Delhi District Court
State vs . Pawan Salunke 1/16 on 27 November, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 655/2018
State V Pawan Salunke s/o Mahender Salunke,
r/o. H. No.75, Salunke Vihar, Dakshta
Nagar, Tapovan Road, Ahmed Nagar,
Maharashtra.
FIR No. 122/2018
U/s 376/328 IPC
Police Station Prashad Nagar
Assigned to Sessions 31.08.2018
Charges framed on 25.09.2018
Arguments heard on 27.11.2019
Judgment pronounced on 27.11.2019
Decision Acquitted.
Appearance : Sh. Ateeq Ahmad, ld. Addl. PP for the State.
Sh. Narender Kalra, ld. Counsel for accused.
JUDGMENT:
1. The case of the prosecution is that, the Station House Officer of Police Station Prashad Nagar had filed a chargesheet before the court of ld. Metropolitan Magistrate vide FIR No.122/2018 dated 13.05.2018 u/s. 376/328 IPC for the prosecution of accused Pawan Salunke and after compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the Case No.655/2018 State Vs. Pawan Salunke 1/16 women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Hon'ble Supreme Court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475"
and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name and identity of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. That, the prosecutrix made a handwritten complaint on dtd. 13.05.2018 in PS Prashad Nagar and on the said complaint, the present case FIR u/s 376 IPC was registered and in that handwritten complaint, the prosecutrix has alleged that in the month of February'2017, the prosecutrix came to Old Rajinder Nagar, New Delhi for stay and she started going to library for reading purposes where Pawan Salunke (accused herein) met her and he always tried to talk her. In the month of August, 2017, the accused used to come to library at Old Rajinder Nagar and he used to seat beside the prosecutrix and used to talk her. Thereafter, the prosecutrix and accused be friended. Thereafter, accused promised her to marry and used to care her. The accused promised her that he would marry with her after the two months. Thereafter, the accused called her in his flat No.11649/1 Sant Nagar, Karol Bagh in the month of October'2017 where the accused established physical relation with the prosecutrix on the false pretext of marriage and thereafter, he told her that he will do court marriage with her. The prosecutrix visited his room 56 times and the accused established physical relation with the prosecutrix in the month of November,2017. Thereafter, the accused started avoiding her by saying that she was older than him and he does not like her personality and he cannot see her face and his horoscope does not match with the horoscope of the prosecutrix. Thereafter, he stopped to meet her and to respond her calls. Thereafter, he Case No.655/2018 State Vs. Pawan Salunke 2/16 promised for the marriage with the prosecutrix within a month but he spent five months but did not marry with her. That, in the month of April'2018, accused flatly refused to marry with her and during the said period, he mentally tortured and harassed her by abusing her several times. He also provoked her to commit suicide and whenever she used to talk for the marriage, he used to become angry upon her and tried to scuffle with her and on the basis of this complaint, W/SI Prabha prepared rukka and get the case registered and then she along with prosecutrix reached at the place of incident and prepared site plan.
3. That, on dtd. 13.05.2018, prosecutrix was medically examined in Hindu Rao Hospital. She refused for her internal medical examination. On dtd. 14.05.2019, prosecutrix was produced in the court of Ld. MM where her statement u/s 164 Cr.P.C. was recorded.
4. That, on dtd. 31.05.2018, accused was arrested and he was medically examined from Loknayak Hospital, New Delhi.
5. After the investigation, chargesheet was filed.
CHARGE:
6. That, on the basis of material available on record as well as the evidence, collected by the I.O. during the course of investigation, this court vide order dated 25.09.2018 framed charge against accused Pawan Salunke for the offence punishable u/s. 376 (2)(n) IPC to which accused pleaded not guilty and claimed trial.
Case No.655/2018 State Vs. Pawan Salunke 3/16PROSECUTION WITNESSES:
7. That, in order to prove its case, prosecution has examined 08 witnesses namely PW1 Prosecutrix 'R', PW2 ASI Sunil Kumar, PW3 Rakesh Kumar, PW4 W/Ct. Suman, PW5 Dr. Arshi Perween, PW6 W/SI Prabha, PW7 Ms. Shilpi Jain, Ld. MM and PW8 Dr. Raj Kumar.
PWs Name of the Nature of the Documents proved
Witness witness
PW1 Prosecutrix 'R' Victim/ Prosecutrix being victim of the
Complainant alleged sexual assault has testified about her statement given to the police which is Ex.PW1/A as well as making of her statement u/s 164 Cr.P.C. before Ld MM Ex.PW1/C. She has proved her MLC vide MarkA. She has also proved arrest memo of the accused vide Ex.PW1/B. PW2 ASI Sunil Police witness He has proved recording of FIR Kumar vide Ex.PW2/A. He also gave certificate under section 65B of the Evidence Act vide Ex.PW2/B regarding correctness of the contents of computerized copy of FIR.
PW3 Rakesh Kumar Public witness This witness is the owner of property i.e. flat situated at Third Floor, 11649/1, Sant Nagar, Karol Bagh and in the year 2016 he had let out the above said flat to four tenants including accused Pawan Kumar. He has proved rent agreement dtd. 27.03.2017 vide Ex.PW3/A. He further deposed that the staircase of the above said flat is separate and he was not Case No.655/2018 State Vs. Pawan Salunke 4/16 aware as to who was coming into the above said flat and who was going from the above said flat during the above said tenancy.
PW4 W/Ct. Suman Police witness This witness has taken the prosecutrix to Lady Hardinge Hospital for getting her medically examined and got her medically examined vide her MLC Mark A1.
PW5 Dr. Arshi Medical This witness has conducted general Perween Witness examination of prosecutrix vide MLC Ex.PW5/A. She deposed that during examination, the hymen of the prosecutrix was found "Old Torn". She further deposed that prosecutrix had refused for her internal examination and her refusal was recorded on the said MLC at point X bearing her thumb impressions at point A2 to A3 and her UPT was found negative.
PW6 W/SI Prabha Investigating This witness is the Investigating
Officer Officer. This witness has deposed
on the lines of investigation.
This witness has got medically
examined the prosecutrix from
LHMC Hospital vide MLC
Ex.PW5/A. This witness has
proved written complaint of
prosecutrix vide Ex.PW2/A and
she made her endorsement
Ex.PW6/A on the above said
complaint and prepared rukka and
produced the same to DO for the
registration of the FIR and got FIR
registered vide Ex.PW2/A.
During the course of investigation,
Case No.655/2018
State Vs. Pawan Salunke 5/16
she inspected the place of
occurrence and prepared site plan
already exhibited as Ex.PW1/C.
During the course of investigation,
she got the statement of the
prosecutrix u/s 164 Cr.P.C.
recorded.
During the course of investigation,
this witness has arrested the
accused in this case vide arrest
memo Ex.PW6/C and his potency
test was also got conducted at Lok
Nayak Hospital vide his MLC
Ex.PW6/D.
This witness has also collected rent
agreement executed by the
Landlord of the accused in favour
of the accused regarding his rented
room where the incident of the
present case has taken place and
same is already exhibited as
Ex.PW3/A.
PW7 Dr. Ms. Shilpi Ld. MM This witness has recorded the
Jain, statement u/s 164 Cr.P.C. of the
prosecutrix vide Ex.PW1/B.
PW8 Dr. Raj Kumar Medical This witness has proved the
witness potency test report of accused vide
Ex.PW6/D and opined that 'there is
nothing to suggest that the person
examined is incapable of
performing sexual intercourse.'
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
8. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and his statement was recorded u/s Case No.655/2018 State Vs. Pawan Salunke 6/16 313 Cr.P.C. Accused denied all the incriminating evidence against him. Accused claimed that he does not know why the case is against him. Accused has preferred to lead defence evidence but he could not brought the defence evidence. Hence, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
9. Ld. counsel for accused has argued that the prosecutrix in her complaint to police never mentioned about the incident of intoxication whereas in her both statements u/s 161 Cr.P.C. prosecutrix alleged that she became unconscious after drinking Sharbat and eating Maggi. Further, in her statement u/s 164 Cr.P.C. prosecutrix specifically alleged that she became semi conscious after consuming sharbat and maggi. In her examination in chief, prosecutrix further improved upon her statement by saying "I started feeling uneasiness and losing control of myself" while in her cross examination she mentioned "I was feeling uncomfortable after consuming Maggi and Sharbat, my head was becoming heavy."
10. It is further submitted by ld. Counsel for accused that accused is an aspiring civil servant with excellent academic record and with no criminal precedence whatsoever, will not jeopardize his career and life by involving himself in such a heinous crime as rape and make a submission that accused may kindly be acquitted in this case FIR.
11. Per Contra, Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution and in her complaint and her statement u/s 164 Cr.P.C., she has specifically deposed against the accused regarding the incident. It is further submitted by ld. Addl. PP for the State that on the pretext of false Case No.655/2018 State Vs. Pawan Salunke 7/16 promise, prosecutrix kept waiting for the time to come so that the accused may marry her and it was not a consensual sex but she was physically exploited under false promise to marry by the accused and make a submission that accused is liable to be convicted.
PERUSAL OF RECORD:
12. Arguments heard. Record perused. On perusal of record, it is revealed that on the written complaint of prosecutrix Ex.PW1/A, present FIR was registered against the accused.
13. Before reaching at any conclusion, let the relevant section i.e. 376 (2)(n) IPC be reproduced, which is as under: Section 376 (2) (n) IPC:
(2) Whoever,
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
FINDINGS OF THIS COURT:
14. Having heard the arguments advanced by ld. Counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the prosecution witnesses, this court is of the considered view that a hand written complaint was made by the prosecutrix in PS Prashad Nagar on dtd. 13.05.2018 wherein she has alleged that on the pretext of marriage, the accused established physical relation with her forcibly and without her consent and on the complaint of the prosecutrix, the present case FIR was registered against the accused.
15. That, this court is very much conscious of the fact that evidence of the Case No.655/2018 State Vs. Pawan Salunke 8/16 prosecutrix is required to be appreciated in a realistic human assessment. It is an established law that evidence of the prosecutrix did not require any corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. It has also been laid down by Hon'ble Apex Court of India in various judgments that evidence of the prosecutrix can be sole basis of conviction, provided testimony of the prosecutrix is worth of credence, believable and trustworthy.
16. That, the allegation against the accused are that the accused has served the Maggi and Sharbat to consume and after consuming the same, the prosecutrix felt uneasiness and thereafter, the accused established physical relation with her forcibly on the pretext of marriage.
17. After collecting the evidence and completion of investigation, the I.O. filed the chargesheet u/s 376/328 IPC but there was no evidence on record in respect of intoxicated sharbat alleged to have been served by the accused to the prosecutrix and thereafter, charge against the accused was framed only u/s 376 IPC and the prosecutrix was summoned to depose against the accused.
18. That, the prosecutrix appearing in the witness box as PW1 and she has deposed that she has done B.Sc. (Computer Science) from Pune and also studied MBA course and she come to Delhi in February2017 for preparation of the UPSC exam and used to reside in Old Rajinder Nagar, New Delhi and when she was taking the coaching for UPSC exam, she started to visit library where the accused also used to come and started to sit behind to her in the library and also used to talk to each other.Case No.655/2018 State Vs. Pawan Salunke 9/16
19. It has also been deposed that during their conversation, accused proposed her for marriage and in September'2017 when she was at her coaching Centre, Vaji Rao, accused told her that his parents had come to his flat and asked her to meet them. She accompanied the accused and reached at his flat at Sant Nagar, Karol Bagh, New Delhi and she found nobody present in the flat. Accused prepared Maggi for her and offered her water. She took Maggi and also consume some Sharbat offered by accused and after taking the same, she felt uneasiness and losing control on herself. In the meantime, accused removed her clothes despite her unwillingness and established physical relation with her without her consent in a short duration for 56 minutes. She was helpless and she did not raise alarm as accused promise her to marry and even thereafter, the accused established physical relation with her so many times.
20. The present FIR was registered on the hand written complaint made by the prosecutrix to the police on dtd. 13.05.2018 and thereafter, her statement u/s 164 Cr.P.C. was got recorded by Ld. MM and her statement u/s 161 Cr.P.C.
was also recorded by the I.O. and perusal of the handwritten complaint made by the prosecutrix to the police as well as the statement u/s 164 Cr.P.C. and the testimony of the prosecutrix, this court is of the considered view that there is material improvement in the statement made by the complainant on the ground that it has no where been mentioned in the complaint made by the prosecutrix to the police on dtd. 13.05.2018 that any Maggi or Sharbat was offered by the accused at his flat where the alleged physical relation made by the accused with the prosecutrix without her consent.
21. This court is also of the considered view that there is material contradiction in the statement made by the prosecutrix to the police, her statement u/s 164 Case No.655/2018 State Vs. Pawan Salunke 10/16 Cr.P.C. and her testimony deposed in the court.
22. That, in her testimony, prosecutrix has deposed that in the month of October'2017, accused established physical relation with her on pretext of marriage but there is no date as to on which date, the accused had established physical relation with the prosecutrix forcibly and on the pretext of marriage.
23. It has also been deposed by the prosecutrix that the physical relation made by the accused on the pretext of marriage with the prosecutrix lastly in the month of November'2017 but there is no date mentioned by the prosecutrix as to on which date, physical relation were established by the accused with her forcibly on the pretext of marriage.
24. That, the testimony of the prosecutrix itself is self contradictory, unreliable and untrustworthy on the ground that she has no where mentioned either in her handwritten complaint made to the police or in the statement u/s 164 Cr.P.C. or in her testimony deposed in the court as to on which date the accused proposed her for marriage.
25. There is material contradiction and improvement in the testimony of the prosecutrix on the ground that there is no allegation in the handwritten complaint made by the prosecutrix to the police that when the accused established physical relation with her, the accused made the video and took the photographs but in the statement u/s 164 Cr.P.C. she has mentioned this fact. That in the cross examination prosecutrix has admitted that the I.O. of this case never visited the room of the accused where the alleged incident of establishing physical relation forcibly was occurred and PW6 who is the I.O. of this case Case No.655/2018 State Vs. Pawan Salunke 11/16 has deposed that she went twice with the prosecutrix to the room of accused where the alleged incident of establishing physical relation forcibly was occurred.
26. That, so far as the issue that the accused established physical relation with the prosecutrix forcibly on the pretext of marriage is concerned, the prosecutrix being a matured and educated lady and she is well aware of the consequences of making physical relation with the accused and if she allowed the accused to have physical relation with her then it cannot be said that the consent given by her under misconception of fact and false promise is not a fact within meaning of the court.
27. That, section 90 of the IPC defines "consent" known to be given under fear or misconception. Section 90 of IPC speaks that a consent is not such a consent as it intended by any section of this court, if the consent is given by a person under fear of injury, or under a misconception of act, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. Section 90 though does not define "consent" but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 IPC requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercise the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. The Hon'ble Apex Court of India in Uday Vs. State of Karnataka (2003) 4 SCC Case No.655/2018 State Vs. Pawan Salunke 12/16 46 has held that the complaint was lodged on failure of the accused to marry her. And it was held that consent cannot be said to be given under a misconception of fact and further held thus "it therefore appear that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the code." Reliance is placed upon Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra, 2018, SC 3100.
28. That, in the landmark judgment, The Hon'ble Supreme Court of India has held that "the failure to keep a promise made with respect to a future uncertain date, due to reason that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirely, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
29. That, after the registration of the case FIR, the prosecutrix was medically examined by doctor of LHMC and Smt. S.K. Hospital, New Delhi wherein she has told to the concerned doctor the alleged history of the offence and she has stated to the doctor concerned that she has a boy friend (Pawan Salunke) 26 years old. She has consensual sexual intercourse multitime, last in November'2017. He used condom for every sexual intercourse and now her boyfriend denied to accept her and there was no injury mark on the person of Case No.655/2018 State Vs. Pawan Salunke 13/16 the prosecutrix when her medical examination was conducted.
30. PW5 Dr. Arshi Perween, who conducted medical examination of prosecutrix has also deposed that prosecutrix herself denied for her internal examination and sampling and the prosecutrix herself told the history to the doctor which has been written on the MLC and if the prosecutrix has told to the doctor who conducted medical of the prosecutrix that the sexual relation made by the accused with her was consensual then question does not arise to prove that the accused has ever committed any offence as alleged in the present case FIR.
31. There are no allegation in the written complaint made by the prosecutrix to the police in respect of the making the obscene photographs and video but she has stated in her statement u/s 164 Cr.P.C. before the Ld. MM that accused had taken obscene photographs and make the video but there is no evidence on this aspect and prosecution has not been able to produce any such evidence to prove that accused ever taken the obscene photographs and made the video of the prosecutrix.
32. That, there is inordinate delay in respect of the registration of the FIR on the ground that as per the allegation, the accused established physical relation with the prosecutrix in November 2017 and the complaint was lodged against the accused on dtd. 13.05.2018 and the delay to lodge FIR has been explained neither by the prosecution nor by the prosecutrix.
33. That, as per law laid down by Hon'ble Apex Court of India that first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report hardly be overestimated from the standpoint of the Case No.655/2018 State Vs. Pawan Salunke 14/16 accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed and when an occurrence is not reported for more than 32 days after the occurrence though the police station is only at a very short distance from the place of the occurrence then it is unsafe to base conviction upon the evidence. Reliance is placed upon Thulia Kali V State of Tamil Nadu, AIR 1973 S.C. 501.
34. That, in criminal trial, one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why, if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for Case No.655/2018 State Vs. Pawan Salunke 15/16 implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution. Reliance is placed upon Dilawar Singh v/s State of Delhi, Criminal Appeal No.491 of 2002 decided on 05.09.2007 of Hon'ble Supreme Court of India.
35. Therefore, in view thereof, this court is also of the considered view that the prosecution has not been able to prove its case against the accused beyond all reasonable doubts. Therefore, in view of the aforesaid, accused Pawan Salunke is acquitted from the charges u/s 376 (2)(n) IPC.
36. In terms of section 437 A Cr. P.C., accused is directed to execute bail bond in sum of Rs.20,000/ with one surety in the like amount.
37. Since the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
38. Every page of this judgment is signed by me.
39. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 27.11.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Case No.655/2018 State Vs. Pawan Salunke 16/16