Delhi District Court
State vs Paras & Ors. -:: Page 1 Of 14 on 7 September, 2015
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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 : 119/2014.
Unique Case ID Number : 02401R0516822014.
State
versus
1) Mr. Paras,
Son of Mr. Arvind Singh ,
Resident of RZF-344, Nihal Vihar, Delhi -41
2) Mr. Dheeraj
Son of Mr. Ram Parkash
Resident of RZF-60, Nihal Vihar, Delhi -41
3) Mr. Ram Parkash Bhola (Not Arrested)
Son of Not Known
Resident of RZF-60, Nihal Vihar, Delhi-41
First Information Report Number : 577/2014
Police Station : Nihal Vihar
Under sections 376/342/506/34 of the Indian Penal Code.
Date of filing of the charge sheet before : 09.10.2014
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 28.10.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 07.09.2015.
Date of judgment : 07.09.2015.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the State
is on Child Care Leave.
Mr. Pankaj Kumar Ranga, Substitute Additional Public
Prosecutor for State.
Accused Mr. Paras and Mr. Dheeraj are on bail.
Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar
Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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Mr. Aman Kumar and Mr. Nagender Singh, counsel for
accused Paras.
Mr. Nadeem Qureshi, counsel for accused Dheeraj.
Prosecutrix is present with her counsel Mr. S.K Dhaku.
IO/SI Maya Devi is also present.
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."...........Kurt Cobain **************************************************************
1.Mr. Paras and Mr. Dheeraj, both the accused persons have been charge sheeted by Police Station, Nihal Vihar, Delhi for the offence under sections 376 / 342 / 506 / 34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that accused Paras, on 02.08.2014, in the room adjacent to the room of the prosecutrix (address mentioned in the file and withheld to protect the identity of the prosecutrix), in the Blind Welfare Society, he first of all offered money to the prosecutrix to have physical relations and on her refusal, he committed rape upon the prosecutrix and threatened her of defamation; on 19.08.2014 in the evening, accused Paras again committed rape upon her and then between 20.08.2014 to 25.08.2014 in the office, he committed rape upon her; accused Paras along with co-accused Dheeraj and Ram Parkash Bhola (not arrested) threatened the prosecutrix and did not allow her to go out of the hospital and kept her mobile phone for 15 days at a time. The allegations against co-accused Mr. Dheeraj are that on 15.08.2014 (as mentioned in the statement under section 164 Cr.PC of the prosecutrix) accused Dheeraj Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
State versus Paras & ors. -:: Page 2 of 14::-
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committed rape upon the prosecutrix (address mentioned in the file and withheld to protect the identity of the prosecutrix); accused Dheeraj along with co-accused Paras and Ram Parkash Bhola (not arrested) threatened the prosecutrix and did not allow her to go out of the hospital and kept her mobile phone for 15 days at a time.
2.After completion of the investigation, the charge sheet against accused Mr. Paras and Mr. Dheeraj was filed before the Court of the learned Metropolitan Magistrate on 09.10.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 28.10.2014.
3.On 31.08.2015, IO SI Maya Devi had submitted her report regarding accused Ram Parkash Bhola and submitted on 31.08.2015 and 04.09.2015 that she shall be filing a supplementary chargesheet against accused Ram Parkash Bhola.
4.After hearing arguments, vide order dated 04.09.2015, charge for offence under sections 376, 506, 376, 506/34, 342/34 and 403/34 of the IPC was framed against the accused Mr. Paras to which he pleaded not guilty and claimed trial and charge for the offence under sections 376, 506/34, 342/34 and 403/34 of the IPC was framed against the accused Mr. Dheeraj to which he pleaded not guilty and claimed trial.
5.In order to prove its case, the prosecution has examined the prosecutrix Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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as PW1.
6.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. The prosecutrix is visually impaired. She has stated that she is completely blind and cannot see anything. She has come to the Court on her own as she is able to do her daily activities independently. She has come to the Court today by auto.
She has submitted that she can identify both the accused persons by their voice and cannot identify them by touching their faces. She appeared to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
7.The prosecutrix, as PW1, has deposed that earlier she was residing in Blind Welfare Society at "A" address (address mentioned and withheld to protect the identity of the prosecutrix). She had left this place on 02.09.2014 on lodging of this case and now she was living in rented accommodation since last 4-5 days. In between she was residing at her native place in U.P at "B" address (address mentioned and withheld to protect the identity of the prosecutrix). She used to study and live in Blind Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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Welfare Society as she was doing graduation in Humanities (B.A) having subjects, English, Sanskrit, Hindi and History. Accused Paras used to work in the office of Blind Welfare Society and accused Dheeraj was running the school and also working in a bank. She has identified accused Paras who is present in the Court today and she identified him from his voice. (Accused Paras has been called upto the screen and made to speak a sentence on which the prosecutrix has correctly identified him from the sound of his voice). She has also identified accused Dheeraj who is present in the Court today and she identified him from his voice. (Accused Dheeraj has been called upto the screen and made to speak a sentence on which the prosecutrix has correctly identified him from the sound of his voice). She was having a love affair with accused Paras. She asked accused Dheeraj to get her married with accused Paras. Accused Dheeraj scolded her in front of everyone in the office and told her that she should study and get a job and then marry a good man and she had not come there to do these things i.e. having affair with accused Paras and wanting to marry him. Accused Paras had told her that she should also study first and then marry him but she was in a hurry to marry him. Therefore, out of anger, as accused Dheeraj had scolded her and as accused Paras did not want to marry her immediately, she had lodged the present case against both of them. Out of anger, as accused Dheeraj had scolded her, she also implicated his father. Neither accused Paras nor Dheeraj have raped her, threatened her, illegally confined her or misappropriated her property. Out of anger, she had made the complaint (Ex.PW1/A). She had got married with accused Paras on 01.10.2014 in Arya Samaj Mandir, THC, Delhi Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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(Mark A). She has prayed that both the accused persons namely Paras and Dheeraj may be acquitted as they have not committed any offence against her .
8.As the prosecutrix was hostile and had resiled from her earlier statement, the Substitute Additional Public Prosecutor has cross-examined her.
9.In her cross examination by the Substitute Additional Public Prosecutor for State, the prosecutrix has admitted that she was produced by the police before the learned Metropolitan Magistrate in Tis Hazari Courts, Delhi and she has recorded her statement. Her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C) (Ex.
PW1/B). She has admitted that she had told the police in her complaint (Ex. PW1/A) and her statement under section 164 Cr.PC (Ex. PW1/B) that accused Paras and Dheeraj had committed rape upon her, threatened her, illegally confined her and misappropriated her property i.e mobile phone. She has voluntarily stated that she had so stated before the police and the learned Metropolitan Magistrate out of anger as accused Dheeraj had scolded her and accused Paras did not want to marry her immediately. She has not shown the place of incident to the police. She has denied that she has shown the place of the incident to the police and the site plan (Mark B) was prepared at her instance. She has admitted that she was taken to Lady Harding Hospital by the police for her medical examination and she was gynecologically examined also vide her MLC (Ex. PW1/C) and had told the doctor that she had been raped by accused Paras and Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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Dheeraj as well as sexually assaulted by father of Dheeraj. She has voluntarily stated that she had so stated to the doctor out of anger and actually, both accused Paras and Dheeraj have not committed any offence and not raped her. She has admitted that she was aware that accused Paras and Dheeraj were arrested in the present case on the allegations levelled by her in the complaint (Ex. PW1/A) and her statement under section 164 Cr.P.C. (Ex. PW1/B). She has voluntarily stated that the allegations were made out of anger and both the accused are innocent. She has denied that she had made her complaint (Ex. PW1/A) and statement under section 164 Cr.P.C. (Ex. PW1/B) voluntarily and based on true and correct facts. She has denied that as she has now married accused Paras, she was deposing falsely against both the accused persons and has been won over by the accused persons and have compromised the case with accused persons as she had got married with accused Paras. She has denied that she was deposing falsely.
10.She has also been cross examined on behalf of accused Mr. Paras. She has admitted that accused Paras has not committed any offence against her and accused Paras has not raped her nor threatened her nor illegally confined her nor misappropriated her mobile phone. She has admitted that during the hearing of bail application of accused Paras, she had appeared before the Court and made a statement on 20.09.2014 that she had lodged the FIR and made her statement under section 164 Cr.P.C. under the pressure of the members of Blind Welfare Society and out of anger and during the hearing of bail application of accused Dheeraj, she had Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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appeared before the Court and made a statement on 23.09.2014 that she had got him implicated and arrested in anger and he did not have any physical relations with her. She has further deposed that she has married accused Paras on 01.10.2014 voluntarily and with her free consent and does not have any grievance against accused Paras. She has again prayed that accused Paras may be acquitted as he is innocent and has not committed any offence.
11.She has also been cross examined on behalf of accused Mr. Dheeraj.
She has admitted that accused Dheeraj has not committed any offence against her and accused Dheeraj has not raped her nor threatened her nor illegally confined her nor misappropriated her mobile phone. She has admitted that during the hearing of bail application of accused Paras, she had appeared before the Court and made a statement on 20.09.2014 that she had lodged the FIR and made her statement under section 164 Cr.P.C. under the pressure of the members of Blind Welfare Society and out of anger. She has further admitted that during the hearing of bail application of accused Dheeraj, she had appeared before the Court and made a statement on 23.09.2014 that she had got him implicated and arrested in anger and he did not have any physical relations with her. She has admitted that she does not have any grievance against accused Dheeraj. She has again prayed that accused Dheeraj may be acquitted as he is innocent and has not committed any offence.
12.In the circumstances, as PW1, the prosecutrix, who is the star witness, Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
State versus Paras & ors. -:: Page 8 of 14::-
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has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused Paras and accused Dheeraj and has not deposed anything incriminating against both 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 formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself, the most material witness, has not supported the prosecution case and are hostile.
13.Statements under section 313 of the Cr.P.C of accused Mr. Paras and Mr. Dheeraj are 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.
14.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.
15.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 the case of the prosecution cannot be treated as trustworthy and reliable as the prosecutrix has retracted and resiled from her earlier statement. Reliance can also be placed upon the judgment reported as Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
State versus Paras & ors. -:: Page 9 of 14::-
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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."
16.In the light of the aforesaid nature of deposition of the prosecutrix, Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487
17.Consequently, no inference can be drawn that accused Paras on 02.08.2014 in the room adjacent to the room of the prosecutrix, in the Blind Welfare Society, he first of all, offered money to the prosecutrix to have physical relations and on her refusal, he committed rape upon the prosecutrix and threatened her of defamation; on 19.08.2014 in the evening, accused Paras again committed rape upon her and then between 20.08.2014 to 25.08.2014 in the office, he committed rape upon her; accused Paras along with co-accused Dheeraj and Ram Parkash Bhola (not arrested) threatened the prosecutrix and did not allow her to go out of the hospital and kept her mobile phone for 15 days at a time. Also, no inference can be drawn that accused Dheeraj on 15.08.2014 committed rape upon the prosecutrix; accused Dheeraj along with co-accused Paras and Ram Parkash Bhola (not arrested) threatened the prosecutrix and did not allow her to go out of the hospital and kept her mobile phone for 15 days at a time.
Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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18. 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 Paras and accused Dheeraj are innocent and have not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
19.The prosecutrix has deposed that both the accused persons have not committed any offence. Accused Paras and accused Dheeraj had not raped her nor threatened her nor illegally confined her nor misappropriated her mobile phone. She has deposed that she had lodged the complaint and made her statement under section 164 of the Cr.P.C. under the pressure of the members of Blind Welfare Society and out of anger. She has deposed that both the accused persons are innocent and has also prayed that both the accused persons may be acquitted as they have not committed any offence.
20.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences of rape, threat, illegal confinement and misappropriation of mobile phone. The evidence of the prosecutrix makes it highly improbable that such incidents ever took place. She has categorically deposed that both the accused persons have not raped her nor Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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threatened her nor illegally confined her nor misappropriate her mobile phone. She has even prayed for their acquittal.
21.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. Paras for the offences under sections 376, 506, 376, 506/34, 342/34 and 403/34 IPC and accused Mr. Dheeraj for the offences under sections 376, 506/34, 342/34 and 403/34 IPC.
22.Consequently, accused Mr. Paras is hereby acquitted for the offence under sections 376, 506, 376, 506/34, 342/34 and 403/34 IPC and accused Mr. Dheeraj is hereby acquitted of the charge for the offences under sections 376, 506/34, 342/34 and 403/34 IPC.
23.Compliance of section 437-A Cr.P.C. is made in the order sheet.
24.Case property be destroyed after expiry of period of limitation of appeal.
25.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 Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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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.
26.Here, I would also like to mention that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused persons have been acquitted of the charge of rape, after trial, as the prosecutrix retracted and turned hostile. In the circumstances, such a person, an acquitted accused, who have remained in custody for a considerable period during inquiry, investigation and trial and who has been acquitted honourably after the prosecutrix has deposed that he has not raped her nor threatened her nor caused hurt to her, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.
27.It cannot be ignored that the accused persons namely Paras and Dheeraj, due to this case which has ultimately ended in their acquittal have also remained in custody for a considerable period, may have suffered humiliation, trauma, distress and misery besides the expenses of the litigation. Their plight may also continue after their acquittal as their implication may have caused an uproar in society but their acquittal may not even be noticed. They will continue to suffer the stigma of being a rape case accused. It may not be possible to restore their dignity and honour nor Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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compensate them for the humiliation, misery, distress and monetary loss. However, their acquittal may give them some solace. They may also file a case for damages against the prosecutrix, if advised.
28.One copy of the judgment be given to the Substitute Additional Public Prosecutor, as requested.
29.After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 07th day of September, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 119 of 2014.
Unique Case ID Number : 02401R0516822014.
FIR No. 577/2014, Police Station Nihal Vihar Under sections 376 / 342 / 506/34 of the Indian Penal Code.
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