Delhi District Court
State vs . Avinash Viyogi on 26 February, 2020
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No. : 382/19
State
Versus
Avinash Viyogi,
S/o Sh. Chand Prasad,
R/o Village - Nutan Para, Koyoria Para,
Subzi Mandi, PSMursidabad,
WEST BENGAL.
FIR NO. : 394/18
POLICE STATION : S.P. BADLI
UNDER SECTION : 376/506/174A IPC
Date of Committal to Sessions Court : 08.07.2019
Date on which Judgment reserved : 05.02.2020
Date on which Judgment announced : 26.02.2020
Present: Shri V.K. Negi, ld. Addl. PP for State.
Shri Ankur Sharma, ld. Legal Aid Counsel for accused.
JUDGMENT
1. The accused has been forwarded to face trial for raping and threatening the prosecutrix.
State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 1 of 8
2. The victim made complaint to police on 07.05.2018 that she met accused Avinash three years ago and fell in love with him. He established physical relations with her on the false promise of marriage and due to that relationship, she conceived and when she told him about pregnancy and asked to marry her, he threatened to kill and asked her to terminate pregnancy.
3. On 19.08.2019, charge under section 376(2)(n)/506/174A IPC was framed against the accused. He pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined four witnesses.
5. As PW1, the prosecutrix deposed that accused was her husband from whom she had two children and that she was living happily with him. She further deposed that due to some misunderstanding, she made a complaint against him.
6. PW2 W/SI Sushila deposed that after receipt of complaint Ex.PW1/A on 07.05.2018, she got victim medically examined through Ct. Rajpati, prepared rukka Ex.PW2/A and got the case FIR Ex.PX13 registered. She further deposed that she inspected the spot and prepared rough site plan Ex.PW1/B at the instance of prosecutrix and got recorded her statement u/s. 164 Cr.P.C. She made efforts to trace the accused but all in vain and on 09.10.2018, he was declared P.O. PW3 HC Ravinder deposed that he went to the address of the State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 2 of 8 accused on 11.08.2018 but he was not found residing there. He read over the process in general public and copy of the same was pasted on the given address and another copy was pasted on the notice board of Rohini Court complex. His detailed report in this regard is Ex.PW3/B. He further deposed that the process was published in two newspaper also namely Nav Bharat Times and The Pioneer, Ex.PW3/C and Ex.PW3/D respectively.
PW4 ASI Dharambir deposed that on 29.04.2919 at about 7:15 am he alongwith Ct. Sajjan was present at Badli Metro Station in the search of POs and at that time, an informer told him that a person namely Avinash i.e. accused was present in his jhuggi and if raided, he can be apprehended. He verified from the record of PS and came to know that accused Avinash was declared P.O. in the present case by the court of Ms. Neha Gupta, Ld. MM vide order dated 09.10.2018. Thereafter, he conducted raid and accused was apprehended and arrested vide memos Ex.PW4/A and Ex.PW4/B. He further deposed that he prepared kalandra Ex.PW4/C and gave information to IO. The accused was got medically examined and produced in the court.
7. Under section 294 Cr.P.C., the accused admitted following documents: S. No. Name of the documents Admitted Denied Exhibited i. Dr. Ankit Sharma and Dr. Yes - Ex.PX1, Ex.PX2, Satyanarayan Panda of BSA Ex.PX3, & hospital to prove medical Ex.PX4 State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 3 of 8 examination of victim 'S' vide MLC No. 6916/19, Krishan S/o. Avinash Viyogi MLC No. 6917/19, Baby Arjun S/o Avinash Viyogi MLC No. 6918/19.
Avinash accused, MLC No. 6915/19.
ii. MLC cum Potency opinion Yes - Ex.PX5 No.073/19, dt. 20.05.19 of the accused prepared by Dr. Brijesh Narayan Singh, BSA hospital iii. ASI Ranbeer to prove that the Yes - Ex.PX6 & accused was arrested and Ex.PX7 disclsure statement.
iv. MHC(M) ASI Satbir to prove Yes - Ex.PX8 statement u/s. 161 Cr.P.C. and deposition of exhibits in FSL Rohini vide RC No.163/21/19.
v. Ct. Kamal statement u/s. 161 Yes Ex.PX9 Cr.P.C. of deposition of exhibits in FSL vide RC No.163/21/19 vi. MLC of the prosecutrix Yes - Ex.PX10 prepared by Dr. Renu Rana in BSA hospital vii. Proceedings and certificate u/s. Yes - Ex.PX11 & 164 Cr.P.C., dt. 08.05.2018, Ex.PX12 prepared by Ms. Richa Manchanda, ld. MM.
viii. Case FIR registered by ASI Yes - Ex.PX13 Ranbir Singh.
ix. Proceedings done in the Yes - Ex.PX14 presence of lady Ct. Rajpati like medical examination of the victim.
State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 4 of 8 x. Statement u/s. 161 Cr.P.C. of Yes - Ex.PX15 Ct. Sajjan, who was present at the time of arrest of accused alongwith IO.
xi. FSL result dated 01.08.2019 Yes - Ex.PX16 xii MLC No.5921, dt. 29.04.19 Yes - Ex.PX17 prepared by Dr. Meet Kumar, BSA hospital.
xiii. Order dt. 09.10.18 passed by Yes - Ex.PX18 ld. MM, Ms. Neha Gupta Singh by which accused was declared PO.
xiv. Investigation/proceedings Yes - Arrest memo
conducted by IO W/SI Rakhi already Ex.PX7,
and who filed the disclosure
supplementary chargesheet. statement
Ex.PX6 and
Potency test of
accused already
Ex.PX5.
8. In statement under section 313 Cr.P.C., the accused denied every incriminating material put to him. He submitted that the prosecutrix was illiterate and due to that reason, a false complaint was got signed from her. She gave tutored statement u/s 164 Cr.P.C. He further submitted the P.O. proceedings against him were conducted mechanically and police never visited his native place where he was residing.
9. Not a single witness has been examined in defence.
10. The victim was declared hostile and in crossexamination by ld. additional PP, she deposed that she did not tell in statements State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 5 of 8 Ex.PW1/A that about three years back, she met accused and fell in love with him or that he accused established physical relations with her on false promise of marriage or that he did not solemnize marriage with her or that she became pregnant and accused threatened her to abort the pregnancy otherwise he would kill her. She admitted it correct that she was taken to the hospital by police for medical examination and she was produced before ld. MM for recording her statement u/s 164 Cr.P.C. Ex.PW1/C where she made statement on the tutoring of police. She further admitted it correct that site plan Ex.PW1/B was prepared on her pointing out.
In examinationinchief, the victim deposed that the accused was her husband and due to some misunderstanding, she made complaint against him and that she did not want to say anything against him as she was living happily with him. She further deposed that two children were born from that wedlock.
11. As per FSL report Ex.PX16, the DNA extracted from the blood of accused and victim is matching with the DNA extracted from the blood of Krishna and Arjun. The FSL report opines that accused and victim are biological father and mother of elder son Krishna and younger son Arjun. The report proves only one fact that there was sexual intercourse between the accused and victim. It does not prove that the accused had promised to marry her and after establishing physical relation, he refused to marry her. So, FSL report is not extending any State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 6 of 8 help to the prosecution case.
12. In view of above discussion, it is held that the prosecution has failed to prove the case under section 376/506 IPC.
13. On the issue of not appearing despite publication of proclamation, PW3 HC Ravinder deposed that he executed the process U/s 82 Cr.P.C. Ex.PW3/A on 11.08.2018 but the accused was not found residing on the given address. He read over the process to the general public of the area and pasted copy thereof on the given address and another copy was pasted on the notice board of Rohini Court. He further deposed that the proclamation was published in newspaper also.
PW4 ASI Dharambir is witness to the arrest of the accused U/s 41.1(c) Cr.P.C.
Under section 294 Cr.P.C., the accused admitted that he was arrested by ASI Ranbir.
14. Process U/s 82 Cr.P.C. was directed to be issued on 30.04.2018. It was executed by PW3 vide report Ex.PW3/B on 11.08.2018 and the accused was to appear in the court on 30.09.2018. It was published in newspaper titled as 'The Pioneer' dated 30.08.2018. He was declared proclaimed offender on 09.10.2018 when he did not appear in the stipulated period.
It has been admitted by the accused that he was arrested by ASI Ranbir vide arrest memo Ex.PX7 in this case on 04.05.2019. He did not place on record any document to show that he had appeared in the State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 7 of 8 court within the stipulated period of appearance mentioned in the process U/s 82 Cr.P.C. In this way, the prosecution has successfully established the case U/s 174A IPC. Accordingly, the accused is held guilty under section 174A IPC. UMED Digitally signed by UMED SINGH SINGH GREWAL Date: 2020.02.28 GREWAL 10:29:29 +0530 Announced in the open Court (Umed Singh Grewal) On this 26th February 2020 ASJ: Special FTC (North) Rohini Courts: Delhi State vs. Avinash Viyogi S.C. NO.382/19 // PS S.P. Badli // FIR No.394/18 page 8 of 8