Delhi District Court
State vs . Arun @ Ankush Malik Page No. 1/8 on 27 February, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID no. 02406R0252792014
SC No. : 230/14 and 2236/16
FIR No. : 671/14
U/s. : 417/376/323/376/506/354 IPC and Section 4 ITP Act
PS : Amar Colony, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
1. Arun @ Ankush Malik
S/o Late Shri Santosh Singh Malik
R/o House no. B/56, Khanpur Extn.
New Delhi.
2. Pradeep Kumar @ Modi
S/o Dhanpal @ Dharampal
R/o H. No. 93, Gali No. 8/3,
Nihal Mohalla, Rafia Marg,
Sangam Vihar, New Delhi.
3. Dharam @ Dharamraj
S/o Late Pawan Kumar
R/o H. No. G50, Gali No. 8/3,
Nihal Mohalla, Rafia Marg,
Sangam Vihar, New Delhi. ................... Accused Persons
Date of Institution : 22.11.2014
Judgment reserved for orders on : 27.02.2017
Date of pronouncement : 27.02.2017
J U D G M E N T
FACTS :
1. On 12.08.2014, the prosecutrix (name withheld to protect her FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 1/8 identity) came at the police station Amar Colony, New Delhi and made a complaint alleging therein that she and accused Pradeep @ Modi used to live in house no. 8/3, Gali no. 8 Nitya Marg, Sangam Vihar, New Delhi. Her friend Nisha had introduced the accused to her. They came close and started meeting with each other. Earlier, the accused had taken a room on rent for her at Govind Puri where he used to come. He made physical relations with her giving her assurance of marriage. He thereafter told her that they have to earn money and would construct a house. He induced her to go into prostitution. He started sending her to hotels at Suraj Kund for prostitution. When she fell ill and refused to go there, he beat her. She alleged that on 03.08.2014 at about 2:30 a.m., the accused Modi came with the accused Arun @ Ankus and Dharmu in the house. After some time, accused Arun left the house. Accused Dharmu started molesting her. Accused Modi took her inside the room and committed rape upon her. When she abused them, both of them beat her. On 10.08.2014, accused Modi again came to her and beat her. He threatened her not to make complaint lest he would throw acid on her.
INVESTIGATION :
2. On her complaint, the case was registered u/s 376D, 323/506/34 IPC and u/s 5 and 8 of ITP Act. The prosecutrix was got counseled. Her statement u/s 164 Cr.P.C. was got recorded. Accused persons were arrested. They were got medically examined qua their potency. After the investigation, all the accused persons were sent for trial for the aforesaid offences.
CHARGE :
3. After complying with the requirements contemplated u/s 207 FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 2/8 Cr.P.C, the case was committed to this Court. Vide order dated 06.05.2015, prima facie case was made out against the accused Pradeep Kumar @ Modi u/s 417/376 IPC, Section 4 of ITP Act, 323/34, 376, 323/506 IPC, u/s 354 IPC against the accused Dharmu @ Dharamraj and u/s 323/34 IPC against the accused Arun @ Ankush Malik. Charges were framed. They pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused persons, prosecution examined as many as ten witnesses.
PW1 ASI Kailash Singh recorded the FIR Ex.PW1/A. PW2 Ct. Dheeraj took the accused Arun @ Ankush to AIIMS for his medical examination. He collected his exhibits and handed over to the IO.
PW3 W/Ct. Poonam took the prosecutrix to AIIMS for her medical examination. She collected her MLC and handed over to the IO.
PW4 ASI Saroj Bala was present when the prosecutrix came in the police station and made the complaint. She produced the prosecutrix before the SHO and sent her to AIIMS with PW3 for her medical examination. She handed over further investigation to SI Rajni Chopra.
PW5 HC Surender was with PW2 Ct. Dheeraj when the accused Arun was taken to AIIMS.
PW6 HC Suresh went with the IO and the FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 3/8 prosecutrix to House no. M38, Doublse Storey Amar Colony for the search of the accused persons. He stated that they made inquiry from the neighbours who told them that no such incident came to their notice. They arrested the accused Arun from near LSR vide arrest memo Ex.PW6/A. PW7 Dr. Piyush did the medical examination of accused Dharmu @ Dharamraj vide MLC Ex.PW7/A and found him capable of performing sexual intercourse under normal circumstances. He took his blood sample and handed over to the police. PW8 Ms. Bhavna Kalia recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW8/B. PW9 Dr. Archna Bharti proved the MLC of the prosecutrix Ex.PW9/A prepared by Dr. Japleen Kaur. She stated that as per the MLC, there were superficial abrasion on her nose and cheek. It was a case of old rupture of hymen.
PW10 Inspector Rajni Chopra was the investigating officer of this case. She deposed on the lines of investigation. She prepared the site plan, got the accused and the prosecutrix medically examined and arrested the accused persons. She also proved the MLC of the accused Dharmu @ Dharamraj Ex.PW7/A and Pradeep Ex.PW10/I as per which both the accused persons were capable of performing FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 4/8 sexual intercourse under normal circumstances. On being crossexamined, she stated that the prosecutrix was got counseled. She also proved the counseling report Ex.PW10/DA, which finds mention that the prosecutrix got registered the case against the accused persons as she was enraged and no rape was committed. She was also confronted with the statement u/s 164 Cr.P.C. wherein the prosecutrix had stated that the accused Pradeep committed sexual intercourse with her with her consent and she made the complaint since she wanted to marry with him. She stated that she took the prosecutrix to Suraj Kund but she did not identify the place nor she got any evidence that the prosecutrix was sent to different places for prostitution by the accused Pradeep or that he used to live on the earnings of the prostitution. She stated that from the neighbours, she came to know that the prosecutrix and the accused used to live together.
5. The crux of the offence of rape under section 375 IPC is sexual intercourse by a man with a woman against her will and without her consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 5/8 terror or false promise is not consent.
6. In the instant case, the prosecutrix was not examined. As per the report submitted by the IO vide proceeding dated 22.09.2016, she was murdered on 09.07.2016 and the case in respect thereof was registered at PS Neb Sarai vide FIR no. 571/16.
7. The most material witness in the instant case was the prosecutrix.
8. In the complaint Ex.PW10/A, the prosecutrix had alleged that she and the accused Pradeep @ Modi used to live together in a house at Sangam Vihar. Earlier, she used to live on rent at Govind Puri. Accused Pradeep used to come there and made physical relations with her. He also promised to marry her.
9. In the history narrated during her medical examination vide MLC Ex.PW9/A, she had alleged that she had a consensual sexual relationship with the accused Pradeep for three years. She also alleged that the accused used condom. She was not aware of his marital status. She did not allege that on 03.08.2016, the accused Pradeep came with the accused Arun @ Ankus and Dharmu where Dharmu molested her.
10. In her statement u/s 164 Cr.P.C. Ex.PW8/B, she did not say anything incriminating against the accused persons. She had stated that she was in relationship with the accused Pradeep for many years. He committed sexual intercourse with her with her consent. He told her that he would marry her but he did not. She made the complaint since she wanted to marry with him. In that statement, she did not allege anything incriminating against the accused Arun @ Ankus and Dharmu. She had categorically stated that the accused committed sexual intercourse with her FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 6/8 with her consent. She was silent about previous marriage of Pradeep @ Modi rather she harped that she has to marry with the accused. It is strange that she despite knowing that Pradeep @ Modi is already married wanted to marry with him.
11. In the instant case, she was counseled. As per the counseling report Ex.PW10/DA, a quarrel took place between her and the accused Pradeep. Accused Arun @ Ankus and Dharmu also quarreled with her. She wanted to teach them a lesson, so, she made the complaint on 12.08.2014. She specifically stated that no rape was committed upon her.
12. Testimony of the IO/ PW10 and PW6 would show that they had made inquiry from the neighbourhood and they told them that no such incident came to their notice. PW10 has stated that she had taken the prosecutrix to Suraj Kund but she could not point out the place where she was taken for prostitution. She could not get any evidence that the prosecutrix was sent to different places for prostitution or the accused Pradeep lived on the earnings of prostitution.
13. Looking into the above contradictions and inconsistencies, the examination of the prosecutix was relevant. Since in the instant case, the prosecutrix could not appear because she was murdered, it could not be proved whether the accused Pradeep Kumar @ Modi elicited her consent for physical relations giving her false promise of marriage and committed sexual intercourse with her several times on that pretext or that he sent her to hotel at Suraj Kund for prostitution and lived on her earnings from prostitution or he beat the prosecutrix when she refused to go for prostitution or on 03.08.2014, he committed rape upon the prosecutrix or on 10.08.2014, he beat her and threatened her to kill by throwing acid.
FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 7/8 Except the complaint, the other statements recorded during investigation completely exonerate the accused Dharmu @ Dharamraj from the offence u/s 354 IPC and accused Arun @ ankush Malik from the offence u/s 323/34 IPC with which they have been charged. No evidence was collected by the investigating agency whether the accused Pradeep @ Modi was married prior to meeting with the prosecutrix.
14. On an analysis of the material and evidence placed on record, I am of the view that no incriminating evidence came against the accused persons even to record their statements u/s 313 CrPC. Their statements u/s 313 CrPC were dispensed with.
15. In the light of the above discussions, in the absence of any incriminating evidence against the accused persons, accused Arun @ Ankush Malik is acquitted of the offence punishable u/s 323/34 IPC. Accused Pradeep Kumar @ Modi is acquitted of the offences punishable u/s 417/376 IPC, Section 4 of ITP Act, 323/34, 376 and 323/506 IPC. Accused Dharmu @ Dharamraj is acquitted of the offence punishable u/s 354 IPC. Their bail bonds be cancelled. Their sureties be discharged. They are however, directed to furnish bail bond in the sum of Rs. 35,000/ each with one surety each in the like amount, in compliance of section 437A Cr.P.C.
16. The file be consigned to Record Room.
Announced in the open court today i.e. 27.02.2017 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 671/14 PS : Amar Colony State Vs. Arun @ Ankush Malik Page No. 8/8