.2010 but he does not know facts of the case personally and he did not join the investigations of this case any time. According to him, he does not know about the conclusion / fate of the case nor he is aware whether the above said case was compromised or not before the Delhi High Court Legal Services Committee on 07.08.2009.
(34) DW5 HC Veer Pal has brought the record i.e FIR No. 183/09, Police Station Lodhi colony, U/s 279/337IPC copy of the State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 33 of 70 same is Ex.DW5/A running into seven pages wherein complainant is SI Rajesh Kumar, No. D158 and the rukka was sent at 3:45AM. The witness has deposed that as per FIR, the alcohol was found in blood of accused (i.e present prosecutrix) and Pooja. The witness has deposed he was posted as duty officer at Police Station Lodhi colony at that time. He has not been cross examined on behalf of the Ld. APP for the State.
(35) DW6 HC Mange Ram has brought the record i.e. original FIR No. 205/2005, under Section 451/323 IPC copy of which is Ex.DW6/A running into three pages in which the complainant is Renu Aggarwal. He has not been cross examined on behalf of the Ld. APP for the State.
FINDINGS:
(36) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the Accused:
(37) The identity of the accused is not disputed. He has been specifically named in the FIR and has also been identified by the State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 34 of 70 complainant / prosecutrix in the court. Even otherwise the accused himself does not dispute his identity he and the complainant being known to each other prior to the incident.
Age and Status of the Prosecutrix:
(38) The prosecutrix admittedly is a major aged about 29 years an aspect on which there is no dispute. At the time of incident the prosecutrix was already married and had been divorced from her husband. At the time of the incident she was running a placement agency under the title APEX Placement Service at 312, Sagar Plaza II, Road No. 44, Plot No. 27, near M2K, Fawwara Chowk, Pitam Pura. The prosecutrix also claims that at the time of the incident she was studying law and having her semester examination, which aspects have gone uncontroverted.
Delay in Registration of FIR:
(39) The case of the prosecution is that the accused had met the prosecutrix in the month of April 2010 after which he became friendly to her and then sexually exploited her for the first time in February 2011 by drugging her in her own office and thereafter regularly made physical relations with her on the promise of marriage. It is further the case of the prosecution that during this period the prosecutrix become pregnant when the accused forcibly gave her some medicines on which the child was aborted and she had State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 35 of 70 to receive treatment at Bhagwati Hospital for incomplete abortion after which the accused started ignoring the prosecutrix, became abusive towards her and finally in the first week of June refused to marry her when the complaint was made.
(40) In the present case there is long a long delay in registration of the FIR. The alleged incident being of the month of February but the FIR being registered in the month of June and Ld. Counsel for the accused has vehemently argued that this is reflective of the fact that the present complaint has been filed on false grounds and that too after due deliberations.
(41) The Ld. Addl. Public Prosecutor has submitted that the facts of the case reflect the reason for the delay. The complainant / victim is a young girl who was taking her semester exam for law during the said period. Also, the accused had been repeatedly assuring her of marriage and she was still hopeful that he would honour his word and hence it is this which explains the delay. (42) I have considered the rival contentions and I may observe that the Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has observed that in case where the delay has been explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 36 of 70 (43) Further, in the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
(44) In the case of Devanand Vs. State (NCT of Delhi), reported in 2003 Crl.L.J. 242 the Hon'ble High Court of Delhi, has held as under :
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 37 of 70
"the above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 3036 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year...para15"
(45) Further in the case of Thulia Kali vs. state of Tamil Nadu, reported in 1972 Cr.L.J.1296, the Hon'ble Supreme Court has held as under:
"...Delay in lodging the first Information Report quite often results in embellishment which is a creature of after thought . On account of delay the report. On the Account of delay the report not only gets breft of the advantage of spontaneity danger creeps in on the introduction of the coloured version, exaggerated account or concocted story as result of deliberation and consultation ..."
(46) Further, the Hon'ble High Court of Rajasthan in the case of Babu Lal and Anr Vs State of Rajasthan, reported in 2001 Cri LJ 2282 , has held as under: State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 38 of 70 " No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
(47) Further, the Hon'ble High Court of Madhya Pradesh in the case of Banti alias Balvinder Singh VS State of Madya Pradesh reported in 1992 Cr LJ 715 has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix , it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances, it must be held that the prosecutrix story was not satisfactorily established (Para 10)"
(48) Now applying the above settled principles of law to the facts of present case, it is writ large that not every delay in registration of case is fatal but only if the said delay is not State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 39 of 70 satisfactorily explained that it creates a doubt with regard to the credibility of the allegations made and hence the Court is required to read the allegations made in the complaint with caution. In the present case it is evident that a valid explanation is forthcoming for the delay caused in registration of the case. The victim is a young girl who has faced a divorce from the first marriage. The accused before this Court is also a young boy of the same area who after coming into contact with the prosecutrix had allegedly enticed and allured her into a relationship first by drugging her and thereafter by giving her assurances that he would be marrying her. It is only natural for a young girl under these circumstances to be be carried away by these kinds of assurances and lodging of a criminal complaint is the last resort. The prosecutrix has explained how the accused had been repeatedly assuring her of a marriage by 1.6.2011. She has also explained that during this period she had her law semester examination which she had given. She has further explained that it was only after 1.6.2011 when the accused refused to honour his commitment that she was compelled to file a typed complaint with the police on 7.6.2011 which complaint is neither on record nor the Investigating Officer ASI Poonam Tyagi admits the same. Be that as the case may be, I hereby hold that the delay if any shall not be fatal to the prosecution case.
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 40 of 70 Medical / Forensic Evidence:
(49) Dr. Manideepa (PW3) and Dr. Deepika Aggarwal (PW4) have proved the MLC of prosecutrix 'N' vide Ex.PW3/A according to which the prosecutrix was brought to the Bhagwan Mahavir Hospital on 14.6.2011 with alleged history of sexual assault in February followed by pregnancy in March with history of abortion in April in a private hospital and the last sexual contact in the month of April. It is evident that the medical examination of the prosecutrix was conducted after almost four months of the incident. The MLC shows that on local examination no injury was seen, vulva and perineum was healthy, hymen was found torn with multiple tags seen however there was no bleeding. The medical evidence does not assist the prosecution in any manner. Here, I may observe that despite the fact that the victim claims that she had got herself treated for an incomplete abortion at Bhagwati Hospital, for the reasons best known the Investigating Officer has neither placed the documents relating to the said abortion and treatment at Bhagwati Hospital on record as a part of the chargesheet nor any witness from the said hospital has been cited or called to the court by the prosecution to prove the aforesaid aspect.
(50) Further, the forensic evidence i.e. biological report Ex.PW8/A and serological report Ex.PW8/B (not disputed by the accused) also does not assist the prosecution in any manner there State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 41 of 70 being nothing incriminating against the accused.
Allegations against the Accused:
(51) The case of the prosecution is that the prosecutrix who is original resident of village Samalka, Police Station Samalka, District Panipat, Haryana, and was running a placement agency under the title of APEX Placement Services at 312, Sagar PlazaII, Road No. 44, Plot No. 27, near M2K, Fawwara Chowk, Pitam Pura, Delhi, which business she was running of her own. In the month of April 2010 the accused Sunny Bhagat came into her contact and she became friendly with him. According to the prosecution, initially the prosecutrix was hesitant in making any contact with the accused but on account of repetitive persistence of the accused she became friendly with him and even used to go out together. However, when the prosecutrix insisted that he should introduce her to his parents, he started avoiding her. According to the prosecutrix in the first week of February, 2011 accused Sunny Bhagat came to her office when she was alone. She ordered a cold drink for him on telephone from Kiran Confectionery and thereafter she went to washroom and when she returned back she saw that Sunny was holding his glass of cold drink whereas her glass was lying on the table. According to the prosecutrix thereafter both of them consumed the cold drink and after some time she started feeling dizzy but she was still semiconscious State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 42 of 70 and thereafter Sunny Bhagat committed rape upon her without her consent and on the next day Sunny Bhagat assured her that he would marry her and told her that he would marry her on 1.6.2011 and by that time he would make his family agreeable for their alliance.
According to the prosecutrix during this period she became pregnant and when she disclosed this fact to Sunny Bhagat he forcibly got the child aborted from Bhagwati Hospital. The prosecutrix further alleged that Sunny Bhagat told her that their society is not so advance that his family would accept her with a child before marriage. However, after abortion he started avoiding her and used abusive language and started spreading rumors around her residence to spoil her reputation. According to the prosecutrix in the month of May she was having her semester examination for law. The accused had promised to marry her by 1.6.2011 but then refused and therefore since she was known to the mother and bhabhi of the accused being neighbours, she informed them about the incident but they refused to believe her and abused and misbehaved with her pursuant to which she had no option but to file the present case.
(52) In support of its case, the prosecution has relied upon the oral testimony of the prosecutrix 'N' who has been examined in the court as PW9. The relevant portion of her testimony is reproduced as under:
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 43 of 70
"I am residing at the aforesaid address along with my mother. I am a original resident of Samalka, district Panipat, Haryana. I am running a placement agency by the name and style of Apex Placement Services at 312, Sagar PlazaII, Road No. 44, Plot No. 27, near M2K Fawara Chowk, Pitampura, Delhi. I am running this placement agency alone.
The accused Sunny Bhagat present in the court (correctly identified by the witness) used to come to the house of my friend residing in my neighbourhood. In the year 2010 in the month of April, Sunny Bhagat called on my mobile number 9910089966 from his mobile no. 9811667673 and introduced himself as Sunny Bhagat and stated that he wanted to make friends with me but I refused his proposal. However, he continued to call me and used to sent me SMSs. In the month of May 2010, Sunny came to my office along with a boy for purposes of placement. He told me that the boy required a job on which I told him that I could place him somewhere. It was from there that I started talking to Sunny and we became friends. We used to go out together here and there. Thereafter, Sunny started proposing to me but I told him that he should introduce me to his parents on which he started avoiding my meeting with his parents but we continued to be friends and we were meeting.
In the first week of February 2011, it may be 4th February, the accused Sunny came to my office. At that time I was alone in the office. As usual, I telephonically ordered for the cold drink State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 44 of 70 from ground floor. I think it was from "Kiran Confectionery" or "Good Food". After ordering the cold drink I went to wash room and when I came back the cold drinks which I ordered had come and Sunny was already holding his glass of cold drink and my glass was lying on the table. Thereafter, both of us started drinking cold drink but after some time I started feeling dizzy (mujhe chakkar ane lage) but I was still semiconscious at that time. Thereafter, Sunny Bhagat did galat kam with me without my consent. (meri marji ke khilaf galat kaam kiya). On the next day Sunny Bhagat assured me that he would marry me and said saadi to karni hi hai and he also committed to me that he would marry me on 1st June 2011 and by that time he would tell his parents and make them agreeable to our alliance / marriage.
During this period I came to know that I have become pregnant. I disclosed this fact to Sunny Bhagat but he threatened me that he would throw acid upon me and he got my abortion done from Bhagwati Hospital. He had forcibly given me some medicine which I took after which I had regular bleeding for about 1520 days and thereafter the child was aborted. Sunny Bhagat had in fact told me that our society is not so advance that his family would accept me with the child before the marriage but after the abortion he started ignoring me and used abusive language and started spreading rumors around my residence to spoil my reputation.
I may clarify that during this period since I was doing law, I was having my semester State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 45 of 70 examination from 19th April to 22 May. When Sunny refused to marry me on 1st June, 2010 as per his promise, I spoke to his mother and Bhabhi who were known to me as neighbours. They were not aware that Sunny and myself were going around but they also started abusing me and refused for the marriage on which having no option left I filed the present complaint which is Ex.PW7/A bearing my signatures at various places at point A on the basis of said complaint the FIR was registered. Thereafter, I was taken to Bhagwan Mahavir Hospital where my medical examination was conducted.
On 16.6.2011 I was called to the police station where I met ASI Poonam Tyagi. I joined the investigations along with ASI Poonam Tyagi and Ct. Om Prakash to apprehend the accused Sunny Bhagat and we went to Indira Nagar, Adarsh Nagar. I was taking the police to the house of Sunny Bhagat but as soon as we got down from the Auto, I saw Sunny at a juice shop and I pointed out towards him on which Ct. Om Prakash apprehended him. He was arrested vide memo Ex.PW6/A and personally searched vide memo Ex.PW6/B both bearing my signatures at point B respectively. Thereafter, I was relieved from the spot. I want to add that after the accused got bail from the court he started harassing me in respect of which I filed various complaints with the police but no action was taken. I have been threatened by the accused on telephone and he also started stalking me. On one occasion he along with his friends damaged the State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 46 of 70 windscreens of my car which matter was reported to the police. My mother is a heart patient. The accused also started spreading false rumors about me in order to spoil my reputation. I had also made various complaints to the senior police officials including the DCP........"
(53) The prosecutrix has been crossexamined at length by the Ld. Defence Counsel wherein she has admitted that she had for the first time made complaint on 1.6.2011 but the police did not register FIR stating that the would first made inquiry from the hospital where the abortion was done only after which the FIR would be registered. According to her she had give an typed complaint to the police on 7.6.2011 but it is evident that the said complaint is neither a part of the charge sheet nor a part of the judicial record. According to the prosecutrix after the accused secured a bail, he started harassing her in respect of which she also met senior police officials but the police never recorded her statement though she made a complaint. (54) This court has observed that in her testimony before the court the prosecutrix has made certain material improvements regarding the accused having told her that his society was not so advance that his family would accept her with the child or that the accused has spread rumors in order to spoil her reputation. (55) Further, in her crossexamination the prosecutrix has admitted that she did not tell the police that the accused used to come State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 47 of 70 to the house of her friend who was residing in the neighbourhood or that he wanted to make friendship with her which she had refused. She has further admitted that in the complaint given by her to the police she had not mentioned the time and the date when the incident had taken place and also admits that the floor where her office was situated had four other offices at the given time and that the size of her office was around 6 x 6 feet approximately and that there is a table and sitting space at her office. She has explained that in the said room there was one chair and two setties i.e. one setti and one long setti in her office and the length of the long setti is the same as of three seater sofa. She has admitted that there is a common toilet situated on the same floor and it takes hardly 2 to 3 minutes to reach the said toilet from her office. She has admitted that she did not hand over any bills from the confectionery shop from where the cold drink was purchased on the date of incident and also admits that at the time of incident she did not raise any hue and cry and has explained that she was unconscious and thereafter on the next day the accused assured her that he would marry her, due to which reason she did not disclose about the incident to anybody.
(56) Further in her crossexamination she has admitted that she is involved in a number of litigations i.e. FIR No. 183/09 Police Station Lodhi Colony under Section 279/337 IPC, FIR No. 205/05 Police Station Adarsh Nagar under Section 451/323 IPC and FIR No. State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 48 of 70 138/08 Police Station Adarsh Nagar under Section 498A/34 IPC and has explained that in the case of Adarsh Nagar bearing FIR No. 138/08 it is her brother's wife who has made her an accused under Section 498A/34 IPC. In respect of FIR No. 183/09 of Police Station Lodhi Colony the prosecutrix has explained that it was just an accident case when her friend Pooja was driving the car and the said matter has already been compromised. She has explained that FIR No. 205/05 PS Adarsh Nagar was related to her professional / business transactions.
(57) The accused Sunny Bhagat in his defence has placed on record the number of cases pending where the prosecutrix is involved in one capacity or the other (i.e. either as complainant or as accused) the details of which is as under:
1. FIR No. 205/05 Police Station Adarsh Nagar under Section 451/323 IPC
2. FIR No. 656/07 Police Station Rani Bagh under Section 354/323 IPC.
3. FIR No. 138/08 Police Station Adarsh Nagar under Section 406/498A/34 IPC.
4. FIR No. 123/09 Police Station Adarsh Nagar under Section 341/324/506/34 IPC.
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 49 of 70
5. FIR No. 363/08 Police Station Nizamuddin under Section 498A/406 IPC.
6. FIR No. 183/09 Police Station Lodhi Road under Section 185/279/ MV Act.
7. FIR No. 375/05 Police Station Adarsh Nagar under Section 509 IPC.
(58) Further, in support of its case, the Ld. Defence Counsel has relied upon the following authorities:
1. Uday Vs. State of Karnataka, (2003) Vol4 SCC 46.
2. Jayanti Rani Panda Vs. State of West Bengal & Anr., 1984 Cril. L.J., 1535.
3. Abhoy Pradhan Vs. State of West Bengal, 1999, Cri.L.J.
4. Sansar Chand Vs. State of Himachal Pradesh, 1999, Cril. L.J. 3538.
5. Dalip Singh @ Dilip Kumar Vs. State of Bihar, (2005) 1, SCC 88.
(59) The victim / prosecutrix has also submitted a detailed memorandum of arguments and cited various judgments in support of her case which judgments I have duly perused, the details of which State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 50 of 70 are as under:
1. Rafiq Vs. State of U.P., 1980 SCC (Cri.) 947 (1980) 4 SCC 262.
2. State of Punjab Vs. Gurmit Singh & Ors., 1996 SCC (Cri.) 316.
3. State of Kerala Vs. Kurissum Moottil Antony, (2007) 1, SCC 627.
4. Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8, SCC 191.
(60) Before coming to the merits of the case, I may observe that this case relates to sexual exploitation of a young woman, divorced from the first marriage, struggling to fend for herself by running a Placement Agency while simultaneously pursuing a Law Degree when she came into contact with the accused through a casual acquaintance culminating into a love affair. According to the prosecutrix for the first time in the month of February 2011 the accused had sex with her in her office after administering some stupefying substance to her which was without her consent. She did not inform anybody about the same on account of promise of marriage given by the accused after which he sexually exploited her on a number of occasions when she even conceived and the child was got aborted on account of the medicines given to her by the accused State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 51 of 70 pursuant to which she had to take treatment from Bhagwati Hospital. Hence given this background it is writ large that this was not one of those cases in which forcible sexual relations were made with the prosecutrix but a case where according to the prosecutrix on the first occasion the accused had sex with her by drugging her and thereafter continued to sexually exploit her by allurement and promise of marriage.
(61) I may observe that most of the rape cases are meticulously wellplanned to satisfy uncontrolled sexual lust and to realize sensuous celluloid images and fantasies with a sole motive to dominate over women and in fact before committing actual rape or 'date rape', rehearsal takes place many times in the intoxicated brain of the rapist and thereafter invariably the victim is blamed, insulted and subjected to humiliation.
(62) Having sex with a girl on the false promise of marriage and later refusing to tie the marriage knot may amount to commission of rape, particularly when the boy from very inception had no intention of marrying the girl. We may term it as 'sexual exploitation' on promise of marriage. Most often boys develop physical relations on false promise of marriage and continue till she become pregnant. Some time it is very difficult to abort and the matter come to the knowledge of family and neighbours and in many of the cases as has happened in the present case the cases are State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 52 of 70 registered against the offending persons at a later stage. Of late, such cases are observed to be on a rise and the Courts are being confronted with the question "whether Sexual intercourse with any girl on a false 'promise of marriage' is consent or not? If not Rape, is it 'cheating' or not? In such cases there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances. (63) The Delhi High Court when confronted with this issue in the case of Ashok Rai @ Amit vs. State, Criminal Appeal No. 389/2008 decided on 9.2.2009, Hon'ble Mr. Justice Pradeep Nandrajog while placing his reliance on the judgments in the cases of Uday Vs. State of Karnataka reported in 2003 (4) SCC 46 and Jayanti Rani Panda Vs. State of West Bengal and Anr. reported in 1984 Crl. LJ 1535; has very succinctly culled out the law on the subject and observed as under:
"........ While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 53 of 70 promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly......."
(64) It is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the facts and circumstances of each case and hence the investigations in such cases is required to be such that all material indicating the circumstances in which the prosecutrix was allured into a relationship with the accused are collected and placed before the Court.
(65) I may further observe that even in cases where in the facts of the case an offence of rape may not be made out despite the fact that the accused had sexually intercourse with the victim girl several times on the false promise of marriage on which she become pregnant, it has been repeatedly held that holding out the false promise of marriage and the accused fraudulently inducing the victim to have sexual intercourse but for which false promise she would not have consented, the act amounts to Cheating at defined under Section 415 IPC and amounts to offence under Section 417 IPC because intentionally inducing the prosecutrix to submit for sexual State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 54 of 70 intercourse on false promise of marriage causes damage or harm in body, mind and reputation of the person deceived and hence the indulgence of the accused in sex with the prosecutrix by means of intentional inducement after given false promise of marriage squarely falls within the mischief of the definition of Cheating and hence under the given circumstances the Investigating Officer of the case is also required to investigate the case in the light of these allegations which in the present case has not been done by the Investigating Officer. Except for recording the statement of the prosecutrix, getting her medical examination conducted and arresting the accused nothing else has been done.
(66) The only evidence on record of the present case is the sole testimony of the prosecutrix. It is settled principle of law that it is not in every case that the version of the prosecutrix must be corroborated in material particulars by independent witnesses. In a case where the Court is satisfied that the testimony of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix conviction can also be recorded but in appropriate cases the Court may look for corroboration from independent sources or circumstances. The testimony of the prosecutrix has to be tested on the touch stone of truthfulness and credibility. By and large the testimony of the prosecutrix has to be believed but to hold that a prosecutrix must be believed State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 55 of 70 irrespective of the improbabilities in her story is an argument that can never be accepted. The test always is as to whether the given story primafacie inspires confidence or not. In the present case, there is a background of long delay in reporting the matter to the police by the prosecutrix who is an educated, mature and financially independent woman, wellversed in legal affairs/ proceedings not only because she is a student of Law but is involved in multifarious litigations and hence it became necessary for this Court to have analyzed her statement with caution and look for independent corroboration which unfortunately is not forthcoming. (67) In the present case it is writ large from the testimony of the prosecutrix that she was lured into a relationship on the pretext of marriage which promise he did not intend to honour. It is a case where the prosecutrix has been emotionally and physically cheated and physically / sexually exploited. The accused has in his statement under Section 313 Cr.PC admitted that he was friendly with the prosecutrix but has denied the physical relations. If this is so then why would the prosecutrix unnecessarily name him or implicate him falsely. After all to what interest she has to falsely implicate him in case if he had nothing to do with her and was only his friend. Also how was it that the prosecutrix became pregnant during this period when her child was aborted and had to be treated at Bhagwati Hospital. The Investigating Officer of the case ASI Poonam Tyagi State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 56 of 70 had collected the documents of Bhagwati Hospital and also interrogated the doctor who named the accused Sunny Bhagat as the person who came with her, why then the said medical record of the hospital not placed on record. The Investigating Officer in her testimony admits that she collected the record of the prosecutrix from the Bhagwati Hospital which record is present on the police file. Why is it that despite the same she did not cite the doctor as a witness whose statement is present on the police file? Why did the Investigating Officer and the Prosecution withhold this record from the Court?
(68) Coming now to the testimony of the prosecutrix. She is a mature girl who is worldly wise and financially independent. She was married which marriage according to her did not work and was hence divorced. She has conceded that she is involved into a number of litigation on personal (as her brother is into a matrimonial dispute with his wife and she herself had a dispute with her exhusband) as well as on the professional front. It is evident that she is well aware of the existing law of the land being a student of Law and of the legal implications, being involved into various litigation. This being so, why is it that her complaint to the police which is even otherwise highly belated did not contain the various details, including the date and time of the first incident when she alleges that she was drugged and raped by the accused? Further, why is it that the said complaint State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 57 of 70 and so also her statement in the Court silent on the details of the other persons who could have confirmed the behaviour of the accused which include the names of her friends and workers? Why is it that she did not insist upon the IO to confirm the location of the accused with her at various places through the Call detail Records? What are the various places where they had gone where the accused exploited her? No such details are mentioned.
(69) Further, according to the prosecutrix the accused Sunny Bhagat used to frequently visit the house of her friend and came in her contact. I am also certain that under the given circumstances in case of any incident or exploitation the prosecutrix would have certainly disclosed this fact to her friend through whom she had come to the contact with Sunny Bhagat. Who is this friend who is also neighbour of the prosecutrix? Investigating Officer has not bothered to make any inquiries in this regard nor the prosecutrix who is an intelligent girl had informed the police of the same. I am certain that this friend of the prosecutrix would have been too willing to come and depose in favour of the prosecutrix why then she (friend of prosecutrix) has been withheld from the court by the Investigating Officer and why no investigations were conducted on this aspect. (70) The entire case of the prosecution rests upon the oral testimony of the prosecutrix 'N'. The medical and forensic evidence does not assist the prosecution in any manner. Despite the fact that State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 58 of 70 the prosecutrix during the investigations had informed the Investigating Officer that the abortion had taken place in Bhagwati Hospital but neither any record of the same has been placed on record nor any doctor from the said hospital has been examined in the court in order to corroborate the testimony of the prosecutrix with regard to the aforesaid or to establish this fact. (71) I am pained to observe that except for the sole testimony of the prosecutrix which finds no corroboration / confirmation from any other source whatsoever there is no evidence against the accused. No doubt, by and large there was no reason for this Court to disbelieve the testimony of the prosecutrix yet keeping in view the peculiar circumstances of the case it was obligatory for the Investigating Agency to have brought on record independent corroboration which was necessary, relevant and available. The manner in which the chargesheet has been filed not only by withholding material evidence but without conducting complete inquiry and investigations on the relevant aspects has left much to be desired. Either the Investigating Officer was not fully sensitized to handle the issue or there was a deliberate attempt to withhold and conceal the material evidence. There are material contradictions in the testimony of the prosecutrix as discussed herein above there being no independent and reliable corroboration, her statement is required to be read with caution. It is a settled law that in case where State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 59 of 70 two views are possible then the view which favours the accused is required to be taken. The accused Sunny Bhagat is not as innocent as he makes himself out to be but unfortunately the Investigating Officer of the case has neither conducted investigations on material aspects nor has she placed the complete relevant material before the Court and hence it is in this background that since the prosecution has not been able to prove and substantiate beyond reasonable doubt that firstly that the accused Sunny Bhagat had given assurances of married to the prosecutrix; secondly that he did not intend to honour the said commitment / promise so made to the prosecutrix and lastly that the prosecutrix was enticed by him into a sexual relationship on this false promise of marriage. The benefit of the same is therefore liable to be given to the accused.
Conduct of the Investigating Agency / Prosecution not above Board:
(72) The present case relating to allurement of a young girl into making relations with the accused on false assurance of marriage. The Investigating Agency and so also the Prosecution were fully aware that the parameters and standards applicable during investigations had to be different. As per allegations the consent of the prosecutrix had been obtained by fraud and by cheating her on the allurement of marriage which promise according to the State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 60 of 70 prosecutrix / victim the accused did not intend to honour. It is strange that despite being aware of the same the Investigating Officer not collected any material / evidence to prove / disprove this dishonest intent as alleged by the prosecutrix. During the trial of the case a large number of questions have arisen to which neither the Investigating Officer nor the Prosecution have any answers which are as under:
➢ Why the spot of the incident / site i.e. office of the prosecutrix where the first incident allegedly took place never inspected by the Investigating Officer? ➢ Why the site plan/ scaled site plan of the spot where the first incident took place in February 2011 never prepared?
➢ Why the Crime Team was never called to the spot where the first incident had taken place in February 2011 for taking the photographs of the spot in order to enable the Court to independently assess the credibility and correctness of the allegations made?
➢ Why no efforts have been made by the Investigating Officer to visit the place where the office of the prosecutrix was situated (where the prosecutrix claimed she was sexually exploited on number of occasions by the accused) or no efforts were made to State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 61 of 70 collect the evidence from the adjoining offices? ➢ Why the confectionery shop (Kiran Confectionery) from where the cold drink had been ordered / purchased not identified?
➢ Why the bills in respect of the purchase of cold drink not collected from the prosecutrix nor any verification obtained from the owner of the confectionery shops with regard to purchase of cold drinks on the date when according to the prosecutrix she was allegedly drugged and raped? (Note: as per the claim of the prosecutrix she was maintaining running account with the said shop and therefore details of the purchase would be available with the shop).
➢ Why the call detail record of the accused and also of the prosecutrix not obtained when the CDRs could have established the frequent contacts between the prosecutrix and the accused and their locations at various points of time?
➢ Why the medical record of the prosecutrix when her abortion was done while she was being treated at Bhagwati Hospital, not placed on judicial record (Note: strangely the Investigating Officer ASI Poonam Tyagi has collected the said record and also recorded the State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 62 of 70 statement of concerned doctor which record is present in the police file but the said doctor has not been made a witness in this case. It is also strange that the said record has been withheld from the court and the concerned doctor has also not been cited as witness. It is writ large that this has been done only to secure benefit to the accused since in the statement of the doctor as recorded by the Investigating Officer which is found present in the police file the doctor has mentioned the name of accused Sunny Bhagat as the person who came to the hospital along with the prosecutrix). ➢ Why the Investigating Officer made no attempts to find out the details and trace out the friend of the prosecutrix who could have proved as to how the accused came into contact of the prosecutrix and also about his subsequent relationship with her? (Note: according to the prosecutrix the accused came to her contact as he used to visit the house of her friend which friend was residing in her neighborhood but the said friend of the prosecutrix has not been inquired or even cited as witness).
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 63 of 70 ➢ Why the Investigating Officer did not interrogate any of the employees of the placement agency of the prosecutrix or the persons who were working in the adjoining offices?
➢ Why the Investigating Officer made no efforts to get the fact of the prosecutrix being a law student verified? (Note: there has been a delay in registration of FIR and the plea taken by the prosecutrix was that she was giving her semester exams. No efforts have been made by the Investigating Officer to get this fact verified which could have been easily done from the college where she was studying nor any date sheet has been placed on record).
➢ Why despite the allegations of the prosecutrix that she had been drugged by the accused after which she was raped during the first incident, no hair or nail samples of the prosecutrix taken and subjected to forensic examination? (Note: there are specialized forensic tests which can be got conducted by taking hair and nail samples wherein the aspect of administration of stupefying drugs to a person can be got confirmed even after six months of the alleged incident).
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 64 of 70 ➢ Why no investigations were conducted by making inquires from the neighbours on the aspect of the accused stalking the prosecutrix? (Note: It is alleged by the prosecutrix that even after the incident, the accused followed her and subjected her to defamation in the area where she was residing and on one occasion causing damage to her car and property and why no such details of the incidents in case if police complaints were made by the prosecutrix were placed before the court. The subsequent conduct of the accused becomes relevant when in a case where the allegations are of of sexual exploitation the accused starts harassing the victim). (73) It is settled law that in cases of consensual sex where the said consent has been taken on the pretext of marriage, the standards to be adopted for investigations and inquiry are all together different and it is necessary for the Investigating Officer to interrogate the persons who are close to the victim and the alleged accused to establish their relationship, to collect electronic record if any to establish their frequent conduct, to report on the status of the property where the alleged offence have taken place, to collect the medical evidence which connects the accused to the alleged offence, which either has not been done and if done has been concealed and State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 65 of 70 withheld from the court. No doubt the benefit of the same is liable to be given to the accused but under the given circumstances this is only on account of the lapses committed by the Investigating Officer who has failed to bring on record evidence which could satisfy the test of Proof Beyond Reasonable Doubt and certainly not on account of the Innocence of the accused. My observations as herein above reflect that the investigations conducted in the present case were not honest and perhaps motivated to assist the accused. The Investigating Officer which includes the Senior Officers who forwarded and supervised the charge sheet and the Public Prosecutor who had scrutinized the file before the case was put in Court, were not only professionally lacking but had apparently concealed and withheld material evidence from the Court. In this background it is necessary that the copy of the judgment in the present case be placed before the Commissioner of Police, Delhi and so also the Director of Prosecution for information and necessary action against the erring officers.
FINAL CONCLUSION:
(74) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 66 of 70 which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(75) Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Sunny Bhagat stands established. It also stands established that at the time of the alleged incident the prosecutrix 'N' was aged about 29 year. Further, it stands established that at the time of incident the prosecutrix was already married and had been divorced from her husband. It has also been established that at the time of the incident she was running a placement agency under the title APEX Placement State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 67 of 70 Service at 312, Sagar PlazaII, Road No. 44, Plot No. 27, near M2K, Fawwara Chowk, Pitam Pura. It also stands established that the prosecutrix is a student of Law and is also involved in multifarious litigations on personal and professional front. (76) The only evidence placed on record by the prosecution is the sole testimony of the prosecutrix which finds no corroboration / confirmation from any other source (including medical and forensic). No doubt, there was no reason for this Court to disbelieve the testimony of the prosecutrix yet keeping in view the peculiar circumstances of the case as highlighted herein above it was obligatory for the Investigating Agency to have brought on record independent corroboration which was necessary, relevant and available, which has not been done. Material evidence has been withheld from the Court and chargesheet has been filed without conducting complete inquiry and investigations on the relevant aspects. There are material contradictions in the testimony of the prosecutrix as discussed herein above there being no independent reliable corroboration and her statement was required to be read with caution. It is a settled law that in case where two views are possible then the view which favours the accused is required to be taken. The accused Sunny Bhagat is not as innocent as he makes himself out to be but unfortunately the Investigating Officer of the case has neither conducted investigations on material aspects nor has she placed the State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 68 of 70 complete relevant material before the Court and hence it is in this background that since the prosecution has not been able to prove and substantiate firstly that the accused Sunny Bhagat had given assurances of married to the prosecutrix; secondly that he did not intend to honour the said commitment / promise so made to the prosecutrix and lastly that the prosecutrix was enticed by him into a sexual relationship on this false promise of marriage. Hence, the benefit of the same is liable to be given to the accused.
(77) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The material brought on record by the prosecution are insufficient to hold that the accused is guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused Sunny Bhagat. Crucially, the materials and evidence on record do not bridge the gap between "may be true" and must be true" so essential for a court to see, while finding the guilty of an accused.
(78) Keeping in view the above, I hold that the prosecution has not been able to prove and substantiate the allegations against the accused Sunny Bhagat for the offences alleged and benefit of doubt State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 69 of 70 is given to the accused Sunny Bhagat who is hereby acquitted of the charges under Section 328/376/506/420 Indian Penal Code. The surety of the accused be discharged, as per rules.
(79) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 05.03.2013 ASJ (NW)II: ROHINI
State Vs. Sunny Bhagat, FIR No. 168/11, PS Rani Bagh Page 70 of 70