Delhi District Court
State vs 1. Mr. Rajesh Kumar on 9 April, 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 : 20/2014.
Unique Case ID Number : 02401R0039422014.
State versus 1. Mr. Rajesh Kumar
Son of Mr. Babu Lal
Resident of Near Munsif Court Ward no. 12,
Kagdiwara Mohalla, Tizara, District Alwar,
Rajasthan.
2. Mr. Babu Lal
Son of Mr. Puran Chand.
Resident of Near Munsif Court Ward no. 12,
Kagdiwara Mohalla, Tizara, District Alwar,
Rajasthan.
First Information Report Number : 96/2011
Police Station Ranhola
Under sections 406/498A/376/511/34 of the Indian Penal Code.
Date of filing of the charge sheet before : 22.01.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 10.02.2014.
Arguments concluded on : 09.04.2014.
Date of judgment : 09.04.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Both accused persons are present on bail with counsel,
Mr.Rajesh Kumar Sharma.
Prosecutrix is present.
Ms.Shubra Mendiratta and Ms. Poonam Sharma, counsel for
the Delhi Commission for Women.
IO/SI Ram Bhau is present.
Sessions Case Number : 20 of 2014
Unique Case ID Number : 02401R0039422014
FIR No. 96/2011, Police Station Ranhola
Under sections 406/498A/376/511/34 of the Indian Penal Code.
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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. Rajesh Kumar and Mr.Babu Lal, the accused persons, have been charge sheeted by Police Station Ranhola, Delhi for the offence under sections 406/498A/376/511/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that complainant/prosecutrix (name withheld to protect her identity) got married with accused Mr.Rajesh Kumar on 28.03.2010 at Delhi and after marriage accused Mr.Rajesh Kumar, being husband of the complainant, along with co-accused Babu Lal, Father in law of the prosecutrix, subjected the prosecutrix to cruelty for demand of dowry; and Mr. Babu Lal, the accused person, on 02.04.2010 at about 9.00 p.m in his house at Ward no. 12, Kagdiwara Mohalla, Tazara, District Alwar, Rajashthan, attempted to commit rape upon prosecutrix and threatened the prosecutrix to kill her if she disclosed the said incident to anyone
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 22.01.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 10.02.2014.
3. After hearing arguments, charge for offence under section 498A/34 IPC was framed against the accused Mr. Rajesh Kumar vide order dated 28.02.2014 to which he pleaded not guilty and claimed trial; and charge for offence under sections 498A/34 IPC, under section 376/511 IPC and section 506 IPC was framed against the accused Mr. Babu Lal vide order dated 28.02.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the 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 married to accused Mr. Rajesh Kumar on 28.03.2010 and accused Mr.Babu Lal is the father of accused Rajesh Kumar. She has deposed that she had already taken Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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a decree of divorce by mutual consent from the Court of Ms. Sujata Kohli, learned Additional District Judge, West, Tis Hazari Courts, Delhi and the marriage between herself and accused Mr.Rajesh Kumar has been dissolved on 21.08.2012. Copies of the decree of divorce (Ex. PW1/A), the joint statement is (Ex.PW1/B) and the judgment dated 21.08.2012 (Ex.PW1/C) are proved. The certified copy of the agreement cum settlement deed which was filed jointly by herself and accused Mr.Rajesh Kumar in the first motion petition (Ex. PW1/D) is also proved. She has also received an alimony of Rs. 6 lacs from accused Mr.Rajesh Kumar. The dispute between them was amicably resolved and settlement was effected between them in pursuance of which they have taken divorce by mutual consent. She has further deposed that due to temperamental differences they could not continue their marriage and due to misunderstanding and wrong advice of her well wishers she had made a complaint (Ex.PW1/E) . She does not have any grievance against both the accused persons. She has prayed that the accused persons may be acquitted.
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 State, the prosecutrix has deposed that it is correct that she had written in the complaint that both the accused persons had treated with her cruelty for dowry. She has admitted that she had written in her complaint that accused Mr.Babu Lal had attempted to rape her on 02.04.2010 at 9.00 pm in her Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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matrimonial house at Ward no. 12, Kagediwara Mohalla, Tazara, District Alwar (Rajasthan). She has voluntarily stated that it was only due to some misunderstanding and due to wrong advise of her well wishers and the accused are innocent. She has admitted that accused were formally arrested by the police and were released on anticipatory bail. She has denied that accused Mr.Babu Lal had attempted to rape her on 02.04.2010 at 9.00 pm in her matrimonial house at Ward no. 12, Kagediwara Mohalla, Tazara, District Alwar (Rajasthan) and both the accused persons had treated with her cruelty for dowry. She has further denied that she had made the complaint to the police against the accused voluntarily and not due to wrong advise or at the instance of some well wishers and denied that she had forgiven the accused as she had taken a divorce by mutual consent from accused Mr.Rajesh Kumar and due to this reason she was not deposing against them. She has denied that she was deposing falsely as she have been won over by the accused.
9. She has also been cross examined on behalf of accused persons wherein she has admitted that the accused persons have not committed any offence and accused Babu Lal has not raped her. She has further admitted that both the accused persons have not treated her with cruelty for dowry and she had filed the complaint (Ex.PW1/E) to the police due to some misunderstanding and due to wrong advice of her well wishers. She has again prayed that the accused persons may be acquitted.
10. The prosecutrix, has not deposed an iota of evidence of her being raped at all. She has not even mentioned the word "rape" or being treated with Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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cruelty for dowry in her evidence nor has deposed anything incriminating against both the accused persons regarding his raping her or treating her with cruelty for dowry.
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 persons, 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. Statements under section313 of the Cr.P.C. of both the accused persons 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.
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 Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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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 persons are guilty of raping the prosecutrix or treating her with cruelty for dowry. There is no material on record to suggest that accused Mr.Babu lal attempted to rape the prosecutrix or that accused Mr.Babu Lal and accused Mr.Rajesh Kumar treated her with cruelty for dowry. No case is made out against the accused persons 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 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.
Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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18. Consequently, no inference can be drawn that accused Mr. Rajesh Kumar is guilty of the charged offence under section 498A/34 IPC. There is no material on record to show that after marriage, accused Mr.Rajesh Kumar, being husband of the complainant/prosecutrix, along with co-accused Mr.Babu Lal, father in law of the prosecutrix, subjected the prosecutrix to cruelty for demand of dowry; and accused Mr.Babu Lal attempted to rape her or threatened to kill her on 02.04.2010 at about 9.00 p.m in his house at Ward no. 12, Kagdiwara Mohalla, Tazara, District Alwar, Rajasthan. In fact, it is re- vealed from the evidence of the prosecutrix that she was neither treated with cruelty for dowry by both the accused persons nor accused Mr.Babu Lal at- tempted to rape her nor threatened to kill her.
19. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish treatment with cruelty for dowry, attempted rape and threat. 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 person, Mr. Rajesh Kumar, for the offence under section 498A/34 IPC and Mr. Babu Lal, for the offence under sections 498A/34 IPC, under sections 376/511 IPC and under section 506 IPC.
21. Consequently, accused Mr. Rajesh Kumar is hereby acquitted Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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of the charge for the offence under section 498A/34 IPC and Mr. Babu Lal for the offence under sections 498A/34 IPC, under sections 376/511 IPC and under section 506 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, 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.
Announced in the open Court (NIVEDITA ANIL SHARMA) Sessions Case Number : 20 of 2014 Unique Case ID Number : 02401R0039422014 FIR No. 96/2011, Police Station Ranhola Under sections 406/498A/376/511/34 of the Indian Penal Code.
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on this 09th day of April, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
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