Delhi District Court
State vs . Rohit @ Rameshwar, on 18 November, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 190/13.
Unique Case ID No. 02405R0318622013.
State Vs. Rohit @ Rameshwar,
S/o Parveen Kumar,
R/o 2/7, Type-4, PNT Colony,
Karol Bagh,
New Delhi.
Permanent Address :
T-127, Vishwas Park,
Uttam Nagar,
New Delhi.
Date of Institution : 30.10.2013.
FIR No.370 dated 12.8.2013.
U/s. 376/342/506 IPC.
P.S. Bindapur.
Date of reserving judgment/Order : 13.11.2014.
Date of pronouncement : 18.11.2014.
JUDGMENT
1. The prosecution had chargesheeted accused Rohit @ Rameshwar for the offences u/s.376/342/506/323 IPC and u/s. 66(E) of the Information Technology Act.
2. The police machinery in this case was set into motion on receipt of a call in Police Control Room on 12.8.2013 at 3 p.m. from a lady caller to the effect that her friend has prepared her obscene film and has locked her in the room in house no.15F, near Akash Model School. The information was transmitted to P.S. SC No.190/13. Page 1 of 27 Bindapur where it was recorded as DD No.74B and was entrusted to ASI Kuldeep for suitable action. ASI Kuldeep alongwith Const. Subhash reached the spot where they met the prosecutrix 'P' (real name withheld in order to conceal her identity) and a boy i.e. accused Rameshwar @ Rohit. Prosecutrix told them that accused has raped her and prepared her MMS. ASI Kuldeep brought both of them to the police station. He handed over the prosecutrix to SI Nirmal Sharma. She sent the prosecutrix alongwith Lady Const. Indu to DDU Hospital for medical examination. Thereafter she recorded the statement of the prosecutrix which is reproduced hereunder:
".......................... I am employed as a Sales Girl in Metro Walk, Rithala. I have friendship with Rohit, who resides in government accommodation at Rajendra Place. He had taken my mobile number from my friend and had been talking to me from his mobile no. 9212141792 upon my mobile no.9911034052. Rohit's mother had organized a pooja (worship) at another house bearing no.T-607, Vishwas Park, on 01.8.2013 and Rohit had invited me also. I participated in the pooja, took meals at 3.30 p.m. and then left for home. On 12.8.2013, Rohit made a call to me in the morning at 6 a.m. asking me to meet him. I reached his house T-607, Vishwas Park, Uttam Nagar, Delhi, at 12.30 p.m. where he met me. He took me inside the room and closed the door of the room. He slapped me and asked me to take off my clothes. I took off my clothes and he committed rape upon me. He also prepared my SC No.190/13. Page 2 of 27 MMS clandestinely from his mobile phone. When I objected, he threatened to kill me. He also threatened me to kill me. I have made a call at telephone no.100 for the reason that he may misuse the MMS ............."
3. SI Nirmal Sharma prepared rukka on the basis of aforesaid statement of the prosecutrix and got the FIR registered. Since the FIR disclosed the commission of offence u/s.66(E) of Information Technology Act also, further investigation was entrusted to Inspector Subhash. Inspector Subhash Chand and Const. Lokender took the accused to the crime spot i.e. T-127, Vishwas Park, Uttam Nagar, Delhi, and recovered a black colour Nokia mobile phone from there, sealed it in a cloth pullinda and seized it. He also prepared the site plan of the spot at the instance of the prosecutrix. Accused came to be arrested. He made a disclosure statement admitting his guilt. He was got medically examined in DDU Hospital. Statement of prosecutrix u/s.164 Cr.PC was got recorded on 13.8.2013. After taking the accused on one day's police custody, a bedsheet spread on a mattress in flat no.T-127, Vishwas Park, was seized at his instance. A cardboard box of a LCD TV was also seized from the spot, which was having a hole into which the mobile phone had been fitted, with which MMS was prepared. The cardboard box was also seized. Statement of witnesses u/s.161 Cr.PC was recorded. All the exhibits of the case including the mobile phone were sent to FSL for forensic examination.
4. After completion of the investigation, Charge Sheet was prepared by the IO and laid before the Ilaqa Magistrate.
SC No.190/13. Page 3 of 275. Upon committal of the case to the court of Sessions, Charge u/s.323 IPC, u/s.342 IPC, u/s.376 IPC, u/s.506 IPC and u/s. 66E of Information Technology Act, 2000 were framed against accused on 31.1.2014. The accused denied the charges and accordingly trial was held.
6. At trial, the prosecution examined 16 witnesses to prove the charges against the accused. Ld. APP also tendered in evidence the FSL result dated 01.11.2013 and 12.5.2014 which are Ex.PA and Ex.PB respectively.
7. The statement of accused u/s.313 Cr.PC was recorded on 24.9.2014 wherein he denied the prosecution case and claimed false implication. However, he admitted that he had taken the mobile number of the prosecutrix from his friend Raju and then started calling her in the month of May or June, 2013. He also admitted that the prosecutrix had come to his Vishwas Park flat on 01.8.2013 on the occasion of 'Muharat' of that flat. He also admitted that the prosecutrix had come to his aforesaid flat on 12.8.2013 at about 12 noon when he was present alone there. He however added that she had come alongwith Daksh. He admitted that on that day, he had taken out a box from the room and told the prosecutrix that there were ants in the box. He admitted that when he had gone out to fetch something to eat, prosecutrix had bolted the door from inside and did not open the door when he returned and on account of repeated knocking at the door, the bolt on lower portion of the door got broken and thereafter the prosecutrix opened the door. He also admitted that ASI Kuldeep SC No.190/13. Page 4 of 27 (PW16) had locked his flat and took him as well as the prosecutrix to the police station where they were handed over to SI Nirmal Sharma. He further stated that he has been falsely implicated in this case by the prosecutrix in collusion with Daksh who was having a grudge with them as his mother had not paid any commission to him regarding purchase of a new flat through him.
8. The accused examined the Nodal Officer of M/s. Tata Tele Services Limited as DW1 in his defence to prove the customer details and call detail records of mobile no.9212141794 w.e.f. 18.9.2013 to 01.5.2014 as Ex.DW1/A & Ex.DW1/C respectively. Accused also entered the witness box himself as DW2. It may be noted here that the accused, in his testimony, stated that he got acquainted with the prosecutrix through his friend Raju and they used to talk to each other on phone. She requested him to get her a suitable job and he made her to talk to his friend Arjun in this regard. Prosecutrix had taken a loan of Rs.2,000/- from Arjun. She demanded some money from him also but he refused to give her any money. He further deposed that he had consensual physical relations with the prosecutrix for the first time on 26.7.2013 and thereafter she started sending love messages to him. He deposed that on 12.8.2013, prosecutrix had come to his Uttam Nagar flat on her own alongwith Daksh at about 10.45 a.m. She smoked a cigarette given to her by Daksh, who left after about 30 minutes to 45 minutes. Thereafter he had a shower in the bathroom and when he came out, prosecutrix requested him to gift her a mobile phone but he avoided saying that he does not have financial means. He further deposed that the prosecutrix started physical advancements towards him and herself took off his clothes and SC No.190/13. Page 5 of 27 established sexual relations with him despite his resistance. She then told him that she has kept her second mobile phone for charging in the adjacent room and asked her to bring something to eat from outside. When he had gone out, prosecutrix gave him a missed call. When he called back, she told him that he has made obscene film of the sex act. He immediately returned to the flat and knocked at the door but she did not open the door. She went upto the balcony and started creating ruckus. He went downstairs and called his mother apprising her about the incident. Thereafter Daksh reached there. Prosecutrix opened the door for him and he went inside and talked to her. He left the spot and when returned at about 4.30 p.m. alongwith his mother, police had already arrived at the spot and he was arrested. He stated that his mobile phone was with the prosecutrix and it was not recovered from his flat by the police officials.
9. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on recored.
10. Ld. APP argued that the evidence led by the prosecution is credible as well as trustworthy and hence the accused is liable to be convicted for the offences with which he has been chargesheeted.
11. On the other hand, Ld. Counsel for the accused vehemently submitted that the accused has been falsely implicated in this case and tried hard to convince me about accused's innocence. His submissions were two folds. Firstly, that the testimony of the prosecutrix itself shows that the sexual SC No.190/13. Page 6 of 27 relations between her and the accused on 12.8.2014 were with her consent and without any threat or force from the side of the accused. Secondly, the prosecution has failed to prove that the obscene photographs of the prosecutrix annexed with FSL result were taken by the accused from his mobile phone on the date of incident i.e. 12.8.2013. He prayed for acquittal of the accused.
12. The prosecutrix has been examined as PW1. She deposed that the accused had got her mobile number from his friend Raju, who is husband of her friend Mini and started calling her in the month of May or June, 2013. The accused first thought that she is a call girl and when she told him that she is not that type of girl, they became friends. The accused then invited her to the Muharat ceremony of their new house which was scheduled on 03.8.2013. Accused's mother also talked to her and invited her to the Muharat ceremony. She reached accused's flat in Vishwas Park, Uttam Nagar, at about 3 p.m. and left from there at about 8 p.m. after taking meals. Accused made a call to her again on 08.8.2013 requesting her to help him in setting furniture in his new flat but she expressed her inability to help him on that day. The accused as well as his mother called her again on 09.8.2013 and requested her to reach their new flat to help them in setting the furniture and other material there. She reached their flat on that day at about 12 noon but found the accused present alone there. She consumed cold drink 'Fanta' offered to her by the accused. Thereafter accused asked her to take off her clothes but she reused to do so. The accused got annoyed and slapped her and himself took off her clothes. He took off his own clothes as well and committed forcible sexual intercourse with her.
SC No.190/13. Page 7 of 27Thereafter the accused went out of the room with a cardboard box in his hand and returned after about 2 or 3 minutes. She aksed him why had he taken the box out of the room and he told her that there were ants in the box and he had gone to dry it in the sun. When he asked him why did he bring back the box, he told her that there are no ants in the box now. Accused also told her that he had gone to other room to put on his clothes. She told him that when she, being a girl, have put on her clothes in his presence, why did he go to other room for the said purpose but the accused did not say anything.
13. She further deposed that she doubted the intention of the accused and hence asked him to bring something to eat. While going on out of the room, accused locked the door from outside. She checked the cardboard box and found that a mobile phone had been kept there with the help of thermocol and its video option was on. She felt that the accused may have prepared her MMS in nude condition. The accused made a call to her asking her what she would like to eat and she told him that he has prepared her MMS and therefore she would call police at telephone no.100. Accused returned to the room immediately and knocked at the door telling her that he would delete the MMS from the mobile phone. She had bolted the door from inside and did not open the door. On account of repeated knocking the bolt on the lower portion of the door got broken. She feared that another bolt on the upper portion of the door may also get broken and accordingly opened the door. She asked the accused why did he prepare her MMS. Accused asked her to delete the same from the phone but she did not do so. She told him to break the mobile phone.
SC No.190/13. Page 8 of 27Accused got annoyed and started beating her. She went out to the balcony thinking that the people would see her condition and told the accused that if he beats her any more, she would jump from the balcony. The accused continued to use filthy language against her saying that she is a prostitute etc. etc. She has kept accused's mobile phone in her hand. The accused threatened her that if she did not handover the mobile phone to him, she would not go alive from that room. Thereafter the accused left the flat after locking it from outside.
14. She further deposed that she saw a lady in the neighbourhood from a balcony and asked for her help. That lady asked her to make a call at telephone no.100. She made a call to her sister Kavita from her mobile phone and narrated the whole incident to her. Her sister as well as her brother in law Sumit asked her to make call at telephone no.100. Accordingly, she made a call at telephone no.100. Police reached there after about three hours as they had faced difficulty in locking the flat as she was not able to tell them the exact address. Police officials broke down the lock of the flat and took her out. They brought her to P.S. Bindapur where inquiries were made from her. Her statement Ex.PW1/A was recorded in the police station. Meanwhile, her sister and brother- in-law also reached in the police station. From the police station, she was taken to DDU Hospital for medical examination. The clothes which she was wearing were taken by the doctor. She handed over the mobile phone of the accused, which was of black colour and make Nokia, to the police officials and it was seized vide memo Ex.PW1/B. She also took the police officials to the flat of the accused where its site plan Ex.PW1/C was prepared. She SC No.190/13. Page 9 of 27 also proved her statement u/s.164 Cr.PC recorded on 13.8.2013 as Ex.PW1/D. She identified the aforesaid black colour mobile phone Ex.P1 when shown to her in the witness box. Upon having a look on the photographs annexed with FSL result dated 01.11.2013, she deposed that she as well as the accused are seen in those photographs and these appear to have been taken in the flat of the accused on the date when he committed rape upon her. The photographs are Ex.PW1/E (colly). In the cross examination conducted by Ld. APP after declaring her hostile, she admitted that the incident took place on 12.8.2013 and not on 09.8.2013.
15. In the cross examination conducted on behalf of the accused, she was confronted with her statement to the police Ex.PW1/A and statement u/s.164 Cr.PC Ex.PW1/D wherein she had not mentioned major portion of her deposition in the examination in chief in this court. She further deposed that she neither smokes nor consumes alcohol. She had gone to Uttam Nagar flat of the accused only once before the date of incident i.e. on the occasion of Muharat ceremony on 01.8.2013. She denied that she had demanded Rs.2.5 Lakhs from the accused through one Ashok to settle the matter. She stated that she does not know any person by name Ashok or Arjun or Daksh. She further deposed that on the date of incident, she had reached the flat of the accused in an auto rickshaw. She admitted that no third person came to the flat of the accused on the date of incident during the time she was there. She was shown five photographs by the Ld. Counsel for the accused and she stated that she as well as accused are seen in these photographs and these were taken at Rajendra Place house of the accused. The photographs are Ex.PW1/D1 (colly). She SC No.190/13. Page 10 of 27 admitted that in photographs Mark-X1, Mark-X2, Mark-X3, Mark- X4, Mark-X5 and Mark-X6 forming part of Annexure-2 of the FSL result Ex.PA, she as well as the accused are seen cordially talking to each other. She is seen taking off clothes herself and they are seen enjoying sex with each other. She also deposed that a third person is seen in some of the photographs forming part of Annexure-2. She deposed that she was having a Samsung mobile phone with her on the date of incident which was not having any memory card. A suggestion was given to her that she had videographed the sex act between her and the accused from her own mobile phone and then transferred the video to the mobile phone of the accused which she denied. She also denied further suggestions put to her.
16. PW2 HC Ashok Kumar was the Duty Constable in P.S. Bindapur on 12.8.2013, who had registered the FIR on the basis of rukka handed over to him by SI Nirmal Sharma. He proved the FIR as Ex.PW2/A, endorsement on the rukka as Ex.PW2/B and the certificate u/s.65B of the Evidence Act as Ex.PW2/C.
17. PW3 was posted as DD Writer in P.S. Bindapur on 12.8.2013 and had recorded DD No.74B. She proved its copy as Ex.PW3/A.
18. PW4 was posted as a Constable in P.S. Bindapur and had taken the sealed pullindas from the police station to FSL, Rohini, on 27.9.2013 vide RC No.149/21/13.
19. PW5 is the doctor, who had conducted medical SC No.190/13. Page 11 of 27 examination of accused Rohit on 14.8.2013 and proved his MLC as Ex.PW5/A.
20. PW6 is the doctor who also had examined the accused in DDU Hospital on 13.8.2013 and proved his MLC as Ex.PW6/A. He had also obtained the blood sample of the accused and handed over the same in sealed condition to the IO.
21. PW7 is the Nodal Officer of M/s. Idea Cellular Company Limited, who proved the customer details and call detail records of the mobile no.9911034052 as Ex.PW7/A and Ex.PW7/C respectively.
22. PW8 is Lady Constable Indu, who had taken the prosecutrix to DDU Hospital on 12.8.2013 for medical examination.
23. PW9 is Const. Mohit, who was posted as CIPA Operator in P.S. Bindapur on 12.8.2013 and had typed the FIR on the computer.
24. PW10 is Dr. Swati, who had conducted medical examination of the prosecutrix in DDU Hospital.
25. PW11 is Ms. Ruchika Singla, the Ld. M.M., who had recorded statement u/s.164 Cr.PC of the prosecutrix. She has proved her certificate annexed to the statement as Ex.PW11/A.
26. PW12 is Inspector Subhash Chand Sharma, the Investigating Officer of the case, on 12.8.2013. He had arrested SC No.190/13. Page 12 of 27 the accused in the police station on that day vide memo Ex.PW12/A and got him medically examined in DDU Hospital. He also recorded his disclosure statement Ex.PW12/D. He seized an empty cardboard box of a TV set from the flat of the accused at his instance vide seizure memo Ex.PW12/F. He also seized the bedsheet spread on the bed in the room vide memo Ex.PW12/G and the mobile phone of the accused vide memo Ex.PW1/B. He had sent all the exhibits except the mobile phone to FSL on 23.8.2013.
27. PW13 is Const. Lokender, who was associated in the investigation of this case alongwith PW12 on 13.8.2013.
28. PW14 is IO SI Nirmal Sharma. She was present in the police station on 12.8.2013 at about 4.30 p.m. when the prosecutrix was brought there by ASI Kuldeep. She made inquiries from the prosecutrix and sent her alongwith Lady Const. Indu for medical examination to DDU Hospital. On return from the hospital, she recorded the statement of the prosecutrix Ex.PW1/A, prepared rukka and got the FIR registered. She seized the exhibits of the prosecutrix and deposited those in the Malkhana. On the same night intervening between 12.8.2013 and 13.8.2013, she alongwith Inspector Subhash (PW12) and the prosecutrix reached the spot of the incident i.e. T-127, Vishwas Park, Uttam Nagar, New Delhi, where PW12 recovered a mobile phone from beneath a mattress lying on the floor of the room and seized vide memo Ex.PW1/B. She further deposed that Inspector Subhash arrested the accused in her presence in the police station vide arrest memo Ex.PW12/A. She produced the prosecutrix before the concerned SC No.190/13. Page 13 of 27 Ld. M.M. in Dwarka Court on 13.8.2013, who recorded her statement u/s.164 Cr.PC. She also deposed that on 15.8.2013, upon obtaining the permission of Ld. Magistrate to take a photograph of the accused, she got the photograph of the accused clicked by a photographer in the court premises. The husband of the prosecutrix also handed over the photographs of the prosecutrix to her on the same day. She seized those vide memo Ex.PW14/B and Ex.PW14/C. She then sent the mobile phone of the accused to FSL through Const. Raghunath. In the cross examination, she deposed that the mobile phone was seized by Inspector Subhash and the seal after use was given to her at the spot in presence of the prosecutrix. She returned the seal back to Inspector Subhash in the police station later on. She also deposed that when she alongwith PW12 Inspector Subhash had reached the accused's flat, the flat was locked at that time and Inspector Subhash was having the keys of the lock. She could not tell the exact location of the mobile phone beneath the mattress.
29. PW15 is HC Gopal Krishan, who had taken 17 sealed pullindas and 2 sample seals from the police station to FSL on 23.7.2013 vide RC No.139/21/13.
30. PW16 is ASI Kuldeep Singh, who had reached the spot of incident first of all on receipt of DD No.74B. He had brought both the prosecutrix as well as accused Rohit of the police station and handed over them over to SI Nirmal. He deposed that he had locked the aforesaid flat no.T-127 and handed over its keys to Inspector Subhash Chand in the police station.
SC No.190/13. Page 14 of 2731. PW16 (it should have been given Srl. No.17) is Inspector R.K. Meena, who had prepared Charge Sheet and submitted the same to the concerned court.
32. Ex.PA and Ex.PB are the FSL results. Ex.PA is very material as it refers to the data which was retrieved from the mobile phone sent to the FSL for forensic examination. The photographs retrieved from the memory card of the said mobile phone have been annexed alongwith the report as Annexure-1, Annexure-2 and Annexure-3. It may be noted here that in the photographs forming Annexure-1, prosecutrix and the accused are seen talking to each other in the bed. In two photographs, prosecutrix is seen partially nude i.e. she is not wearing any lower garment. In the first few photographs forming Annexure-2, one more person is seen alongwith prosecutrix and the accused and all appear to be sitting on a bed. In one photograph, the third person is seen smoking and in the immediately next photograph, the prosecutrix is seen smoking a cigarette. In next few photographs, prosecutrix and the accused are seen undressing themselves and in the last four photographs, they are seen having sex with each other. In the photographs forming Annexure-3 the accused is seen having sex with some other girl, who does not appear to be the prosecutrix. It is also evident from the FSL result that the photographs forming Annexure-3 have been taken on 11.8.2013 whereas photographs forming Annexure-1 and Annexure-2 have been taken on 12.8.2013.
33. As already noted in paragraph no.8 herein-above, that the accused in his testimony as DW2 has admitted that the SC No.190/13. Page 15 of 27 prosecutrix had come to his Uttam Nagar flat on 12.8.2013 and they had engaged in sexual intercourse with each other. He has, however, deposed that the prosecutrix was brought to his flat by his friend Daksh and it is the prosecutrix, who took lead in having sexual intercourse with him on that day despite his resistance.
34. Thus it is not in dispute that the prosecutrix was with the accused in his Uttam Nagar flat on 12.8.2013 and both had engaged in sexual intercourse with each other. It is the case of the prosecution that the accused had committed forcible sexual intercourse with the prosecutrix on that day and hence is guilty of rape whereas defence put forward by the accused is that the prosecutrix herself had made sexual advancements towards him and engaged in sexual relations with him despite his resistance.
35. Though the prosecutrix claims to have been raped by the accused in his flat on the aforesaid date i.e. 12.8.2013 yet upon overall assessment of the evidence on record it does not appear to be so. In her call at telephone no.100, which has been recorded as DD No.74B in the police station, the prosecutrix has stated that her friend has made her obscene film and has confined her in the room. This was the first information of incident given by the prosecutrix to the Police Control Room. She does not say in this call that she has also been raped by her friend i.e. accused. There is no explanation from the side of prosecutrix as to why there is no mention of rape in the said call. Even otherwise also from the tone and tenor of the statement Ex.PW1/A of the prosecutrix recorded in the police station, which is the basis of FIR, it is manifest that she was annoyed and enraged upon finding that SC No.190/13. Page 16 of 27 the accused has prepared her MMS clandestinely by a mobile phone and it is for this reason only that she made a call at telephone no.100.
36. From the conduct of the prosecutrix also, which is apparent from her testimony before this court, it is not indicated that she had been raped by the accused on that day. In this regard, I would like to reproduce the following portion of her examination in chief, which is most material :
"That day, I reached their flat at about 12 noon. The accused was present alone in his flat. The accused offered me a 'Fanta' cold drink which I consumed. Thereafter the accused asked me to take off my clothes but I refused to do so. However, the accused got annoyed, slapped me and himself took off my clothes. He took off his own clothes also and committed forcible sexual intercourse with me. Thereafter, he went out of the room with a cardbox in his hand and returned after about 2 or 3 minutes. When I asked him why had he taken the box out of the room, he told me that there were ants in the box and he had gone to dry it in the sun. I asked him why did he bring back the box and he told me that there are no ants in the box now. He also told me that he had gone to the other room to put on his clothes. I told him that when I, being a girl, have put on my clothes in his presence, why did he go to other room for the said purpose. He did not say anything. I doubted the SC No.190/13. Page 17 of 27 intention of the accused. Hence I told him to bring something for me to eat. While going out of the room, he locked the door from outside. After he went out of the room, I checked that cardbard box and found that a mobile phone had been kept there with the help of thermocol. The video option of the mobile phone was on. I felt that the accused may have prepared an MMS in my nude condition. Thereafter accused made a call to me asking me what I would like to eat. I told him that he has prepared my MMS and therefore, I would call police at telephone no.100."
37. The prosecutrix has deposed that the accused slapped her, took off her clothes, took off his own clothes and committed forcible sexual intercourse with her but it appears from her conduct that she was O.K. with the said act. She did not react to the said act as a rape victim would have. She appears to have been calm and at ease even after the sex act. She did not raise any alarm. She did not try to run away even when the accused had gone to another room alongwith cardboard box in his hand. She continued to talk to him in a friendly manner and asked him why had he taken the cardboard box to another room. It is when she did not get any satisfactory explanation from the accused regarding taking cardboard box to another room that she suspected some foul play. She then asked the accused to go out and bring something to eat. After the accused went out, she checked the cardboard box and found the mobile phone concealed therein with its video option on.
SC No.190/13. Page 18 of 2738. I may also note that the aforesaid portion of the deposition of the prosecutrix is an improvement upon her previous statements recorded during the course of investigation and contrary to what she has mentioned in this regard in her statement u/s.164 Cr.PC Ex.PW1/D. In that statement, she has deposed that when she reached the flat of the accused on 12.8.2013 at about 12 noon, accused forced himself upon her and had sex with her. She wept bitterly and asked him why he has done like this and he replied that he would marry her. She told him that she does not want to marry him. Thereafter, she told him that she is feeling hungry, upon which accused went out to fetch something to eat. After some time, she found that a TV box was kept in the front which had a hole and the box was covered by a cloth. She took off the cloth and found a mobile phone. She realized that the accused has made a recording of the act.
39. The prosecutrix has stated about marriage promise of the accused only in her aforesaid statement u/s.164 Cr.PC Ex.PW1/D. She has not stated about the same either in the FIR or in her testimony before this court.
40. As per the case of the prosecution itself, the photographs Mark-X1 to Mark-X6 have been retrieved from the mobile phone of the accused and the same were taken during the sex act between the prosecutrix and the accused on 12.8.2013. A bare look on these photographs reveals that the prosecutrix was a consenting party to the sexual relations with the accused on the said date.
SC No.190/13. Page 19 of 2741. Hence the evidence on record clearly demonstrates that the sexual intercourse between the prosecutrix and the accused on 12.8.2013 was consensual. Therefore the Charge u/s. 376 IPC framed against the accused fails.
42. Now coming to the Charge u/s.66E of the Information Technology Act, 2000 framed against the accused. It is the case of the prosecution that the accused had clandestinely filmed the prosecutrix and captured her obscene photographs during the act of sexual intercourse between her and the accused on 12.8.2013 at his Uttam Nagar flat.
43. With regard to the same, the material portion of the testimony of the prosecutrix is reproduced here under :
"That day, I reached their flat at about 12 noon. The accused was present alone in his flat. The accused offered me a 'Fanta' cold drink which I consumed. Thereafter the accused asked me to take off my clothes but I refused to do so. However, the accused got annoyed, slapped me and himself took off my clothes. He took off his own clothes also and committed forcible sexual intercourse with me. Thereafter, he went out of the room with a cardbox in his hand and returned after about 2 or 3 minutes. When I asked him why had he taken the box out of the room, he told me that there were ants in the box and he had gone to dry it in the sun. I asked him why did he bring back the box and he told me that there are no SC No.190/13. Page 20 of 27 ants in the box now. He also told me that he had gone to the other room to put on his clothes. I told him that when I, being a girl, have put on my clothes in his presence, why did he go to other room for the said purpose. He did not say anything. I doubted the intention of the accused. Hence I told him to bring something for me to eat. While going out of the room, he locked the door from outside. After he went out of the room, I checked that cardbard box and found that a mobile phone had been kept there with the help of thermocol. The video option of the mobile phone was on. I felt that the accused may have prepared an MMS in my nude condition. Thereafter accused made a call to me asking me what I would like to eat. I told him that he has prepared my MMS and therefore, I would call police at telephone no.100. He returned to the room immediately and knocked on the door telling me that he would delete the MMS from the mobile phone. I had bolted the door from inside and did not open the door. On account of his repeated knocking, the bolt on the lower portion of the door got broken. I feared that the another bolt on the upper portion of the door may also get broken and accordingly I opened the door. I asked accused why had he prepared my MMS. He asked me to delete the same from the phone but I told him that I would not do so. I told him to break the mobile phone. However, he got annoyed and started beating me."SC No.190/13. Page 21 of 27
44. Ld. Counsel for the accused has argued that the aforesaid portion of the testimony of the prosecutrix cannot be believed as she had not stated so in her previous statement and it is a clear improvement upon her previous statement. I do not agree to the contention of the Ld. Counsel. It is true that the prosecutrix did not mention the aforesaid facts in detail in her statement to the police and to the Ld. M.M. but she has mentioned in the statement to the police Ex.PW1/A that the accused had clandestinely prepared her MMS. She has also mentioned in her statement u/s.164 Cr.PC Ex.PW1/D that when the accused had gone to bring some food, she found a box of T.V. in the room having a hole in the centre and covered by a cloth. When she removed the cloth, she found a phone and realized that the sex act has been recorded. Therefore the prosecutrix has been saying from the very beginning that the accused had filmed her by a hidden mobile phone.
45. It was submitted by Ld. Counsel for the accused that the prosecution has not led any satisfactory evidence to show that the mobile phone Ex.P1 was recovered from the accused and it is the same phone, by which the prosecutrix was filmed clandestinely. He submitted that the prosecutrix has deposed that she handed over the mobile phone of the accused to the police in the police station whereas IO Inspector Subhash Chand (PW12) has deposed that he seized mobile phone of the accused from his flat when he had reached there on 13.8.2013 and in view of these contradictory statements coming forth from the two material witnesses of the prosecution, it becomes doubtful that the mobile phone Ex.P1 belongs to the accused and that the prosecutrix had SC No.190/13. Page 22 of 27 been filmed by the same.
46. From the testimony of the prosecutrix, it is manifest that she had found the mobile phone of the accused in the empty cardboard box placed in the room, in which they had engaged in sexual intercourse and realized that the sex act has been videographed. She was holding the phone in her hand when the accused returned from market where he had gone to fetch some meals. She has deposed that she kept the mobile phone in her hand even as the accused continued to use filthy language against her and gave beatings to her and despite his threat that she would not go alive from the room, if she did not handover the mobile phone to him. She has deposed that when she was brought to the police station from the hospital after her medical examination, she handed over the said mobile phone Ex.P1 to the IO who seized it vide seizure memo Ex.PW1/B. The prosecutrix has not been cross examined on this aspect. There is nothing in her cross examination to suggest that the accused disputes that there was an empty cardboard box having a hole in the middle, in the room, in which he had engaged in sexual intercourse with the prosecutrix and that the prosecutrix had not found any mobile phone in the said cardboard box which she was keeping with her.
47. Though the IO Inspector Subhash Chand (PW12) has deposed that he had recovered the mobile phone from the flat of the accused on 13.8.2013, he appears to have been made this statement in the zeal to show that he has carried out the investigation very smartly. His deposition in this regard appears to be highly unbelievable and improbable. The prosecutrix, in none of SC No.190/13. Page 23 of 27 his statements, has stated that after removing the mobile phone from the cardboard box, she kept it beneath the mattress in the room. It is also apparent from the testimony of PW12 and PW14 SI Nirmal Sharma (who was accompanying PW12 at that time) that prosecutrix was not accompanying them when they visited the flat of the accused. Therefore, I find that there was no occasion for PW12 to recover any mobile phone from there when he was neither accompanied by the prosecutrix nor had the prosecutrix stated to him that she had kept the mobile phone beneath the mattress in the room.
48. I find the version of the prosecutrix in this regard more plausible and reliable. Moreover, it is not the defence of the accused that his mobile phone was not seized by the police. His only defence seems to be that the mobile phone was tampered with in the police station. This is evident from a suggestion given to PW12 in his cross examination that the mobile phone of the accused was tampered with in the police station, which he denied. It has neither been put to prosecutrix nor to PW12 nor to PW14 that the mobile phone of the accused was not seized at all. On the contrary, accused has deposed as DW1 that his mobile phone was with the prosecutrix and it was not recovered by the police officials. Therefore, he admits that prosecutrix was carrying his mobile phone with her, which she later on handed over to the police officials.
49. Hence it cannot be doubted that the mobile phone Ex.P1 belongs to the accused and was seized in this case by the police from the prosecutrix. It is further manifest from the SC No.190/13. Page 24 of 27 evidence on record that it had been sent to FSL for forensic examination where it was examined by PW17. As per report Ex.PA submitted by PW17, the mobile phone Ex.P1 was found to contain a memory card from which various videos and obscene photographs were retrieved. Some of these photographs are attached with the report as Annexure-1, Annexure-2 & Annexure-3. It is not disputed from the side of the accused that the accused as well as the prosecutrix are seen in seven photographs forming Annexure-1 and in 15 photographs forming Annexure-2. As per the FSL report, all these photographs have been taken on 12.8.2013. In the photographs forming Annexure-1, prosecutrix and accused are seen talking to each other in the bed. The prosecutrix is seen partially nude i.e. not wearing any lower garment in two photographs. In the first few photographs forming Annexure-2, one more person is seen alongwith prosecutrix and the accused and all appeared to be sitting on a bed. In one photograph, the third person is seen smoking and in the immediately next photograph, the prosecutrix is seen smoking cigarette. In the next few photographs, prosecutrix and the accused are seen undressing themselves and in last four photographs they are seen having sex with each other. What is seen in these photographs, as stated herein-above, is in conformity with the deposition of accused himself as DW2. He has deposed that the prosecutrix had come to his flat on 12.8.2013 alongwith his friend Daksh and Daksh as well as the prosecutrix smoked the cigarette. He further deposed that thereafter Daksh left and the prosecutrix starting advancements towards him which culminated in sex act between the two. The accused has not deposed that he and the prosecutrix are not seen having sex in SC No.190/13. Page 25 of 27 the aforesaid photographs or that these photographs are either morphed or manipulated. In fact, no such suggestion has been given to any of the prosecution witnesses including PW17. It may also be noted that from the tenor of the cross examination of the prosecutrix conducted on behalf of the accused, it appears that the accused does not dispute that these photographs and the video were not retrieved from his mobile phone. A suggestion has been given to the prosecutrix in her cross examination that she had herself videographed the sex act between herself and the accused from her mobile phone and then transferred the same to the mobile phone of the accused, which she denied. Thus it is the defence of the accused that the prosecutrix had transferred the video of the sex act as well as the obscene photographs to his mobile phone from her mobile phone. However, he has miserably failed to establish his such defence. He does not say a word about the same in his testimony and has not led any evidence to prove the same.
50. Thus the evidence on record clearly demonstrates that the accused had hidden his mobile phone in an empty cardboard box in the room with its video option on and had thus clandestinely filmed the sex act between himself and the prosecutrix. As per section 66E of the Information Technology Act, 2000, capturing knowingly the images of private area of a person without his or her consent under the circumstances violating the privacy of that person is a punishable offence. Therefore, there remains no doubt that the accused has violated the privacy of the prosecutrix by capturing her nude images clandestinely and without her consent and thus has committed offence punishable SC No.190/13. Page 26 of 27 u/s.66E of the Information Technology Act, 2000.
51. With regard to Charge u/s.323 IPC, u/s.342 IPC and u/s. 506 IPC framed against the accused, I feel that the prosecutrix has been successful in proving these also beyond any reasonable doubt. From the testimony of the prosecutrix, as described herein- above, it is evident that when the prosecutrix refused to handover accused's mobile phone to him, he started beating her. The accused threatened her that she would not go alive from the room if she did not handover the mobile phone to him. When the prosecutrix did not yield to the threat of the accused, the accused locked her inside the flat and left. From the testimony of PW16, it is limpid that when he reached the accused's flat, it was locked from outside and the prosecutrix was holed up inside. Soon accused also reached there and he opened the lock of the flat. Thus it is manifest beyond doubt that the accused beat the prosecutrix, confined her in the flat by locking it from outside and had also threatened her that he would not leave her alive from the flat. Hence the accused is liable to be convicted for the offences u/s.323 IPC, u/s.342 IPC and u/s.506 IPC also.
52. Resultantly, the accused is hereby convicted for the offences u/s.66E of the Information Technology Act, 2000, u/s.323 IPC and u/s.342 IPC and u/s.506 IPC. However, he is acquitted of the offence u/s.376 IPC.
Announced in open (VIRENDER BHAT)
Court on 18.11.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.190/13. Page 27 of 27