Delhi District Court
State vs . Ravinder @ Bittoo on 20 October, 2016
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS
JUDGE (SFTC), DWARKA COURTS, NEW DELHI.
SC No. 441397/16
State vs. Ravinder @ Bittoo
FIR No. 256/2016
U/s. 376/328/506/509 IPC
P.S. Najafgarh
19.10.2016
ORDER ON CHARGE :
1.The case of the prosecution, in brief, is that the prosecutrix 'X' (real name withheld in order to conceal her identity) and accused were known to each other being neighbours. In the month of January 2011, the prosecutrix was having cough. The accused brought Corex cough syrup consuming half bottle of which the prosecutrix became unconscious. The accused, thereafter, committed rape upon her. When the prosecutrix regained consciousness, the accused showed obscene photographs of the prosecutrix to her. The accused also threatened to kill her and her children if the acts committed by the accused were disclosed to anyone. It is further the case of the prosecution that on the basis of alleged threats, accused continued to rape the prosecutrix. On 1.6.2016 the accused again threatened to kill the prosecutrix in case of her refusal to visit his house.
State v.Ravinder @ Bittoo Page 1 of 8((FIR No.256/16, PS Najafgarh)
2. On the complaint of the prosecutrix with the police on 01.06.2016, present FIR was registered for the commission of offences punishable u/ss. 328/376/509/506 IPC.
3. During investigation prosecutrix was medically examined at RTRM Hospital, New Delhi on 01.06..2016. Her statement u/s 164 Cr.PC was recorded by Ld. MM, Dwarka Courts, New Delhi on 02.06.2016. The statements of witnesses conversant with the facts were recorded. After completion of investigation, a chargesheet was filed against the accused for commission of offences under Sections 328/376/509/506 IPC.
4. I have heard Sh. Y S Rathi, Ld. Counsel for the accused and Ms. Satvinder Kaur, Ld. APP for the State.
5. Ld. Counsel for the accused has contended that no stomach wash was sent for examination to ascertain as to what was administered was stupefying intoxicating or unwholesome drug/poisonous substance in order to attract the offence u/s 328 IPC. According to him, ingredients to S.328 IPC are not attracted to the present case. Secondly, it is contended that the prosecutrix kept quite for about five years which shows the falsity of the allegations. Thus, there is delay in lodging the FIR. Lastly, it is contended that the prosecutrix had stood as a witness in one of the Sale State v.Ravinder @ Bittoo Page 2 of 8 ((FIR No.256/16, PS Najafgarh) Deed executed by the accused. The mobile phone of the accused was having a SIM in the name of the prosecutrix which shows the closeness and friendly relations between them. Ld. Counsel has prayed that there is no sufficient material for framing charge against the accused and, therefore, he is liable to be discharged in the present case. In support of his contentions, Ld. Counsel for accused has relied upon judgment Priya Sharan Maharaj v. State of Maharashtra, 1995 Cri. L.J. 3683.
6. On the other hand, Ld. APP for the State has contended that there is sufficient material on record for framing charges against the accused.
7. I have gone through the case file and the judgment cited before me. The essential ingredient of Section 328 IPC is that the victim should be administered poison or any stupefying intoxicating or unwholesome drug or other thing. The forensic examination of the stomach wash in order to determine that the substance that administered was poison is, therefore, imperative for ascertaining the commission of the offence punishable u/s 328 IPC. Admittedly, no stomach wash of the prosecutrix was taken for forensic examination in the present case. The averment made by the prosecutrix that she became unconscious after consuming Corex cough syrup cannot be said to be final to reach to the State v.Ravinder @ Bittoo Page 3 of 8 ((FIR No.256/16, PS Najafgarh) conclusion that the syrup administered was either poison or any stupefying intoxicating or unwholesome drug. Though not referred to or relied upon, for taking this view I am supported with the judgment Sanjay Singh v. State, Crl. Appeal No.636/2005 decided on 23.4.2008 by the High Court of Delhi speaking through Hon'ble Mr. Justice S. Murlidhar. As there is no medical evidence on record that the substance administered was either poison or stupefying intoxicating or unwholesome drug, no prima facie case u/s 328 IPC can be said to be made out against the accused.
8. The FIR in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is well settled proposition of law that mere delay itself cannot be a ground to disbelieve the entire case of the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given case. Though not referred to or relied upon, in case of Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to State v.Ravinder @ Bittoo Page 4 of 8 ((FIR No.256/16, PS Najafgarh) make deliberation upon the complaint and to make embellishment or even make fabrications.
9. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified in the facts and circumstances of a given case. However, in the present case there is delay of more than five years in lodging the FIR. In the FIR as well as in her statement u/s 164 Cr.PC, no averment was made by the prosecutrix that she was raped on 1.5.2016 by accused. However, in her statement u/s 161 Cr.PC dated 02.06.2016 it is mentioned that for the last time accused raped the prosecutrix on 1.5.2016. Prosecutrix was medically examined on 01.06.2016 at RTRM Hospital, New Delhi. Doctor has written on the MLC that she did not find any external injury on the person of the prosecutrix. Prosecutrix was a married woman. There is no medical evidence to support the version of the prosecutrix that she was raped as she was taken to the hospital after about one month of the alleged last incident. Accused was also medically examined by doctor on 01.06.2016 and 02.06.2016 at RTRM Hospital, New Delhi which was a sheer formality.
10. From the chargesheet and other material placed on record it is clear that no effort was made by the investigating agency to recover the State v.Ravinder @ Bittoo Page 5 of 8 ((FIR No.256/16, PS Najafgarh) alleged obscene photo/video from the mobile phone of the accused. The accused was using the mobile number 99537xxxxx, the SIM of which was in the name of the prosecutrix. From the CDRs which have been placed on record by the prosecution, it is clear that accused and prosecutrix were in regular touch with each other.
11. Though not referred to or relied upon, it has been observed by Madhya Pradesh High Court in judgment - Sunder Singh v. State of M.P., Cr.R No.607/2013 decided on 3.9.2013 as under :
"42. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself have placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken favouring the accused, the court shall not put the accused to harassment by asking him to face a trial. Please see: State of Maharashtra v. Som Nath (1996) 4 SCC 659. In the case at hand, if the Court allowed to asking applicant face the trial on above discussed evidence, definitely it will amount to put the applicant for harassment."
12. After examining the documentary as well as oral evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted, before it is challenged by cross examination or rebutted by defence evidence, if any, is not showing that accused committed the alleged offences for which he is being prosecuted State v.Ravinder @ Bittoo Page 6 of 8 ((FIR No.256/16, PS Najafgarh) because of following reasons:
(a) There is delay in lodging the FIR which has not been adequately explained.
(b) In view of the judgment Sanjay Singh (supra), ingredients of Section 328 IPC are not attracted to the present case.
(c) The evidentiary value of the medical evidence is zero.
(d) No effort was made by the prosecution to recover the alleged obscene photos/video from the mobile phone of the accused.
(e) As per CDRs, accused and prosecutrix were in regular touch with each other.
(f) The accused was using the mobile number, the SIM of which was in the name of the prosecutrix.
13. Considering the facts and circumstances of this case, after sifting and weighing the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused, I am of the opinion that the materials placed before the Court do not disclose the grave suspicion against the accused for framing a charge against him for committing offences punishable under Sections 328/376 IPC. Accordingly, accused in the present case is discharged for the offences u/s 376/328 IPC. Other offences are triable by the Court of Ld.MM.
State v.Ravinder @ Bittoo Page 7 of 8((FIR No.256/16, PS Najafgarh) Accused is directed to appear before the Court of concerned Ld.MM, Dwarka Courts, New Delhi on 21.10.2016 who shall proceed further in the matter in accordance with law.
Dictated & announced today in (PRAVEEN KUMAR) open court on 19.10.2016. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
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