Delhi District Court
State vs Amit @ Shri Bhagwan -:: Page 1 Of 10 ::- on 19 August, 2014
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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 : 76 of 2014.
Unique Case ID Number : 02401R0316582014
State versus
Mr. Amit @ Shri Bhagwan
Son of Mr. Om Kar,
Resident of Village & P.O Jhatolha,
District Gurgaon, Haryana.
First Information Report Number : 405/2014.
Police Station Paschim Vihar
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet : 09.07.2014.
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 22.07.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 19.08.2014.
Date of judgment : 19.08.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused Mr.Amit @ Shri Bhagwan has been produced from
judicial custody.
Mr. Sudesh Goyal, counsel for accused.
Prosecutrix in person.
Ms. Shubhra Mehndiratta, counsel for Delhi Commission for
Women.
************************************************************
Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014
FIR No.405/2014, Police Station Paschim Vihar
Under section 376 of the Indian Penal Code.
State versus Amit @ Shri Bhagwan -:: Page 1 of 10 ::-
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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. The charge sheet has been filed against the accused, Mr. Amit @ Shri Bhagwan, by Police Station Paschim Vihar , Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 28.10.2013 and 28.04.2014 at unknown time at Pikaso Hotel, Meera Bagh, the accused committed rape upon pros- ecutrix (name mentioned in file but withheld to protect her identity) under a false promise to marry her.
2. After completion of the investigation, the charge sheet against accused Mr. Amit @ Shri Bhagwan was filed before the Court of the learned Metropolitan Magistrate on 09.07.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Spe- cial Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 22.07.2014.
3. After hearing arguments, charge for offence under section 376 IPC read with section 420 IPC was framed against the accused Mr.Amit @ Shri Bhagwan vide order dated 30.07.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
State versus Amit @ Shri Bhagwan -:: Page 2 of 10 ::-
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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 in the year 2009, she got married with Mr. Pradeep and has one son from the said wedlock. She had taken divorce from Mr. Pradeep in the year 2010 through Panchyat when her son was about six months old. About one year ago, she had met accused Mr.Amit @ Shri Bhagwan while she was working in placement agency in Vikas Puri. Gradually, they developed friendship and started meeting each other. She did not have any physical relations with the accused. Accused Mr.Amit @ Shri Bhagwan who was working in defence services and was staying in Jammu. Whenever, he came to Delhi, he used to meet her. She met the accused lastly on 28.04.2014 in Uttam Nagar, Delhi and thereafter after going to Jammu, the accused started avoiding her. The accused was not picking up her phone or whenever he picked up the phone, he avoided to talk to her. She was very upset and talked to her friends about it. Some of them suggested her to lodge a complaint against the accused. She did not remember the name of the friend who had Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
State versus Amit @ Shri Bhagwan -:: Page 3 of 10 ::-
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suggested her to make a complaint against the accused. Due to wrong advise and at the instance of her well wishers and friends, she had gone to Police Station Paschim Vihar and made a complaint against the accused. She had narrated the same facts to the police which have been told by her today in the Court. Her statement (Ex. PW1/A) was recorded by the police. She was was taken to SGM hospital for her medical examination. She was produced before the learned Metropolitan Magistrate who recorded her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex.PW1/B). She has voluntarily deposed that she had made this statement at the instance of her well wishers, on their wrong advise. The accused has not committed any offence and has not raped her on a false promise of marriage. She did not have any grievance against the accused since he has not committed any offence. She has prayed that the accused may be acquitted.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
8. In her cross examination by the prosecution, the prosecutrix has deposed that she had made a statement before the police in the same manner which she had narrated today in the Court. She had signed the complaint without reading the contents of the same and even the complaint was not read over to her by the police before she made her signatures on the same. She has denied that she had made the complaint before the police on Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
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her own and not at the instance of her well wishers/friends. She has further denied that she had read the contents of the complaint before signing on the same and she was deposing falsely to this effect. She has denied that the accused had committed rape upon her during the period of 28.10.2013 and 28.04.2014 at Pikaso Hotel, Meera Bagh under the false promise to marry her as it is a specifically mentioned in her complaint (Ex. PW1/A). She had stated before the learned Metropolitan Magistrate as she was pressurized by the well wishers to depose in the manner in which she have made her statement. She was told by her well wishers that police would be able to search the accused and arrest him only if she made the allegations leveled by her before the learned Metropolitan Magistrate. She has voluntarily stated that accused did not promise to marry her and they had no physical relations with each other. She denied that she had given statement before the learned Metropolitan Magistrate voluntarily and with her free consent and not at the instance of her well wishers. She admitted that she had told the facts to the doctor at the time of her medical examination. She voluntarily stated that whatever she had stated to the doctor, it was at the instance of her well wishers and friends. She has denied the suggestion that she had given statement before the doctor voluntarily and with her free consent and not at the instance of her well wishers. She has further admitted that the accused was arrested by the police in her presence vide arrest memo (Ex. PW1/C) and the personal search of the accused was conducted vide personal search memo (Ex.
PW1/D). She has denied the suggestion that she was deposing falsely as she had settled the matter with the accused.
Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
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9. In her cross examination by the accused, the prosecutrix has admitted that the accused has not committed any offence. She has admitted that the accused has not raped her on the false pretext of marriage. She has admitted that the accused did not have physical relations with her. She has admitted that the accused is innocent and again prayed that the accused may be acquitted.
10. The prosecutrix, has not deposed an iota of evidence of her being raped and cheated by accused Mr.Amit @ Shri Bhagwan. She has not even mentioned the word "rape" by accused Mr. Mr.Amit @ Shri Bhagwan in her examination in chief nor has deposed anything incriminating against him. In fact, she has deposed that she did not have physical relations with the accused and has not raped her on a false promise of marriage.
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 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 has not supported the prosecution case and is hostile.
12. Statement under section 313 of the Cr.P.C of the accused is Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
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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.
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 the case of the prosecution 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 accused is guilty of raping the prosecutrix on a false pretext of marriage or having any physical relations with the prosecutrix. There is no material on record to suggest that the prosecutrix was ever raped by accused Mr. Mr.Amit @ Shri Bhagwan. No case is made out against the accused Mr. Mr.Amit @ Shri Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
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Bhagwan as there is no incriminating evidence against him. In fact, the prosecutrix has deposed that she did not have any physical relations with accused Mr. Mr.Amit @ Shri Bhagwan and accused has not raped her on a false promise of marriage. She has even prayed for his acquittal
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 is 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. Amit @ Shri Bhagwan is guilty of the charged offences under section 376 read with section 420 of the IPC There is no material on record to show that on 28.10.2013 and 28.04.2014 at unknown time at Pikaso Hotel, Meera Bagh, the accused committed rape upon prosecutrix under the false promise to marry her.
19. From the above discussion, it is clear that the case of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences of rape or cheating. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. In fact, she has deposed that she did not have physical relations with the accused and that he is innocent.
Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
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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 accused Mr Amit @ Shri Bhagwan due to complete lack of evidence for the offences under section 376 IPC read with section 420 of the IPC.
21. Consequently, the accused, Mr. Amit @ Shri Bhagwan hereby acquitted of the charge for the offences under section 376 read IPC read with section 420 of the IPC.
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 or where the prosecutrix is hostile, as in the present case, 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. Here, I would also like to mention that in recent times a new Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
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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 as the prosecutrix retracted and turned hostile. In the circumstances, such a person, an acquitted accused, who has been acquitted honourably, 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.
26. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
27. 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 19th day of August, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 76 of 2014.
Unique Case ID Number : 02401R0316582014 FIR No.405/2014, Police Station Paschim Vihar Under section 376 of the Indian Penal Code.
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