Delhi District Court
State vs 1. Mr. Ashish Kumar Son Of Mr. Raj Kumar, on 2 February, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
State versus 1. Mr. Ashish Kumar son of Mr. Raj Kumar,
Resident of Y-154, Camp No.1, Nangloi, Delhi.
2. Mr. Raj Kumar son of Mr. Tara Chand,
R/o Y-154, Camp No.1, Nangloi, Delhi.
First Information Report Number : 900/2007.
Police Station Nangloi,
Under section 376/384/452/506/34 of the Indian Penal Code.
Date of filing of the charge sheet before : 26.07.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file in in Sessions after committal : 09.08.2012.
Date of receipt of file after committal in this Court : 05.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}
Arguments concluded on : 02.02.2013.
Date of judgment : 02.02.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Both the accused on bail with counsel, Mr.Harpreet Singh.
Prosecutrix/ complainant in person with counsel,
Mr. Manoj Khatri.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Mr.Ashish Kumar, the accused, has been charge sheeted by Police Station Nangloi, Delhi for the offence under section 376/384/452/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on one day in the last week of June 2007 at Y-25, Janta Market Camp No.1, Nangloi, Delhi within the jurisdiction of Police Station Nangloi he committed rape on the prosecutrix (name withheld to protect her identity) and after some days of June 2007, he intentionally put prosecutrix in fear of injury and dishonestly demanded Rs.50,000/- from prosecutrix. On 29.08.2007 at about 7.30pm, he committed house trespass by entering into the shop of the father of complainant in a drunken state having made preparations for causing hurt to or assaulting or wrongfully restraining the prosecutrix and her father or to put them in fear of hurt or of assault or of wrongful restraint and extended threat i.e. Rs. 5 lacs/- is not paid, he will publish CD in public.
2. Accused Mr.Raj Kumar has been charge sheeted for the offence under section 506 of the IPC on the allegations that in the year 2007, being the father of accused Mr.Ashish Kumar, he extended threat ot Mr.Rakesh Goel, father of the prosecutrix that if the matter of rape and extortion is reported to the police, they shall be killed.
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 26.07.2011 and Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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after its committal, the case has been assigned to the Court of the Additional Sessions Judge-03, West, Delhi for 09.08.2012. Further, the case has been transferred and assigned to this Court (ASJ, Special Fast Track Court-01, West District, Tis Hazari Court, Delhi) for 05.01.2013 vide order bearing number 20/372/512/F.3.(4)/ASJ/01/2013 dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
4. After hearing arguments, charge for offence under section 376/384/452/506/34 of the IPC was framed against the accused Mr.Ashish Kumar to which he pleaded not guilty and claimed trial and charge for offence under section 506 of the IPC was framed against the accused Mr.Raj Kumar to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined ASI Jai Bhagwan as PW1, Dr. Pramod Arya as PW2, Mr. Ram Bhagat Singhal as PW3, Dr. Ashoo Gupta as PW4, Ms.Kamlesh Goel as PW5, Mr. Rakesh Goel as PW6, Mr. Rajesh Garg as PW7, HC Nirmala as PW8 and the prosecutrix as PW9.
6. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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offences and child witnesses" have been followed.
7. PW1, is the duty officer, who had recorded the formal FIR (Ex.PW1/A) in the present case.
8. PW2, is the doctor, who had medically examined the prosecutrix and her report (Ex.PW2/A) was prepared.
9. PW3, has deposed that there was some misunderstanding which the Market Association got amicably resolved between the accused persons and Mr. Rakesh Goel, father of prosecutrix. He had proved his statement (Ex.PW3/A). There was no dispute regarding giving threats or demanding money. The dispute was regarding the illicit relationship between accused and the prosecutrix.
10. PW4, is the doctor, who had proved the MLC (Ex.PW2/A) of prosecutrix, which was prepared by Dr. Manisha Arora as she has left the service of the hospital.
11. PW5, is the mother of the prosecutrix, has deposed that after five years ago but she do not remember the date, month and year. Her daughter told her that accused Ashish was troubling her. He used to ask her to bring money by putting in fear. Her daughter used to take the money without our knowledge and giving to the accused.(At this stage, witness has started crying and her evidence has stopped. After she has composed herself her evidence resumed.) She further deposed that after the MLC report of her Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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daughter was given by the doctor, they came to know that she has not been raped. The complaint case had been prepared by the lawyer and her daughter had only signed the same. Her daughter does not have any grievance against the accused. Now her daughter is happily married and they do not wish to pursue the case any further against the accused. She deposed that she just wants that the accused persons, who are living in her locality should not trouble her and her family.
12. As the mother of the prosecutrix was hostile, the Additional Public Prosecutor has cross examined her but nothing material for the prosecution has come forth. She has admitted that accused Raj Kumar also used to put pressure upon her daughter to bring money. She admitted that the lawyer of her daughter had filed a complaint case against the accused persons after consulting her daughter and her lawyer had not drafted the complaint at his own. She admitted that after the filing of the case against the accused persons, the behavior of accused persons changed to some extent and her daughter feel secure. She denied the suggestions that she is not making the true statement due to fear of accused persons as they might revenge from her daughter for making statement against them. She further deposed that her daughter is living happily in her married life that is why she is not interested in pursuing the case against the accused persons. In her cross examination, she admitted that her daughter and both the accused persons had approached the Hon'ble Delhi High Court for quashing the FIR, which was dismissed.
13. PW6, father of prosecutrix has deposed that at the time of Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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incident i.e. in the year 2007 her daughter was studying in the B.A IInd year but he did not recollect her exact date of birth but her year of birth is of 1987. Her daughter told him that accused Ashish and Raj Kumar used to harass her. They forced her daughter to bring money from the house. Her daughter also told him that she had been raped by accused. They tried to lodge a complaint case against the accused persons but police did not take any action. Thereafter, they hired a private counsel and got file a complaint case. The case was drafted by the counsel by the instruction of my counsel through his daughter. After filing the complaint case, they sold out residential premises due to fear of accused persons and shifted to Ludhiana. He had married his daughter in the year 2011. He did not want to pursue the case against the accused persons so that her daughter may live her married life happily.
14. As the father of the prosecutrix was hostile, the Additional Public Prosecutor has cross examined her but nothing material for the prosecution has come forth. He has admitted that her daughter had filed a complaint case against both the accused persons. He voluntarily stated that the said case was filed in the Court due to misunderstanding of my daughter. He has deposed that on the directions of Court, the FIR was lodged by the police on the said complaint case and his daughter was got medically examined in Sanjay Gandhi Memorial Hospital. He voluntarily stated that after medically examination of her daughter, he came to know that her daughter was not raped by accused Ashish Kumar. He had stated regarding raping of her daughter in his examination in chief as he had not seen her MLC till then. He has admitted that the Panchyat was organized on behalf of both the accused Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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persons and he also attended the said Panchyat and it was agreed that both the parties had amicably settled their dispute and nobody will take any action against each other in the order of the Panchyat (Ex.PW9/B). He has admitted that both the parties had approached the Hon'ble Delhi High Court for quashing of the proceedings of the present case, but the same was not allowed due to some technical flaw. He further admitted that he had deposed in his examination in chief against the accused persons due to the misunderstanding as till then he had not seen the MLC of his daughter. Now he can say that both the accused persons have not committed any offence and the deposition made by him that both the accused used to harass his daughter and forced her to bring money from the house is wrong and due to the misunderstanding. The deposition regarding accused Ashish Kumar raping his daughter is also wrong and due to the misunderstanding. Both the accused are innocent. He denied the suggestion the that the complaint case filed by his daughter is not based on misunderstanding but is on true facts and the accused never raped his daughter or he ever extorted money from his daughter. He further denied the suggestion that he deposing falsely as he had made compromise with the accused persons out of Court.
15. PW7, is the formal witness, who knows both the accused persons. He deposed that he did not know anything about the present case and he had not made any statement to the police. He was declared hostile and has denied the numerous suggestions given to him.
16. PW8, is the police witness, who had took the prosecutrix to the Sanjay Gandhi Memorial Hospital for her medical examination. After Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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medical examination, doctor handed over her MLC, the same handed over to the IO.
17. The prosecutrix, as PW9, has deposed that she know both the accused persons namely Ashish Kumar and Raj Kumar as she used to help her father in running his shop at Y 25-26 Camp No.1, Nangloi, Delhi where accused Ashish Kumar used to visit. Both the accused persons are present in the Court and she has correctly identified them. Gradually friendship develop between them. One day while the accused Ashish Kumar was dropping her in home, she had lost consciousness. The accused had dropped her home. Thereafter, he had told her on phone that he had done something wrong with her. She told her father about the incident on which her father spoke to accused Raj Kumar who is the father of accused Ashish Kumar and he apologized for the misbehavior of his son. At that time she had felt that accused Ashish Kumar may have raped her and under this misunderstanding she had made complaint. She had later realized that she had not been raped after she had seen my MLC. She has not been raped by accused Ashish Kumar. Both the accused have not committed any offence. Accused Ashish Kumar had taken some money from her 2-3 times which he had already returned. Under a misunderstanding, she had filed a complaint case (Ex.PW9/A) against both the accused persons on the basis of which FIR had been lodged. She had been medically examined in Sanjay Gandhi Memorial Hospital. She along with both the accused persons had approached the Hon'ble Delhi High Court for quashing of the FIR as it has been lodged under a misunderstanding but the petition was dismissed due to some technical flaw. She further deposed that it has been agreed between them that Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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they shall not take any legal action against each other. Both the accused persons have not committed any offence and are innocent.
18. As the prosecutrix was hostile, the Additional Public Prosecutor has cross examined her at length but nothing material for the prosecution has come forth. She has denied the suggestion that they compromised the matter with the accused persons that is why she is not supporting the case of prosecution as well as the contents of complaint case filed by her before the Court. She further denied that both the accused persons used to threaten her and accused Ashish Kumar raped her after intoxicating the cold drink offered by him to her. She denied that she had gone through the contents of the complaint case filed before the Court and before putting her signatures on the same and admitting the same to be correct. She denied the suggestion that she told the doctor at the time of my medical examination that she has been assaulted sexually 4 months back. She denied the suggestion that both the persons have put pressure upon her family members to depose in their favour that is why she is not supporting the case of prosecution. She further denied the suggestion that accused Ashish Kumar asked her to bring Rs.50,000/- as he had prepared a CD of her naked body or that she will distribute the copy of the said CD in the locality or that he threatened her brother and parents to kill, if money is not paid to him. She denied the suggestion that accused ever blackmail her and demands Rs.3 lacs from her. She admitted that a Panchyat order (Ex.PW9/B) had been held to settle the dispute between her and the accused persons. She voluntarily stated that the decision was taken as it has been revealed that accused Ashish has not committed any offence. She admitted that the contents of Ex.PW9/A specially para no.9 to 12 were Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code.
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incorporated under a misunderstanding. The accused has not committed any offence. She denied the suggestion that the contents of the complaint case more specifically para no. 9 to 12 contain the true facts. She denied the suggestion that she has been won over by the accused and out of fear of the accused she is deposing falsely. She denied the suggestion that the accused persons have committed the offence as elaborated in Ex.PW9/A and she is deposing falsely.
19. She has been cross examined by the accused wherein she has admitted that both the accused persons are innocent and have not committed any offence.
20. The prosecutrix, has not deposed an iota of evidence of her being raped at all. She has not even mentioned the word "rape" in her evidence nor has deposed anything incriminating against the accused Mr.Ashish Kumar.
21. In the circumstances, as PW1, the prosecutrix and her parents who are the star witnesses have turned hostile and have not supported the prosecution case and more importantly has not assigned any criminal role to the accused, the prosecution evidence is closed, declining the request of the Additional Public prosecutor for grant of further opportunity to lead evidence, as it shall be futile to record the testimonies of other witnesses, who are official in nature. Even PW 7 is hostile. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.
Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code. State versus Ashish Kumar & anr -:: Page 10 of 14 ::-
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22. Statements of both the accused persons under section 313 of the Criminal procedure Code (hereinafter referred to as the Cr.P.C.) are dispensed with as there is nothing incriminating against them when the prosecutrix is hostile and even the other important witnesses have not supported the prosecution case. Nothing material has come forth in their lengthy cross examination by the prosecution.
23. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
24. In the light of the aforesaid nature of deposition of the prosecutrix, PW9 and her parents, who happen to be the material witnesses, I am of the considered view that their deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
16. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
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25.Consequently, no inference can be drawn that the accused Mr.Ashish Kumar is guilty of raping the prosecutrix, extorting money from her or restrianing or threatening her. There is no material on record to suggest that the prosecutrix was raped. Also, no inference can be drawn that the accused Mr.Raj Kumar is guilty of threatening the prosecutrix. No case is made out against both the accused as there is no incriminating evidence against them.
26. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused are innocent and have not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
27. Consequently, no inference can be drawn that the accused Mr.Ashish Kumar is guilty of the charged offence under sections 376/384/452/506 of the IPC. There is no material on record to show that on one day in the last week of June 2007 at Y-25, Janta Market Camp No.1, Nangloi, Delhi within the jurisdiction of Police Station Nangloi he committed rape on the prosecutrix (name withheld to protect her identity) and after some days of June 2007, he intentionally put prosecutrix in fear of injury and dishonestly demanded Rs.50,000/- from prosecutrix. On 29.08.2007 at about 7.30pm, he committed house trespass by entering into the shop of the father of complainant in a drunken state having made preparations for causing hurt to or assaulting or wrongfully restraining the prosecutrix and her father or to put them in fear of hurt or of assault or of Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
FIR No. 900/2007, Police Station Nangloi, Under section 376/384/452/506/34 of the Indian Penal Code. State versus Ashish Kumar & anr -:: Page 12 of 14 ::-
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wrongful restraint and extended threat i.e. Rs. 5 lacs/- is not paid, he will publish CD in public. Nor there is any evidence on the record to suggest that the accused Mr.Raj Kumar is guilty of threatening the prosecutrix.
28. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape, extortion, wrongful confinement.
The evidence of the prosecutrix and her parents makes it highly improbable that such an incident ever took place.
29. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against both the accused persons, Mr. Ashish Kumar and Mr. Raj Kumar.
30. Consequently, both the accused, Mr.Ashish Kumar and Raj Kumar, are hereby acquitted of the charge for the offence under section 376/384/452/506/34 and 506 of the IPC respectively.
31. Compliance of section 437-A Cr.P.C. is made in the order sheet.
32. Case property be destroyed after expiry of period of limitation of appeal.
33. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
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not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
34. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
35. After the expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 02nd day of February, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 05 of 2013.
Unique Case ID Number : 02401R0355002011.
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