Delhi District Court
State vs Bal Chand Baitha -:: Page 1 Of 14 ::- on 8 December, 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 : 68/2015.
Unique Case ID Number : 02401R0447772015
State
versus
Mr. Bal Chand Baitha,
Son of Mr. Lachchu Baitha ,
Resident of Tagaria Post Garhgaon, P.S. Bero,
District Ranchi, Jharkhand.
First Information Report Number : 317/2013
Police Station : Moti Nagar
Under sections 376, 370, 328, 506 and 174 A of the Indian Penal Code.
Date of filing of the supplementary : 27.05.2015
charge sheet before the Court of the
Metropolitan Magistrate
Date of receipt of file after committal : 02.07.2015.
Arguments concluded on : 08.12.2015.
Date of judgment : 08.12.2015.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the
State.
Accused has been produced from judicial custody.
Mr.Pinki Ranjan Chatterjee, Amicus Curaie for accused.
Prosecutrix is present.
IO SI Sushma is present.
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Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar
Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code.
State versus Bal Chand Baitha -:: Page 1 of 14 ::-
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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. Bal Chand Baitha, the accused has been charge sheeted by Police Station, Ranhola, Delhi vide supplementary chargesheet for the offence under sections 376, 370, 328 and 506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that in the month of March-April, 2013, 10-15 days after Holi at House No. B-542, Sudershan Park, New Delhi, he along with co accused Prem Chand Gope (facing trial in main chargesheet) handed over the prosecutrix (name mentioned in file and withheld to protect the identity of the prosecutrix) to co-accused Rakesh Kumar (facing trial in main chargesheet) by practicing fraud or deception for the purpose of exploitation of the prosecutrix; in the month of March-April, 2013, 10-15 days after Holi after 7.00pm at House No. B-542, Sudershan Park, New Delhi, accused Bal Chand Baitha along with accused Rakesh Kumar, Prem Chand Gope (both are facing trial in main chargesheet) and Vinod Tyagi (P.O) administered some stupefying or intoxicating material mixed in a cold drink to prosecutrix with intent to commit the offenc of rape on her and thereafter in furtherance of their common intention he along with other co-accused persons committed rape upon the prosecutrix; on the above mentioned date, time and place, after the Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 2 of 14 ::-
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commission of rape, he along with other accused persons threatened the prosecutrix with dire consequences, if she disclosed the incident of rape to anyone.
2. After completion of the investigation, the supplementary charge sheet against accused Mr. Bal Chand Baitha was filed before the Court of the learned Metropolitan Magistrate on 27.05.2015 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 02.07.2015.
3. Vide order dated 28.07.2015, the supplementary chargesheet of accused Bal Chand Baitha was separated from the main file.
4. After hearing arguments, vide order dated 25.08.2015, charge for offence under sections 370, 376D, 506, 328 and 34 of the IPC was framed against the accused Mr. Bal Chand Baitha to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined the prosecutrix 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 Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 3 of 14 ::-
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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. Preliminary inquiries have been made from the prosecutrix and it appears that she is well oriented and is capable of giving rational answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
7. It was pointed out by the Additional Public Prosecutor as well as the Amicus Curaie that all the original documents are in the main charge sheet titled as State versus Rakesh, SC No.01/2014. The main charge sheet had been put by the Ahlmad. Both the Additional Public Prosecutor and Amicus Curiae had submitted that the copies of the documents are annexed in the supplementary charge sheet and same may be exhibited.
8. The prosecutrix, as PW1, has deposed that she had come with accused Bal Chand Baitha and Prem Chand Gope from her native village to Delhi in the year, 2013 after 10-15 days of Holi by train. They went to B-542, Sudershan Park, Moti Nagar where they met accused Rakesh. They had reached the office of accused Rakesh which was located at B-542, Sudershan Park, Moti Nagar in the night. On the next night, she was raped by accused Bal Chand Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 4 of 14 ::-
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Baitha, Prem Chand Gope and Rakesh. Even on the night they had reached the office of Rakesh, accused Bal Chand Baitha and Prem Chand had touched her in appropriately. (Ched Chaad kari thi). She had objected on both the nights. She had fever for two days. Thereafter, she was sent for work as a maid to Chandigarh where she was taken by bus by Prem Chand Gope. She can identify accused Bal Chand Baitha, if shown to her. The witness had seen accused Bal Chand Baitha through the screen and thereafter she deposed that the man who is sitting in the Court with the police constable in the last row of the chairs is not accused Bal Chand Baitha who had raped her along with others. She has not identified accused Bal Chand Baitha. Accused Bal Chand Baitha who had brought her from her village to Delhi and raped her in the office of accused Rakesh was young, was aged about 30-32 years and his face was round. Height was similar to the man who is in the Court today. He was fair and had a receeding hair line. He had a mark on his forehead may be on the left or right side. After about six months of the incident, may be on 01.09.2013, she had given a complaint to the police. The complaint given by her is already exhibited as Ex.PW1/A in the main charge sheet. Copy of the same in the present supplementary charge sheet is exhibited as Ex.PW1/A. She was medically examined in DDU Hospital vide MLC (Ex.PW1/B). She had refused her gynecological examination. She had shown the place of incident and the site plan (Ex.PW1/C) was prepared at her instance. She was produced before the Court of learned Metropolitan Magistrate at Tis Hazari Courts and her statement Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 5 of 14 ::-
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under section 164 Cr.P.C. (Ex.PW1/D) was recorded. She did not want to say anything else.
9. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
10. In her cross examination by the Additional Public Prosecutor for State, she has admitted that accused Bal Chand Baitha belongs to District Jharkhand but she did not know his address. Accused did not belong to her native village. She knew only Prem Chand Gope as he belongs to her neighbouring village. She has admitted that she had stated in her complaint (Ex.PW1/A) that accused Bal Chand Baitha is aged about 3035 years and belongs to District Gumla, Jharkhand. She has denied that the accused who is present in the Court today had brought her from the native village to Delhi and had raped her along with others at Delhi. The incident occurred long ago and she did not remember the details. She did not know the man who has been produced in this case as accused. She has denied that the accused who is present in the Court today is the same Bal Chand Baitha, who had raped her. She has denied that as the accused who is present in the Court today has grown his beard, she can not identify him correctly. She has denied that she has deliberately not identified accused Bal Chand Baitha who is present in the Court today as she has been won over by him. She has Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 6 of 14 ::-
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denied that she has deliberately not identified accused Bal Chand Baitha who is present in the Court today as she has compromised with him and taken compensation from him. She has denied that she is deposing falsely.
11. She has also been cross examined on behalf of accused. She has admitted that the man who has been produced as accused Bal Chand Baitha in present case is not the same Bal Chand Baitha who along with accused Prem Chand Gope had brought her to Delhi to the office of accused Rakesh and had raped her along with Prem Chand Gope and Rakesh. She has admitted that the man who is present in the Court today is innocent and has not committed any offence against her.
12.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 identified the accused nor assigned any criminal role to him and has not deposed anything incriminating the accused, the prosecution evidence is closed, declining the request of the 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 is hostile.
Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 7 of 14 ::-
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13.Statement under section 313 of the Cr.P.C. of accused Mr. Bal Chand Baitha is dispensed with as there is nothing incriminating against him 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. She has failed to identify the accused before the Court. 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."
16. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 8 of 14 ::-
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17. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
18. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
19. It can be seen that the prosecutrix has although ostensibly supported the prosecution case but she has not identified the accused. In fact, she has categorically deposed that the man who has been produced as accused Bal Chand Baitha in present case is not the same Bal Chand Baitha who along with accused Prem Chand Gope had brought her to Delhi to the office of accused Rakesh and had raped her along with Prem Chand Gope and Rakesh. She has admitted that the man who is present in the Court Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code. State versus Bal Chand Baitha -:: Page 9 of 14 ::-
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today is innocent and has not committed any offence againsther. She has stated that the accused Bal Chand Baitha who had brought her from her village to Delhi and raped her in the office of accused Rakesh was young and was aged about 30-32 years and his face was round. Height was similar to the man who is in the Court today. He was fair and had a reseeding hair line. He had a mark on his forehead may be on the left or right side. When the prosecutrix has deposed she was not raped by accused wo is present in the Court, then the case becomes unworthy of credence and unreliable.
20. The prosecution has failed to furnish any explanation in respect of the non-identification of the accused by the prosecutrix. The fact that the accused has not been identified by the prosecutrix strikes at the very root of the prosecution story making it unbelievable and improbable. In fact, what emerges from the evidence of the prosecutrix is that there appears to be a strong possibility of false implication of the accused.
21.Therefore, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has not identified him as the culprit. No inference can be drawn that the accused is guilty of the charged offence under sections 370, 376D, 328, 506 and 34 of the IPC as the prosecutrix has not identified the accused Bal Chand Baitha and stated that she was not raped by him. There is no material on record that the prosecutrix was raped by the accused.
Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code.
State versus Bal Chand Baitha -:: Page 10 of
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22.Consequently, no inference can be drawn that accused Bal Chand Baitha (accused facing trial in this case and produced from judicial custody) in the month of March-April, 2013, 10-15 days after Holi at House No. B-542, Sudershan Park, New Delhi, he along with co accused Prem Chand Gope (facing trial in the main file) handed over the prosecutrix to co-accused Rakesh Kumar (facing trial in the main file) by practicing fraud or deception for the purpose of exploitation of the prosecutrix; in the month of March-April, 2013, 10-15 days after Holi after 7.00pm at House No. B-542, Sudershan Park, New Delhi, accused Bal Chand Baitha along with accused Rakesh Kumar, Prem Chand Gope (both are facing trial in the main file) and Vinod Tyagi (P.O) administered some stupefying or intoxicating material mixed in a cold drink to prosecutrix with intent to commit the offenc of rape on her and thereafter in furtherance of their common intention he along with other co- accused persons committed rape upon the prosecutrix; after the commission of rape, he along with other accused persons threatened the prosecutrix with dire consequences, if she disclosed the incident of rape to anyone.
23. 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 Mr. Bal Chand Baitha who is present in the Court has not raped her nor committed any offence against her. She has not Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code.
State versus Bal Chand Baitha -:: Page 11 of
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identified the accused. She has given a different description of the culprit Bal Chand Baitha.
24. 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 offence of human trafficking, rape and threat. The evidence of the prosecutrix makes it highly improbable that the accused who is present in the Court has committed the offences. She has not identified the accused. She has admitted that the man who is present in the Court today is innocent and has not committed any offence against her.
25.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.Bal Chand Baitha for the offence under sections 370, 376D, 328, 506 and 34 of the IPC as the prosecution has failed to prove that the accused has committed the offence of human trafficking, rape and threat.
26. Consequently, accused Mr.Bal Chand Baitha is hereby acquitted for the offence under sections 370, 376D, 328, 506 and 34 of the IPC.
27.Compliance of section 437-A Cr.P.C. is made in the order sheet.
28.Case property be destroyed after expiry of period of limitation of Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code.
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appeal.
29.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.
30. Here, I would also like to mention, once again as already observed in several other similar cases in which the prosecutrix has turned hostile, 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 has been acquitted of the charge of rape and other offences, after trial, as the prosecutrix turned hostile and failed to identify him. In the circumstances, such a person, an acquitted accused, who has 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 and she does not identify him as the culprit, should he now be addressed as a Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code.
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rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.
31. Before parting, I would also like to observe that Mr.Pinki Ranjan Chatterjee, advocate, who has been appointed as Amicus Curiae in this case, made very sincere and laborious efforts in this case with his very able assistance and regular appearance, thereby enabling the Court to dispose the matter expeditiously.
32.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
33.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 08th day of December, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 68 of 2015.
Unique Case ID Number : 02401R0447772015.
FIR No. 317/2013, Police Station Moti Nagar Under sections 376 ,370, 328, 506 and 174 A of the Indian Penal Code.
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