Delhi District Court
State vs Daljeet Singh on 3 November, 2017
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
SC NO. : 61/16
STATE
versus
Daljeet Singh
son of Sh. Balwinder Singh
r/o WZ37, New Sahib Pura,
Tilak Nagar, N. Delhi110018.
FIR No. : 233/2016
Offence U/S : 376/328 IPC
Police Station :Tilak Nagar
DATE OF RECEIPT OF FILE
AFTER COMMITTAL:09.05.2016
DATE OF JUDGMENT:03.11.2017
JUDGMENT
1.Present FIR has been lodged against Daljeet Singh by the prosecutrix (name of the prosecutrix is withheld to protect the identity of the prosecurtix) with the allegations that six months prior to lodging the present FIR within the jurisdiction of PS Tilak Nagar, accused had forcefully administered some
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intoxicated substances to the prosecutrix with the intention of commission of offence of rape against the prosecutrix and thereby accused has also committed rape upon the prosecutrix. Complaint to this effect was filed by the prosecutrix in PS Tilak Nagar on the intervening night of 18 19.02.2016 at 12.30AM.
2. After the complaint was lodged by the prosecutrix before Police Station Tilak Nagar, the FIR no. 0233/16 was registered and investigation was marked to the IO/WASI Krishna. During the investigation, statement of witnesses and prosecutrix were recorded by the IO. Prosecutrix was medically examined on 19.02.2016 at DDU Hospital and her statement u/s 164 Cr.P.C. was recorded by Ld. Magistrate on 19.02.2016. Thereafter the present charge sheet was filed before the concerned court. After completion of the proceedings u/s 207 Cr.P.C. the case was committed to this court .
3. After considering the prima facie evidence, charge was framed against the accused on 20.05.2016 u/s 328 and u/ 376 IPC but he pleaded not guilty and claim trial.
4. Prosecution has examined four witnesses, PW1 prosecutrix has narrated in detail the incident. PW2 is Wct. Poonam who has taken the prosecutrix for medical examination to DDU Hospital. PW3 is ct. Rakesh who has
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joined the investigation of the present case with IO ASI Krishna and in whose presence accused was arrested. PW4 is IO of the case.
5. Ld. counsel for accused Sh. R K Wadhwa has admitted the statement of Dr. Soma Mitra, DDU Hospital who has prepared MLC no. 45/16, Dr. Vipin Kumar Jha, DDU Hospital who has prepared MLC no. 2901/16, Dr. Ashmita Saha, DDU Hospital who has prepared MLC no. 45/16, Duty officer SI Rambir Singh , MHC(M) PS Tilak Nagar and Ms. Swati Singh, Ld. RMM Tis Hazari Court who had recorded the statement of prosecutrix u/s 164 Cr.P.C. hence, these witnesses are not examined. Thereafter on the oral request of Ld. APP, prosecution evidence was closed.
6. Statement of accused Daljeet Singh u/s 313 Cr.P.C. recorded in which he has denied the allegations levelled against him and has stated that the accused has been falsely implicated in the present case by the prosecutrix.
7. Accused has not lead any defence evidence.
8. Thereafter arguments were heard from Sh. R K Wadhwa, Ld. defence counsel for accused and Sh. Subhsh Chauhan, Ld. APP for the State .
9. I have considered the submissions of Ld. counsels for the parties as well as perused the material
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available on record and the documents relied upon by the parties.
10. In the arguments, Ld. defence counsel for accused had argued that the prosecutrix has not stated the correct facts before the court. There are discrepancies in the complaint filed by the prosecutrix which is Ex. PW1/A and her statement recorded by Ld. MM u/s 164 Cr.P.C. which is Ex. PW1/B. It is also pointed out by Ld. defence counsel that the prosecutrix was already married and her marriage with her earlier husband was still subsisting when she had alleged that accused had promised her to marry with her. It was also pointed out by Ld. defence counsel that in cross examination prosecutrix has admitted that she had consumed liquor with the accused and she had gone to different places with accused where they both had consumed liquor and it is the case of the prosecutrix herself that she had paid money for the rooms in the hotels as well as for the food items and even the liquor which was consumed by the parties. With these submissions, it was submitted by Ld. defence counsel that it cannot be believed that a person who is being raped under the false pretext of marriage will provide money for consumption of liquor or will stay in the hotel with accused although she is allegedly forced to consume liquor. Hence, it was submitted by Ld defence counsel that this is a false
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case filed by the prosecutrix against accused which is clear from the perusal of the evidence of prosecutrix and hence it was prayed that the accused be acquitted for the offences alleged against him.
11. On the other hand, Ld. APP Sh. Subhash Chauhan had submitted that there are specific allegations of commission of rape by the accused upon the prosecutrix on the pretext of marriage whereas the accused is already married and his wife was pregnant at the time when the FIR was lodged by the prosecutrix. It is also prayed by Ld. APP that the accused be convicted for the offences committed by him.
12. In the present case, there are two allegations levelled by the prosecutrix against the accused, one is of administering intoxicated substance to the prosecutrix, which is punishable u/s 328 IPC and the other is that under the influence of such intoxicated substance prosecutrix was raped by the accused several times and hence, the accused has committed offence u/s 376 IPC.
13. In order to prove the offence u/s 328 IPC, it was necessary for the prosecution to prove that some intoxicated substance was administered to the prosecutrix on the alleged incident and that substance was administered to the prosecutrix without her consent or knowledge. From
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perusal of the entire evidence led by the prosecution, specially the testimony of prosecutrix examined as PW1, it is clear that she was going voluntarily with accused to different places as she has also stated that whenever they had gone out they had consumed liquor although it has been alleged by the prosecutrix in the examination in chief that accused has offered her cold drink mixed with liquor in November, 2015 which she had refused, but accused administered the cold drink to her forcefully. But in the cross examination conducted by Ld. defence counsel on 16.02.2017 she had stated that whenever they used to go out , every time accused used to have forcible physical relations with her after administering liquor to her. As per the examination in chief, for the first time, liquor was administered to the prosecutrix forcibly in November, 2015 and finally the complaint was lodged by the prosecutrix on 18.02.2016 . This means from November, 2015 till February, 2016 whenever accused and prosecutrix had met with each other, she was forcibly administered liquor by the accused, as per the allegations of the prosecutrix, but no action was taken by the prosecutrix and despite knowing fully well, that accused is going to administer liquor to her and thereafter going to establish physical relations with her, prosecutrix continued going with him for six months.
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14. From the very perusal of these allegations and the explanation tendered by the prosecutrix , the allegations appears to be unfounded and not imaginable to the common knowledge of a common man. It is not possible for a girl to continue visiting different places with the same person, who is administering liquor upon her forcibly and later on having physical relations on each date with her, continuously for a period of six months unless she herself was having interest in going with him or that she was under
some kind of threat, coercion or force. Admittedly, there was no threat, coercion or force exerted upon prosecutrix by accused to roam with him. Secondly, there is no medical or scientific evidence to prove that, at any stage, prosecutrix was administered any such intoxicating substance, as the prosecution is silent about such result and no such sample was ever taken. Therefore, I am of the opinion that prosecution has not been able to prove beyond reasonable doubt that any intoxicating substance was administered to the prosecutrix by accused for a period of six months continuously with the intention of committing rape upon her. Hence, the accused is acquitted for the offence charged against him u/s 328 IPC .
15. As regards the offence u/s 376 IPC, for proving the said offence, prosecution has to prove that
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sexual relationship were established between prosecutrix and accused without the consent or against the consent of the prosecutrix. Section 375 IPC provides the definition of rape. Section 376 IPC provides the punishment for commission of such offence.
16. In the present case, prosecutrix had alleged that she was subjected to physical intercourse by accused , after administering the intoxicating substance to her and secondly, she has alleged that physical relations were established between prosecutrix and accused on the false pretext of marriage. It is totally unbelievable that a person while establishing physical relations with the girl under the pretext of marriage, will also administer liquor or intoxicating substance to the girl at same time. In my opinion, it is totally unbelievable and unacceptable. If the prosecutrix was subjected to physical relationship by the accused under the garb of marriage or false promise of marriage than there was no occasion for the accused to administer cold drink laced with Alcohol to her. If prosecutrix had consented to establish physical relation with accused on the promise of marriage made by accused, then there would not be any requirement for accused to make the prosecutrix unconscious , before establishing physical relations with her. But, in case, prosecutrix was not given any false promise of marriage,
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then accused may consider to establish physical relations with prosecutrix after administering her some intoxicating substance like alcohol, so that she does not resist the same. But presence of both the situations simultaneously can neither be believed nor had been proved by prosecution.
17. The question now arises whether the prosecutrix was intoxicated voluntarily or involuntarily by the accused on each occasion. In the cross examination, prosecutrix had admitted that she used to go out with accused and every time accused used to have forceful physical relations with her after administering liquor to her. In the same cross examination she has admitted that accused had administered Vodka and Royal Stag mixed with cold drink to her. She had stated in her cross examination recorded on 16.02.2017 that : I do not remember the date when for the first time accused had established physical relations with me. However, I remember that it was in South Extension Area. I can also say that whenever we meet with each other, every time accused used to have forcible physical relations with me, after administering liquor to me. The place of south Extension where for the first time our physical relations were established was residence of some person but since I was under the influence of liquor , I do not remember the name of that person. Accused had administered Vodka and drink by the name of Royal Stag, mixed with the cold drink. He used to make drinks outside the car while I used to be present in the car. I sometimes told accused that the quantity of peg is more so he should reduce it
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but he forced me to consume the same. Along with the drinks , we used to have burgers. Vol. I used to pay for the burgers. I did not used to take more then two pegs, however, accused used to have more then 3-4 pegs. No drink was consumed by us inside the house of South Extension as stated by me earlier. Before going in the said house I had already taken two drinks in the car.
18. From perusal of this paragraph, it is clear that the prosecutrix was knowing that she was being administered vodka or Royal Stag, therefore, she was aware of the presence of Alcohol in the cold drink. She has also stated that whenever the quantity of pegs used to be more she used to ask the accused to reduce the same. She has also admitted that she never used to take more than two pegs. It is impossible to believe that a person can be forced to have not more than two pegs. All these submissions of the prosecutrix clearly show that the alcohol was consumed by her voluntarily and willingly.
19. In the cross examination on 16.02.2017, prosecutrix has further stated that : I am aware that whenever any couple goes to any hotel for booking of room , they have to submit the identification document of both the occupants. But I never used to have my identification documents with me also I used to be under the influence of liquor so I do not know if any such document was given by the accused to the hotel or not. I used to give money to accused for making payments of the hotel, the payment used to include the payments for petrol,
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room, eatables and the drink. It is correct that the liquor used to be purchased by accused from my money. Accused was having a Santro car which was bearing number 2570. I do not remember the complete number.
20. From the perusal of this paragraph, it can be inferred that on one hand prosecutrix has alleged that she was forced to consume liquor and was forcefully subjected to sexually intercourse but on the other hand, she is claiming that hotel bills were paid by her and she used to pay the amount for petrol, room, eatables and the drinks etc. No sane person can believe that the prosecutrix when being subjected to forceful intercourse will be paying the amount for hotel stay, eatables and drink. Further in the cross examination she had admitted that before establishing physical relations in the car, they used to have drinks. Considering the entire testimony of prosecutrix, it is clear that the prosecutrix was consuming liquor voluntarily with the accused and only thereafter they were establishing physical relations with each other, it cannot be presumed by any stretch of imagination that the prosecutrix was being subjected to forceful physical relations by the accused after being put under the influence of liquor.
21. Coming to the second limb of allegation of prosecution that accused has subjected her to physical relation on the false pretext of marriage, it is the case of the
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prosecution that although accused was married , he has posed himself as unmarried person to the prosecutrix and by putting her under false impression of promise to marry, he had subjected the prosecutrix to physical relationship. Again in the cross examination, the case of the prosecution has been disproved by the testimony of prosecutrix herself. In the cross examination, prosecutrix has admitted that she was earlier married with Gurvinder Singh from whom she had taken mutual consent divorce on 09.06.2011 , as per Ex. PW1/DX1. She has submitted that thereafter she got married with Harvinder Pal Singh on 19.02.2011. It was the case of the defence that prosecutrix is still married to Sh. Harvinder Pal Singh and she has not taken any divorce from Harvinder Pal Singh but this fact was denied by the prosecutrix in her cross examination. Although later on she had admitted that she had filed a domestic violence petition against Harvinder Pal Singh , copy of which is Ex. PW1/DX2 and she has also admitted that this petition was dismissed in default on 04.07.2016, therefore, it has been admitted by the prosecutrix that at the relevant time from November, 2015 till February, 2016 when she has alleged that accused had promised to marry her and under this false pretext of marriage , he had subjected her to physical relationship, she was already married and was having a child and also her
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marriage was subsisting. It was within her knowledge that since she is already married, she could not legally marry to accused and even if there was a promise to marry, made by accused, prosecutrix should have known that she herself being a married woman cannot marry during the subsistence of her earlier marriage. Prosecutrix has admitted in her cross examination that she was aware of the fact that if a person male/female is married, he/she cannot marry with another person during the subsistence of previous marriage. Thus, I am of considered opinion that prosecutrix was knowing fully well that , being already married, she was not capable of solemnizing second marriage with accused, during subsistence of her earlier marriage and thus question of false promise of marriage by accused does not arise.
22. Thus, in view of my above discussion, I am of opinion that prosecution has not been able to prove the case beyond reasonable doubt that the accused has administered intoxicating substance to the prosecutrix or that he had committed offence of rape against the prosecutrix at any point of time. From the testimony of the prosecutrix it is clear that she was willingly and voluntarily visiting different places with accused and she was aware that she is a married lady and, therefore, could not have legally married with accused. Therefore, I am of the opinion that the prosecution has not
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proved its case beyond reasonable doubt and accused is acquitted for the offence u/s 376 IPC.
23. The accused Daljeet Singh is acquitted for the offences under section 376/328 IPC, as the prosecution has failed to prove the case against accused. Personal bond and surety bond of accused are extended for a period of further six months as per section 437A Cr.P.C., on the same terms and conditions.
24. File be consigned to the record room.
Announced in the open Court on (SHAIL JAIN) 03.11.2017. Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi
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