Delhi District Court
State vs . Parveen Dogra on 7 December, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACT COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.37/15
FIR No.307/12
PS Sagarpur
U/s 376/342 of IPC
State Vs. Parveen Dogra
S/o Parkash Chand
r/o Flat No.236, Pocket-6
Sunrise Apartment, Nasirpur, New Delhi
Unique ID No.02403R0027172013
Date of Institution 18.03.2013
Argument heard/order reserved 04.12.2015
Date of judgment 07.12.2015
Final Order Acquitted
JUDGMENT
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Cr.P.C. are that somewhere in the month September, 2012, the prosecutrix/complainant joined a job as sales woman in Uphar Super Market, Kota Rajasthan, through accused. After rendering 3-4 months, she left the said job due to dispute qua the payment of salary and again contacted accused on his mobile for securing another job. On assurance of accused for securing a job for prosecutrix in Delhi, prosecutrix along with her husband came to Delhi and stayed in a hotel at Paharganj, New Delhi. On 29.11.2012, at about 12.00 noon, prosecutrix alone went to meet accused at New Delhi Railway Station from where accused took prosecutrix to his office at Karkardooma. At that time, accused was stated to be under influence of liquor. After attending a meeting in his office at Karkardooma, he took the prosecutrix at Flat No.305, First Floor, DDA Flats, Sunrise Apartment, Pocket-6, Nasirpur, Dwarka, New Delhi where one friend of accused was already there. Accused sent his friend to bring State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 1 of 11 something from market and thereafter, accused made physical relationship with prosecutrix forcibly. Somehow, she managed to flee from the clutches of accused and called her husband who reached at the spot and took prosecutrix to PS where complainant/prosecutrix lodged a complaint. On her complaint, present FIR was registered against the accused.
2. After completion of investigation, the challan was filed before the learned M.M on 18.03.2013. Thereafter, the case was committed to the court of learned District & Sessions Judge, Patiala House Court, New Delhi from where the case was assigned to this court vide order dated 17.08.2015.
3. On 26.03.2013, charge was framed against the accused by Learned Predecessor Court for the offence punishable u/s 342 and 376 of IPC to which accused pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, the prosecution examined HC Keshari Singh the DO as PW1, prosecutrix/complainant as PW2, Mr. Lokesh Jatav husband of prosecutrix as PW3, Ct. Suresh Chand as PW4, SI Vijay Pal as PW5, Mr. Shishir Malhotra, Nodal Officer from Aircel Limited as PW6, Ct. Ashok Kumar as PW7, W/Ct. Radha as PW8, Shahjahan Ali, Hotel Manager of Hotel Moon Palace, Delhi where prosecutrix stayed as PW9, Ct. Ram Singh as PW10, Dr. Shashi Lata Kabra as PW11, Sh. Govind Rawat as PW12, Dr. Kamal Kant Jain as PW13, W/SI Kusum Lata as PW14, W/SI Ramwati as PW15, Dr. D.S. Paliwal as PW16 and Sh. Desh Raj as PW17. After completion of prosecution evidence, matter was posted for statement of accused.
5. Statement of accused was recorded u/s 313 Cr.P.C separately in which accused denied all the material allegations levelled against him. and stated that he is innocent. Accused further stated that he took the prosecutrix to his office at State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 2 of 11 Karkardooma to secure a job for her. Thereafter, he asked the prosecutrix to request North Head Officer of the company Zodhita Health Care Solution Pvt. Ltd for a job and after some time, he left the office for some official work leaving prosecutrix in the said office. Thereafter, prosecutrix called him for help or give her some money and threatened him if her demand is not fulfilled, she will implicate her in a false case. In the midnight, he came to know about the present case when police came to his flat. Prosecutrix and her husband also demanded Rs.3 lacs to settle the matter which was denied by him. Then they demanded Rs.1 lac which was again denied by him. Accused opted not to lead any defence evidence.
6. Final arguments heard on behalf of both the parties. I have also gone through the records and following case laws filed on behalf of the accused.
(a) 2012 [2] JCC 1039 Devu Samal vs the State (Delhi)
(b) AIR 2012 SC 2281 Narender Kr. Vs State (NCT of Delhi)
(c) 2011 [2] JCC 1249 Daya Shankar vs State of Delhi
(d) 2011 II AD (Delhi) 481 Ashok Narang vs State
7. It is argued on behalf of the State that the prosecutrix in her ocular testimony has corroborated the case of the prosecution and her testimony has been consistent supporting the case of the prosecution that the prosecutrix came to Delhi on assurance of accused of securing a job for her. When the prosecutrix came to Delhi, accused took her to a flat at Nasirpur, Dwarka and made physical relationship with her forcibly. Therefore, accused may be convicted for the alleged offence.
8. On the other hand, learned defence counsel argued that accused is innocent and has been falsely implicated in the present case. The Forensic evidence/medical evidence does not support the case of the prosecution. Even, in her oral testimony, the prosecutrix has made contradictory statement State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 3 of 11 regarding the time of incident as well as place of incident. It was further submitted that the accused was not accompanying the prosecutrix at the alleged time of incident which is clear from the Call Details of the mobile phone used by the prosecutrix as well as by the accused. It is further submitted that accused has left the company of the prosecutrix when she was left in the office of the accused at Karkardooma. It was further submitted that the accused has been falsely implicated with a view to extract the money from the accused. At different times, the prosecutrix and her husband have demanded the money for settlement of the case. It has been further submitted that even the prosecutrix had concealed her real time of arrival at Delhi ie 28.11.2012 in her examination in chief and even during the cross examination upon the specific query put to her. It has been further submitted that even the prosecutrix did not disclose the correct factum of her stay in the hotel along with her husband and one another person namely Ajay. Thus, it has been prayed that accused may kindly be acquitted as the sole testimony of prosecutrix can not be relied upon.
9. In rebuttal submission, it has been argued on behalf of the State that there may be confusion of the date of arrival but in no way, it has any bearing upon the merits of the case. There is no cross examination either of the prosecutrix, or her husband or from other witnesses appearing from the concerned service provider of the mobile services of the prosecutrix, her husband and of the accused about the call details. It has been further submitted that the ocular testimony of the prosecutrix should be given credence over the medical evidence. So far as, stay of the other person with prosecutrix and her husband, it was argued that there was no need to disclose the said facts as it has no relation with the commission of the offence alleged in the present case. Further in cross examination of prosecutrix and her husband different amount are suggested to have been demanded while in his statement u/s 313 Cr.P.C different amount is quoted, thus, it was argued that even the defence of the State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 4 of 11 accused is not consistent. Thus, it has been again prayed that accused may kindly be convicted for the alleged ofence.
10. In the present case, the charge has been framed against the accused on the allegation of commission of rape by the accused by confining her in the flat no.305, 1st floor, Sunrise Aprment, Pocket 6 Nasirpur, Dwarka.
11. While dealing with the credence given to the testimony of the prosecutrix, the Hon'ble Supreme Court in case of Pradeep @ Sonu1 held as under:
"28. This is no more res integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab vs Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550.
However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused. In the State of Himachal Pradesh Vs. Gian Chand 2001 IV AD (S.C.) 253 = (2001) 6 SCC 71, it was held that if the Court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could have been examined but were not examined."
12. Further, in the case of Tameezuddin @ Tammu2, it was held by the Hon'ble Supreme Court as under:-
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
(1) Pradeep @ Sonu vs State (Govt. of NCT of Delhi) 2011 (2) State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 5 of 11 JCC 1031 (2) Tameezuddin @ Tammu vs State (NCT of Delhi), (2009) 15 SCC 566
13. In the present case, it is the admitted fact that in Forensic examination of the clothes of the victim as well as bed sheet seized which was alleged to have been worn/used at the time of commission of offence and blood samples and vaginal swab of victim were subjected to DNA explanation and after laboratory test, it was concluded that DNA profile generated from the source of Exhibits taken from the prosecutrix is not similar to DNA profile from the source of Exhibits taken from the accused or that from seized case property i.e clothes and bed sheet vide Ex.PW14/A. Thus, it is clear that the prosecution has failed to connect the commission of offence by proving the medical/forensic evidence.
14. Coming to the ocular testimony of prosecutrix, now it is to be seen as to whether the sole testimony of the prosecutrix can be relied for the purposes of conviction.
TIME OF INCIDENT
15. As per MLC record of the prosecutrix Ex.PW1/A, the prosecutrix, in her statement to the doctor while giving the alleged history of sexual assault, has stated that the accused has committed rape upon her at about 6.00 pm on the date of incident. However, she was silent about the time of commission of offence in her examination in chief. In her cross examination, she has stated that the incident of rape had occurred at about 8.30 pm in the evening. Thus, from the evidence available, the time of incident can be said to be between 6.00 pm to 8.30 pm on 29.11.2012. However, in his testimony, the husband of prosecutrix PW3 has stated that he has received the information from the proscutrix of the commission of the rape at about 8.00 pm. The accused defence is that he has not been with prosecutrix during relevant period and he has stated that he took the prosecutrix to his office at Karkardooma and asked her to request North State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 6 of 11 Head Officer of the company for job and he left her in the said office and proceeded to some official work from the said office. As per call details of the mobile number 8010883180 ie the mobile number being used by the accused as per prosecution case already placed on record along with charge sheet, the accused's location has been shown at about Gurdwara Road Naiwala, Karol Bagh, New Delhi at 6.02.54 pm and further the call details shows that a call was received by the accused from the mobile number being used by the prosecutrix as per prosecution case ie 08560007089 and thus a question arises when it is the time of alleged incident of commission of rape as per MLC of prosecutrix Ex.PW11/A where was the question of making call by the prosecutrix to the accused.
16. The story does not come to an end here. The call details of accused further suggests that accused was near the Nasirpur only at about 7.00 pm. Thus, even at this stage, it cannot be said that the offence was not committed by the accused if the testimony of the prosecutrix in her cross examination is believed to be correct. However, at the same time, if the call details of the prosecutrix Ex.PW6/A and Ex.PW6/E are taken into consideration, it makes the case clear. As per said call details, the prosecutrix was within the area of Delhi at about 4.35 pm when she was reported to be at Dwarka Sector 9 as per Ex.PW6/E. But she entered into the area circle of Rajasthan at about 5.41 pm and thereafter she remained in the said locality as per call details till at about 8.06 pm. Thus, the call details record of the prosecutrix itself belies her stand that she was being accompanied by the accused and the offence of the rape was committed upon her either at 6.00 pm or in between 6.00 pm to 8.30 pm at Nasirpur, Delhi. Further, the call details record of the prosecutrix suggests that she was in constant touch of her husband upon mobile number 09571581498 which was being used by her husband as per prosecution case. The call details Ex.PW6/A and Ex.PW6/E clearly suggest that the prosecutrix was in continuous touch with State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 7 of 11 her husband through mobile phone during the relevant period from 6.00 pm to 8.00 pm on 29.11.2012. This record shows that even the husband of the prosecutrix can not be believed, who has stated in his testimony that prosecutrix made only one call to him after lunch at about 2.00 pm and thereafter she informed him about the incident. The call details further corroborate the defence of the accused that he has left the company of the prosecutrix much before the alleged time of incident.
17. In this case, except occular testimony, there is nothing on record to support the allegations of the complainant. The DNA profile taken from the prosecutrix does not match with the DNA profile of accused. In such circumstance, the CDR of mobile numbers used by prosecutrix, her husband and accused became pivotal to the prosecution case. Today's era is the era of sophisticated science and technology and evidence based on scientific technology like CDR is one of the very important piece of evidence and its significant value cannot be discarded outrightly merely on the allegation of prosecustrix. In the case of Prashant Bharti3, the Hon'ble Supreme Court has held as under:-
Para 19 "...The aforesaid factual conclusion that the two concerned parties were not present at Lodhi Colony, New Delhi after 8.45 pm on 15.02.2007, as has been established on the basis of the investigation carried out by the police, cannot be altered at the culmination of the trial, since the basis of the aforesaid determination is scientific evidence. Neither has the said material been contested by the complainant/prosecutrix.
Once it is concluded, that the complainant/prosecutrix and the Appellant-accused were at different places, far away from one another, and certainly not in Lodhi Colony, New Delhi on the night of 15.02.2007, it is obvious that the allegation made State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 8 of 11 by Priya, the complainant/prosecutrix against Prashant Bharti, the Appellant-accused of having outraged her modesty, was false. What stands established now, as has been discussed above, will have to be reaffirmed on the basis of the same evidence at the culmination of the trial. Such being the fact and situation, we have no other alternative but to conclude, that the allegations levelled by the complainant/prosecutrix, which culminated in the registration of a first information report at Police Station Lodhi Colony, New Delhi on 16.02.2007, as well as her supplementary statement, would never lead to his conviction".
18. Further, in the case of Ramesh Thakur4, the Hon'ble Supreme Court held as under:-
"In view of the above position, during the course of arguments, the learned counsel relied upon the judgment delivered by the Division Bench of this Court in case titled "Virender Singh Vs State 2010 (2) JCC 1350", wherein this Court considered and dealt with the mobile phone call details between the appellant and the complainant to find out about the trustworthiness of the allegations made by the prosecutrix. On the basis of the mobile phone records location was considered and it was found that the appellant was not with the complainant at the time of occurrence of the offence of rape".
(3)Prashant Bharti" vs State of NCT of Delhi AIR 2013 SC 2753 (4)Ramesh Thakur vs. State (NCT of Delhi & Ors) 200 (2013) DLT 676 State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 9 of 11
19. In the present case, except statement of prosecutrix, no substantial evidence has come on record against the accused and considering the CDR of accused, husband of prosecutrix and of prosecutrix, it indicates that prosecutrix was not with accused at relevant time of commission of offence. Except statement of prosecutrix, no conclusive evidence has come on record which could connect the accused with the alleged commission of rape.
20. Further, prosecutrix in her cross examination has admitted that there was some salary dispute and her salary was due which was not paid by the accused. The accused had taken the defence that he was not responsible for payment of the said dues but with a view to extract money, he has been falsely implicated by the prosecutrix. From the above discussions, the probability of false implication of the accused 2 by the prosecutrix for recovery of her dues cannot be ruled out and it appears to be a probable defence of the accused that the prosecutrix has implicated him falsely to recover the money from him.
21. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in the case of Rang Bahadur Singh5 as under:-
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.
(5) Rang Bahadur Singh" Vs. State of U.P. 2000 II AD(S.C.) 103 State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 10 of 11
22. In view of the aforesaid discussions and peculiar facts and circumstances of the present case and aforesaid case laws, it is held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused is acquitted of charges leveled against him. Accused is directed to furnish fresh bail bond in the sum of Rs.20,000/- in terms of section 437A Cr.P.C. At this stage, fresh bail bonds furnished u/s 437A Cr.P.C and accepted for a period of six months. His earlier bail bond stands cancelled. Surety stands discharged. Original documents, if any, be returned back to the rightful claimant after endorsement cancelled thereupon.
File be consigned to the Record Room after due completion.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/07.12.15 Announced in open court on 07.12.2015 (Total number of page 11) (One spare copy attached) State vs Parveen Dogra u/s 376/342 of IPC PS Sagarpur 11 of 11