Delhi District Court
State vs 1. Mr. Hari Om, on 31 August, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
State versus 1. Mr. Hari Om,
Son of Mr.Ram Gopal Rathore
2. Mr. Sarvesh,
Son of Mr. Ram Gopal Rathore,
Both residents of Saroj Nagar, PS Kotwali Bhind,
District Bhind, M.P.
First Information Report Number : 207/2013
Police Station Uttam Nagar
Under sections 376/420/406/506/120-B/34 of the Indian Penal Code
and sections 3 and 4 of the Dowry Prohibition Act.
Date of filing of the charge sheet before : 23.07.2013
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 30.07.2013.
Arguments concluded on : 31.08.2013.
Date of judgment : 31.08.2013.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Accused Hari Om in on interim bail.
Accused Sarvesh is on bail.
Mr. Ravi Kumar, counsel for both accused persons.
Mr.Shubra Mehndiratta, counsel for Delhi Commission for
Women.
Prosecutrix in person.
Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar
Under sections 376/420/406/506/120-B of the Indian Penal Code
and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 1
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Mr. Hari Om and Mr. Sarvesh, both the accused persons, have been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under sections 376/420/406/506/120-B/34 of the Indian Penal Code (hereinafter referred to as the IPC) and sections 3 and 4 of the Dowry Prohibition Act (hereinafter referred to as the DP Act) on the allegations that on 09.10.2012 at about 3.30-4.00am at D-26, Mohan Garden Ext, near Laxmi Vihar, Uttam Nagar Delhi within the jurisdiction of Police Station Uttam Nagar accused Mr.Hari Om committed rape on the prosecutrix (name withheld to protect her identity) on the false pretext of marriage. Accused Mr.Hari Om got engaged with prosecutrix on 02.07.2012 and after engagement in pursuance of the demand of money raised by accused Mr.Hari Om and his family members of the cash of Rs.28,000/- was given by the father of the prosecutrix Mr. Ramesh Rathore to his father in Gwalior and thereafter on one occasion cash of Rs.4000/- was deposited in his bank account by the prosecutrix and after 02.07.2012 in the month of Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 2
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July 2012 at D-26, Mohan Garden Ext, Near Laxmi Vihar, Uttam Nagar accused Hari Om demanded a cash of Rs.15,000/- from the prosecutrix and her mother as dowry and thereafter on several occasions he along with co- accused Sarvesh and other family members raised a demand of money, laptop and two plots (one in Delhi and other in M.P). After engagement on several occasions accused Mr.Sarvesh along with his brother/co-accused Hari Om and other family members raised a demand of money, laptop and two plots (one in Delhi and other in M.P). On 18/19.11.2012 accused Mr.Sarvesh telephoned the prosecutrix asking her to transfer two plots in the name of his brother/co-accused Hari Om and his his name and when prosecutrix refused for the same, accused Mr.Sarvesh extended threats to kill her.
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 23.07.2013 and after its committal, the case has been assigned to the Court of the Additional Sessions Judge (SFTC)-01, West, THC, Delhi for 30.07.2013.
3. After hearing arguments, charge for offence sunder section 376/ 420 of the IPC) and under sections 3 and 4 of the DP Act was framed against accused Hari Om. Charge for the offence under section 506 of the IPC and under section 4 of the DP Act was framed against accused Sarvesh. Both the accused persons pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 3
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prosecutrix as PW1.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. The prosecutrix, as PW1, has deposed that she got engaged with accused Mr.Hari Om on 02.07.2012. After engagement accused Hari Om started visiting her house i.e. D-26, Mohan Garden Extn, Uttam Nagar, New Delhi -59. On 09.10.2012, accused Mr.Hari Om came to her house at about 3.30-4.00am at that time her mother and sister were sleeping on the terrace of her house and herfather had gone to buy vegetables. Accused Mr.Hari Om insisted her to have physical relations with her for which initially she did not agree but when he stated that they were about to get marriage so she agreed for the same and had physical relations in her house. Thereafter, due to some misunderstanding accused Mr.Hari Om refused to marry her and his family members also supported the accused Mr.Hari Om. At the instance of her well wishers she lodged a complaint (Ex.PW1/A). Now she had got married with accused Hari Om on 26.08.2013 in Arya Samaj Mandir at Yamuna Bazar as per Hindu rites and customs. This marriage was Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 4
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solemnized with the consent of her parents as well as the parents of accused Mr.Hari Om. Her mother namely Ms. Kamla Devi and mother of the accused Hari Om, Ms. Urmila as well as his brother Mr. Sarvesh (co- accused) had attended the wedding in Arya Samaj Mandir. The marriage certificate of her marriage with accused Hari Om (Ex.P1) was produced by her. The joint application on behalf of the accused Hari Om and herself (Ex.P2) was filed along with the affidavit of accused Hari Om and her affidavit (Ex.P3 and Ex.P4 respectively). She did not have any grievances against the accused Mr.Hari Om. Accused Mr.Hari Om had promised to marry her and has honoured his promise. Accused Mr.Hari Om has not committed any offence. Accused Sarvesh is innocent and has not committed any offence. She is happily married with the accused Mr.Hari Om and does not want any action against him and co-accused Sarvesh. From the Police Station, she was taken to DDU Hospital for her medical examination. She was produced before the learned Metropolitan Magistrate in the Court where her statement (Ex.PW1/B) was recorded. Due to some misunderstanding and at the instance of well wisher she had made her statement before the learned Metropolitan Magistrate but now she has no grievances against both the accused persons. Both the accused persons may be acquitted since they have not committed any crime against her.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
8. In her cross examination by the Additional Public Prosecutor for Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 5
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State, the prosecutrix has admitted that she can read and write Hindi as well as English. She is a Law graduate and she is aware about the legal process. The complaint (Ex.PW1/A) is read over to the witness and she denied the contents of the complaint stating that the said complaint was made by her at the instance of her well wisher and due to some misunderstanding. She is confronted with the statement Ex.PW1/A, where it is so recorded. The statement before the learned Metropolitan Magistrate (Ex.PW1/B) is read over to the witness and she stated that she had not made the said statement voluntarily. She denied the suggestion that on 09.10.2012 at about 3.30-4.00am in her house accused Mr.Hari Om had raped her on the false pretext of marriage. She has also denied the suggestion that after her engagement with the accused Mr.Hari Om and his family members including co-accused Mr.Sarvesh had raised demand of cash, laptop and two plots as dowry from her parents. She has denied the suggestion that on 18/19.11.2012 accused Mr.Sarvesh telephoned her asking her to transfer two plots in the name of co-accused Mr.Hari Om as well as in the name of accused Sarvesh and when she refused for the same, accused Sarvesh extended threats to kill her. She has denied the suggestion that she is deliberately not telling the truth before the Court today in order to save the accused Mr.Hari Om who has since married her and accused Mr.Sarvesh who is now her brother in law. She has denied the suggestion that she is deposing falsely.
9. In her cross examination by the accused, the prosecutrix has admitted that both the accused persons are innocent and have not committed Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 6
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any offence. She has admitted to be correct that she is happily married with accused Mr.Hari Om and she does not have any grievance against both the accused persons.
10. The prosecutrix, has not deposed an iota of evidence of her being raped at all. She has not even mentioned the word "rape" in her evidence nor has deposed anything incriminating against both the accused Mr.Hari Om and Mr. Sarvesh.
11. In the circumstances, as PW1, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused, the prosecution evidence is closed, declining the request of the Substitute Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are official, formal or public in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile. It shall also not be in the interest and welfare of the prosecutrix that the evidence is recorded further as she has deposed that she is happily married with accused Mr.Hari Om and does not have any grievance against him and her brother in law i.e. accused Mr.Sarvesh .
12. Statements under section 313 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) of both the accused persons are Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 7
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dispensed with as there is nothing incriminating against them when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
13. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
14. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
15. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
16. Consequently, no inference can be drawn that the accused Mr.Hari Om is guilty of raping the prosecutrix. There is no material on record to suggest that the prosecutrix was ever raped by the accused Mr.Hari Om or that there is any demand of dowry by both the accused persons Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 8
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Mr.Hari Om and Mr.Sarvesh and their family members as well as threats given by accused Mr.Sarvesh . No case is made out against both the accused as there is no incriminating evidence against them.
17. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused are innocent and has not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
18. Consequently, no inference can be drawn that accused Mr.Hari Om is guilty of the charged offence under section 376/420 of the IPC and under sections 3 and 4 of the DP Act and accused Mr.Sarvesh is guilty of the charged offence under section 506 IPC and under section 4 of the DP Act. There is no material on record to show that the accused Mr.Hari Om on 09.10.2012 at about 3.30-4.00am at D-26, Mohan Garden Ext, Near Laxmi Vihar, Uttam Nagar Delhi committed rape on the prosecutrix on the false pretext of marriage and after engagement in pursuance of the demand of money raised by accused Mr.Hari Om and his family members of the cash of Rs.28,000/- was given by the father of the prosecutrix Mr. Ramesh Rathore to his father in Gwalior and thereafter on one occasion cash of Rs. 4000/- was deposited in his bank account by the prosecutrix and after 02.07.2012 in the month of July 2012 at D-26, Mohan Garden Ext, Near Laxmi Vihar, Uttam Nagar, accused Mr.Hari Om demanded a cash of Rs. Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 9
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15,000/- from the prosecutrix and her mother as dowry and thereafter on several occasions he along with co-accused Mr.Sarvesh and other family members raised a demand of money, laptop and two plots (one in Delhi and other in M.P). After engagement on several occasions accused Sarvesh along with his brother/co-accused Mr.Hari Om and other family members raised a demand of money, laptop and two plots (one in Delhi and other in M.P) and on 18/19.11.2012 accused Mr.Sarvesh telephoned the prosecutrix asking her to transfer two plots in the name of his brother/co-accused Mr.Hari Om and his name and when prosecutrix refused for the same, ac- cused Mr.Sarvesh extended threats to kill her.
19. From the above discussion, it is clear that the evi- dence of the prosecution is neither reliable nor believable and is not trust- worthy and the prosecution has failed to establish rape, threat and demand of dowry. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place.
20. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused, Mr.Hari Om, for the offence under sections 376/ 420 of the IPC and under sections 3 and 4 of the DP Act and the charge against the accused Mr. Sarvesh for the offence under section 506 of the IPC and under section 4 of the DP Act
21. Consequently, the accused, Mr. Hari Om, is hereby Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 10
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acquitted of the charge for the offence under sections 376/420 of the IPC and under sections 3 and 4 of the DP Act and accused Mr. Sarvesh is hereby acquitted of the charge for the offence under section 506 of the IPC and under section 4 of the DP Act.
22. Compliance of section 437-A Cr.P.C. is made in the order sheet.
23. Case property be destroyed after expiry of period of limitation of appeal.
24. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
25. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
26. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 11
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Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 31st day of August, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 125 of 2013.
Unique Case ID Number : 02401R0368732013.
FIR No. 207/2013, Police Station Uttam Nagar Under sections 376/420/406/506/120-B of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.
State versus Hari Om and another. -:: Page 12
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