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State vs . Rahul @ Mayank on 29 November, 2013

IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST
 & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI

SC No.249/13
Unique Case I.D. No.02402R0223752013

                                  Date of Argument :20.11.2013
                                  Date of Order    :29.11.2013

                                                      FIR No.:299/13
                                                       PS: Shakarpur

                     State Vs. Rahul @ Mayank

ORDER ON CHARGE


               The facts of the prosecution case in brief are
that ____x_____, aged 20 years, D/o ______________y_______,
R/o___________________z____________________________, herein
after referred to as the prosecutrix, lodged a report at PS
Shakarpur alleging that on 10.04.2013 at 10.00 AM, she
received       a   telephone    call   on   her      mobile    number
______z-1____________          from    a     unknown           number
9999692665 but she ignored the same. Thereafter, she
continued to get calls and messages from said number. On
14.04.2013

at about 10.00 AM, she again received a call which was received by her and the caller disclosed his SC No.249/13 State v. Rahul @ Mayank Page 1 of 9 name as Rahul, herein after referred to as the accused. He told her that he saw her near Lovely Public School about six months ago and since then she had been procuring her details because he liked her. Accused thereafter, asked her to meet her near V3S Mall near Nirman Vihar Metro Station on 15.04.2013 but she refused. The accused had been pressurizing her to meet him. She told him that she would tell all these activities of the accused to her family members and also would make complaint to the police. Then, he threatened to commit suicide and to make her responsible for that. On 15.04.2013 at about 8.15 AM, when she arrived at Akshardham Metro Station for going to her institute, the accused made a call to her and told her to immediately come near Nirman Vihar Metro Station failing which he would commit suicide. Due to fear of her defamation, she arrived at Nirman Vihar Metro Station where accused met her and talked her. By enticing her, accused took her to Eastinn Guest House, Room No. 301 near Nirman Vihar Metro Station where he expressed his love towards her and also pressurized her to make physical relations with her. When she declined to do so, he threatened her to commit suicide and in that situation despite her refusal, the accused made physical relations SC No.249/13 State v. Rahul @ Mayank Page 2 of 9 with her. He also took photos and prepared a video when she was in naked condition. At about 2.30 PM, they came out from the said lounge and thereafter, he took her in a room in Waha-jee-Waha restaurant and threatened her that she would tell about the incident to other and he would put her video and photos on Internet and that she would be defamed. He also warned her that whenever he would call her, she would have to come. She was scared and returned to her house. The accused continued to call her and continued to send message to her but she did not reply as she was mentally disturbed. On 16.04.2013, she narrated all the incidents to her family members and on 17.04.2013, she and her family members arrived at PS and lodged her report reiterating her allegations that accused to whom she was unknown earlier, committed sexual intercourse with her forcibly against her will and without her consent. On the basis of her report FIR No. 299/13 at PS Shakarpur under Section 376/384/506 IPC was recorded. Prosecutrix was sent to Lal Bahadur Shastri Hospital where MLC was prepared and her internal examination was conducted. Doctor observed that her hymen was found torn. The accused was arrested on 22.04.2013 and his arrest memo and personal search SC No.249/13 State v. Rahul @ Mayank Page 3 of 9 memo were prepared. He was interrogated and his disclosure statement was recorded. He was also taken to Lal Bahadur Shastri hospital and his MLC was also prepared. Doctor opined that there was nothing to suggest that patient was not capable to perform sexual intercourse. Prosecutrix was produced before Ld. Metropolitan Magistrate on 243.04.2013 and her statement under Section 164 of the Code of Criminal Procedure, herein after referred to as the Code, was recorded in which she reiterated all the averments made in the report to the police. The IO also inspected the place of occurrence and prepared the site plan. All the exhibits obtained by the doctor were handed over to the police official who took the prosecutrix and the accused for their medical examination were taken into possession vide various seizure memos and were sent to FSL. The IO also obtained documents from the concerned guest house and seized the same. After recording of statement of various witnesses under Section 161 of the Code and on completion of investigation filed a charge sheet against the accused for his trial for the offences punishable u/s 376/384/506/354 (C)/354 (D) IPC.

2. I have heard arguments on charge addressed by Ld. Defence Counsel and Ld. Substitute Additional Public Prosecutor for the State and perused file.

3. During the course of arguments Ld. Defence Counsel vehemently referred to call details record of mobile phone of prosecutrix and accused and emphasized on the point that prosecutrix had been making repeated calls to the accused prior on and after the alleged occurrence for a considerable long time and these calls apparently show that the prosecutrix was interested in the accused and no such incident as alleged by the prosecutrix had taken place.

4 During the course of arguments Ld. Defence Counsel further relied on a case Virender Singh vs. State (Delhi), 2010 (2) JCC 1350, wherein conviction of accused was set aside as it was found that there was sex apparently with the consent of the prosecutrix.

5. On the other hand Ld. Substitute Additional Public Prosecutor argued that there is sufficient material on record to frame charge against the accused for the SC No.249/13 State v. Rahul @ Mayank Page 5 of 9 alleged offences.

6. My attention goes to a case Union of India Vs. Prafulla Kumar, AIR 1979 SC 366 (1) wherein the Apex Court observed that:

"10. Thus, on a consideration of authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceedings with the trial. (3) The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

7. Thus, the court at the time of framing of charge as provided under Section 227 of the Cr. P.C., has to see the material to enable it to decide prima facie whether Court should proceed with trial or not. At this stage, the Court is not to scan evidence as if it is to acquit or convict the accused. Truth, veracity and effect of evidence are not to be judged at the stage contemplated by section 227 of the Cr.P.C. Absence of ground for proceeding against the accused means absence of a prima facie case, the Court may sift evidence to see whether ingredients of the alleged offences are in existence or not? Where there is a strong suspicion existing at the initial stage which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the any of the accused. Thus, it is crystal clear that at the time of forming an opinion on the point of charge, the Court has to form a prima-facie opinion of the matter. No meticulous assessment of evidence is permissible at that juncture.

8. On perusal of file and particularly statement of the prosecutrix recorded by Ld. M.M. u/s 164 Cr.P.C. I find that SC No.249/13 State v. Rahul @ Mayank Page 7 of 9 she, inter alia, stated that she and accused were in conversation for a considerable long time. Once the accused called her on 15.4.2013 and he took her to Estinn guest house where she was beaten, threatened and terrorized. It was told to her that there was nobody to hear her and that he would tear off her clothes and then disclosed all the incident to her father. By making a telephone call he asked his uncle (chacha) to come. She was scared thinking that so many person would come and misbehave with her. In that state of her mental status accused Rahul committed sex with her five times and also prepared video and threatened her to put the video on net if she tells the incident to others. Later on he was taken to hukka bar type restaurant and the accused threatened her that he would commit suicide and make her responsible by mentioning her name in the suicide note. He also warned her to make him telephone calls after every two hours.

9. On considering the rival contentions of Ld. Defence Counsel and Ld. Substitute Additional Public Prosecutor, I find that there is sufficient material on record in the form of reports, MLCs and statement recorded under SC No.249/13 State v. Rahul @ Mayank Page 8 of 9 Section 164 and 161 of the Code, etc. which raise a grave suspicion against the accused that he might have committed the offence of rape punishable u/s 376 IPC, offence of criminal intimidation punishable under Section 506 IPC, offence of voyeurism punishable under Section 354 (C) IPC and offence of staking punishable under Section 354 D IPC. However, I do not find sufficient material on record for framing of charge against accused for the offence of extortion punishable u/s 384 IPC.

Accused is discharged for the offence of extortion punishable u/s 384 IPC.

Accordingly charge against accused for the offences punishable under Section 376/506/354 C/354D IPC be framed.

Announced in the Open Court Dated:29.11.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.249/13 State v. Rahul @ Mayank Page 9 of 9