Delhi District Court
(Judgment) State vs . Salman on 12 January, 2018
(Judgment) State Vs. Salman
SC No.167/15
FIR No.189/12
PS : Aman Vihar
U/s.376/366/506 IPC
IN THE COURT OF SH. SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE, SPECIAL FAST TRACK COURT,
NORTHWEST, ROHINI, DELHI
In the matter of:
SC No.167/15
FIR No.189/12
Police Station : Aman Vihar
Under Sections : 376/366/506 IPC
State
Versus
Salman
S/o. Nizamuddin
R/o. E41, Inder Enclave,
Budh Bazaar Road,
Delhi ......Accused
Date of FIR : 08.07.2012
Date of institution/committal : 05.09.2013
Charge framed on : 27.11.2013
Arguments advanced on : 10.01.2018
Judgment Pronounced on : 12.01.2018
Decision : Acquitted
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. M.S. Hussain, Ld. Counsel for accused.
Page 19 of 19
(Judgment) State Vs. Salman
SC No.167/15
FIR No.189/12
PS : Aman Vihar
U/s.376/366/506 IPC
JUDGMENT
1. Accused Salman s/o. Nizamuddin is facing trial herein for the offence u/s.376/366/506 IPC.
2. Factual matrix of the matter is that prosecutrix 'P' has got her complaint lodged on 08.07.2012, alleging therein that she is residing with her parents. Prosecutrix states that she has earlier got married with one 'S' about three years ago, however due to family disputes, she is living separately from her husband. Prosecutrix further states that accused Salman used to come for doing his work in the area in Prem Nagar. She became acquainted with accused. On 02.02.2013, accused Salman stated to have come to the house of prosecutrix and informed her that her husband 'S' has already solemnized second marriage and further told that she should also perform marriage with him. Accused stated to have agreed to the proposal of accused Salman.
3. It is further mentioned in the complaint that on 08.02.2012, accused Salman came to her house and took her on the pretext of performing Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC marriage with her and brought her to House No. H14, Bakkarwala, JJ Colony, Nangloi, New Delhi, where accused Salman had taken one room on rent. Prosecutrix alleges that at that time, accused told her that since he is not having money available with him, therefore he will perform Court marriage with her after two days. On the same night, accused Salman stated to have asked the prosecutrix to establish physical relations with him. Prosecutrix stated to have denied for the same. She alleges that accused forcibly established physical relations with her even prior to marrying with her. She further alleges that accused Salman established physical relations with her on numerous times on the assurance of marriage. It is further alleged that on 15.04.2012, accused Salman had given two tablets to her, when he came to know that prosecutrix is pregnant. She alleges that after taking those tablets, she had undergone an abortion. On 16.04.2012, accused Salman stated to have told her that he will take her to his house in Inder Enclave. When he took her to his house, father and sister of accused stated to have denied for the Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC marriage as prosecutrix belonged to Hindu religion. Prosecutrix alleges that since then, accused denied to perform marriage with her and further alleges that accused had committed wrong act with her by giving assurance of marriage. Prosecutrix states that as and when she goes to the accused, he beats her and has started giving her threats.
4. On such complaint of prosecutrix 'P', present case was registered. During investigation, her medical examination was got conducted. Statement of prosecutrix u/s.164 Cr.P.C. was also got recorded by the IO, wherein she has alleged similar facts and has stated that accused had established physical relations with her by giving false assurance of marriage. During the investigation, accused was arrested. After completion of investigation, chargesheet was filed. Considering the material available on record, Ld. Predecessor of this Court vide order dated 27.11.2013 framed the charges, as aforesaid, to which accused pleaded not guilty and claimed trial. Page 19 of 19
(Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC
5. In order to substantiate the charge, prosecution has examined as many as 13 witnesses.
PW Name of witness Nature of Documents proved witness PW1 HC Ajit Singh Duty Officer PW1 has proved the handing over of tehrir sent by IO, on the basis of which, FIR was registered vide Ex.
PW1/A and endorsement thereupon as Ex. PW1/B. PW2 HC Surender Singh MHCM He was posted as MHCM in PS Aman Vihar and had made the relevant entries regarding sealed exhibits deposited with him in the present case. The relevant entries are proved as Ex. PW2/A (colly), PW2/B (Colly) and copy of acknowledgment Ex.
PW2/C respectively.
PW3 Dr.Aditi Aggarwal Conducted She has medically medical examined the prosecutrix examination and proved her MLC Ex.
of the PW3/A. prosecutrix PW4 Dr. M. Das Conducted He had examined the Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC medical accused Salman and examination prepared his MLC Ex.
of accused PW4/A after his medical examination.
PW5 W/Ct. Smanta Witness She took the prosecutrix
took the 'P' for getting her
prosecutrix medical examination for her conducted at SGM medical Hospital, but since examination prosecutrix was suffering from some problem, therefore she was admitted in the hospital.
PW6 Ct. Randhir Singh Deposited He took the sealed
the case exhibits from MHCM
property at and got the same
FSL deposited in FSL and
handed over the receipt
to MHCM.
PW7 Dr. Bina Conducted She has also medically
medical examined the prosecutrix
examination vide MLC already Ex.
of the PW3/A.
prosecutrix
PW8 Sh. Manish Khurana Recorded He has proved the
statement recording of statement of
u/s.164 prosecutrix u/s.164
Cr.P.C. Cr.P.C. His has proved
the application moved by
IO/SI Sumt as Ex.
PW8/A, proceedings qua
recording statement of
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(Judgment) State Vs. Salman
SC No.167/15
FIR No.189/12
PS : Aman Vihar
U/s.376/366/506 IPC
prosecutrix as Ex.
PW8/B, statement of
victim Ex. PW8/C. PW8
also proved the
certificate regarding
correctness of recording
statement Ex. PW8/D.
The witness further
directed the Ahlmad to
give copy of the
proceedings to the IO
and also to send the
proceedings before the
Concerned Court. The
witness further proved
the application moved by
IO for getting copy of
the proceedings, vide Ex.
PW8/E.
PW9 HC Sudhir Kumar Witness of He had joined the
investigation investigation with IO and other staff and on receipt of secret information, accused was arrested vide arrest memo and personal search memo Ex. PW9/A and PW9/B respectively.
Accused was taken to hospital for getting his medical examination conducted and after that, the doctor handed over Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC sealed exhibits pertaining to the accused, which were taken into police possession vide seizure memo Ex. PW9/C. PW10 Anita Chhari Witness She has examined the examined sealed parcels received the sealed in FSL regarding exhibits at accused and after FSL examining the same, she gave her report Ex.
PW10/A. PW11 'P' Prosecutrix/ She had narrated the complainant incidents leading to registration of FIR. She has also proved her complaint Ex. PW11/A. Thereafter, her medical examination was conducted vide Ex.
PW3/A. She has also proved the site plan prepared by the IO at her instance Ex. PW11/B. She has also proved recording of her statement u/s.164 Cr.P.C., which is Ex.
PW8/C. The witness had identified her cloth (Salwar) as Ex. P1.
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(Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC PW12 Inspector Anita Investigating The witness has deposed Sharma Officer about the steps taken by her during the course of investigation. She has given the details of steps taken by her and sent the prosecutrix through Ct.
Smanta for getting her medically examined. She has proved her endorsement on the statement of complainant Ex. PW11/A as Ex.
PW12/A and on the basis of which, present case FIR was registered.
PW13 further deposed about arrest of accused on receipt of secret information vide arrest memo and personal search memo Ex. PW9/A and PW9/B respectively.
She further deposed about the pointing out memo prepared at the instance of prosecutrix as Ex. PW12/B. She further deposed about sending the accused to SGM Hospital for getting his medical examination conducted and after his medical Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC examination, doctors handed over sealed exhibits of the accused which were taken into possession vide seizure memo Ex. PW9/C. Thereafter, accused was remanded from the concerned Court.
PW13 SI Neeraj Witness She has filed the charge filed the sheet in the present case.
chargesheet By that time, FSL result
and FSL was awaited and on
result receipt of the same, she
filed the FSL result Ex.
PW10/A in the Court
vide her application Ex.
PW13/A.
6. Upon completion of prosecution evidence, accused was called upon to explain and all the incriminating evidence put to him u/s.313 Cr.P.C. wherein he denied the entire evidence and has stated that he had never resided with the prosecutrix in the area of Bakkarwala and has also denied to have made physical relations with her. Accused states that he is innocent and has been falsely implicated.
7. No evidence was led in defence.
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(Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC
8. I have heard Sh. Himanshu Garg, Ld. Addl. PP for the State and Sh. M.S. Hussain, Ld. Counsel for the accused. Appreciation of evidence of prosecutrix
9. As is evident from the above discussion of the facts, prosecutrix has alleged that accused Salman had informed her that her husband has already performed second marriage and accused offered that he can perform marriage with her and will keep her happy. On such proposal of the accused, prosecutrix agreed, but thereafter before marriage, accused alleged to have established physical relations with her on numerous times, but thereafter did not marry her. If we consider the evidence of prosecutrix (PW11), she has testified certain different facts, which do not find mentioned either in her statement given to the police, or in her statement recorded u/s.164 Cr.P.C.
10. Prosecutrix/PW11 has testified that accused Salman proposed her for marriage by telling her that her husband has also got married somewhere else. PW11 further alleges that accused Salman has Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC pressurised her for performance of marriage by making phone calls to her and by standing outside her house continuously for 2 / 3 days. PW11 further says that friends of accused also used to call her and tell her that accused has cut his hand and he loved her a lot. PW11 says that she agreed for the performance of marriage with accused. PW11 says that accused told her to come with him to stay in a rented accommodation at Bakkarwala. PW11 says that she told the accused that it would not be possible for her to come back, if she goes with him. Her parents would not accept her and would not support her. PW11 further testifies that accused assured her not to worry and therefore, on 08.02.2012, she with her son went with the accused Salman and accused stated to have kept her in a room taken on rent. PW11/prosecutrix further testifies that accused thereafter established physical relations with her on that night by telling her that they are going to perform marriage tomorrow. PW11 further deposes that on the next day, when she asked for performance of marriage, accused told her that he had to go to meet his father at house and to bring Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC money and thereafter, he would see for the performance of marriage.
11. PW11 further testifies that accused thereafter started denying performance of marriage on one pretext or the other despite her asking and insistence. PW11 further states that she did not know what to do as she could not go back to her parental home and could not tell to anyone at Bakkarwala because accused had told everyone that they are already married. PW11 says that in such circumstance, she had no option but to wait for the marriage with accused.
12. PW11 further testifies certain new facts, which did not find mentioned in her previous statement and she interalia testifies that on 15.04.2012, when she was having some headache, accused gave her some medicine. PW11 at that time asked the accused as to whether those medicines are save or not as she was pregnant at that time. Accused told her not to worry. PW11 stated to have consumed the medicine and thereafter her pregnancy was got terminated. PW11 says that on 16.04.2012, accused told that we would stay at his house with his parents. He further asked her to pack her Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC belongings and thereafter left. PW11 says that he did not come thereafter and he even stopped picking up her phone calls. PW11 says that thereafter she went to the house of cousin of accused where his aunt (Mousi) met and she disclosed about entire incidence to her from the beginning. She stated to have told the prosecutrix to go back to her family members as accused Salman is stated to be of very angry nature. PW11 says that thereafter, she was being intimidated and could not go anywhere. Later, she stated to have lodged the complaint, which is Ex. PW11/A. PW11 was also shown her statement recorded u/s.164 Cr.P.C., which is Ex. PW8/C.
13. From the evidence of the prosecutrix, as discussed above, first thing to be noted is that prosecutrix was admittedly married already and having one child with her. Prosecutrix in her crossexamination has admitted that her husband 'S' continued to be her husband. PW11 has further admitted in crossexamination that she did not file any complaint in the Court or Police Station against her husband or in laws, nor she filed any petition for annulment of her marriage. PW11 Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC further says that it was in the month of January / February, 2012, when accused Salman had informed her that her husband 'S' has performed marriage with someone else. PW11 admits that she did not lodge any complaint against her husband upon coming to know about the alleged second marriage of her husband. She further says that she did not get it verified the factum regarding second marriage of her husband from anyone.
14. Such evidence of prosecutrix clearly shows that when her first marriage subsisting, there could not have been any reason for her to perform second marriage with the accused. This itself indicates that her relations with the accused were consensual and not forcible. There was no deceitful act, committed by the accused. Prosecutrix, being a grown up and mature lady, was expected to be aware that unless her first marriage is dissolved, she could not have performed second marriage. Therefore, the alleged false assurance stated to have been given by the accused, does not appear to be true allegation. Conduct of the prosecutrix as reflected from her evidence Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC rather indicates that whatever physical relations were established between her and the accused, same were very much with her consent. Accused did not act in deceitful manner, rather prosecutrix has left her parental home alongwith her minor son, fully understanding the consequences of her acts. In such circumstance, there does not appear to be any element of deception or misconception to the prosecutrix.
15. Evidence of prosecutrix, as discussed above, to my mind does not inspire confidence to establish any of the offence, for which accused has been charged. In a prosecution for the offence of rape, no doubt, evidence of prosecutrix does not require any corroboration and her evidence is to be appreciated with realistic consideration, but at the same time, there must be evidence of 'sterling' quality to inspire confidence of the Court. It is appropriate to refer here following observations of Hon'able Supreme Court in Sudhansu Sekhar Sahoo v. State of Orissa, (2002) 10 SCC 743:
"9. It is true that the evidence of the prosecutrix in a rape case is to be given due weight. Sexual violence is a Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC dehumanising act and it is an unlawful encroachment into the right to privacy and sanctity of a woman. The Courts also should be strict and vigilant to protect the society from such evils. It is in the interest of the society that serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides. In a criminal case, the Court has to consider the triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public. The purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property."
16. I may notice a judgment of Hon'able High Court, in State v. Wasim & Anr., 2017 SCC OnLine Del. 8502 wherein while Hon'able court found the testimony of the prosecutrix therein could not be relied upon, observed as under:
"19. ...Even though there is no quarrel with the proposition that conviction can be based on the sole testimony of the prosecutrix but at the same time, it must be unimpeachable and beyond reproach precluding any shadow of doubt over her veracity. We may only refer to few pronouncements of the Apex Court in this regard. In Ramdas v. State of Maharashtra, (2007) 2 SCC 170, it was held as under:
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her Page 19 of 19 (Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality....
............. 25. In the instant case there are two eyewitnesses who have been examined to prove the case of the prosecution. We have rejected outright the evidence of PW
5. We have also critically scrutinised the evidence of the prosecutrix, PW 2. She does not appear to us to be a witness of sterling quality on whose sole testimony a conviction can be sustained. She has tried to conceal facts from the Court which were relevant by not deposing about the earlier first information report lodged by her, which is proved to have been recorded at the police station. She has deviated from the case narrated in the first information report solely with a view to avoid the burden of explaining for the earlier report made by her relating to a non cognizable offence. Her evidence on the question of delay in lodging the report is unsatisfactory and if her deposition is taken as it is, the inordinate delay in lodging the report remains unexplained. Considered in the light of an earlier report made by her in relation to a noncognizable offence, the second report lodged by her after a few days raises suspicion as to its truthfulness."
17. Reference can also be given of judgment of Apex Court in Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 (paragraphs 24 and 31)].
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(Judgment) State Vs. Salman SC No.167/15 FIR No.189/12 PS : Aman Vihar U/s.376/366/506 IPC
18. For the above discussed reasons, I find that evidence of prosecutrix in this case is not worthy of any credence and prosecutrix being already married, having subsisting marriage, could not be expected to have been deceived by the accused on false assurance of marriage. Therefore, I find that prosecution has failed to bring the charge against the accused beyond reasonable doubts and therefore acquitted. Accused is directed to furnish bail bond and surety bond in sum of Rs.10,000/ in compliance to Section 437A Cr.P.C.
19. File be consigned to Record Room on compliance to section 437A Cr.P.C.
Announced in open Court on 12th day of January, 2018 (SHAILENDER MALIK) ASJSpecial Fast Track Court NorthWest, Rohini Courts, Delhi Page 19 of 19