Delhi District Court
State vs Mr. Yogesh Gupta & Anr. -:: Page 1 Of 13 ::- on 9 June, 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 : 146 of 2013.
Unique Case ID Number : 02401R0513102013.
State
versus
1. Mr. Yogesh Gupta
Son of Mr.Murlidhar Gupta
Resident of A-10/11, Om Vihar, Phase-1/A,
Uttam Nagar, Delhi.
2. Mr.Harpreet Singh @ Monu,
Son of Mr. Surinder Singh,
Resident of A-19, Hastsal Vihar, Uttam Nagar, Delhi.
First Information Report Number : 393/2013.
Police Station Uttam Nagar.
Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian
Penal Code.
Date of filing of the charge sheet before : 07.10.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file in this Court : 23.10.2013.
{ASJ (SFTC)-01, West, THC, Delhi}
Arguments concluded on : 09.06.2014
Date of judgment : 09.06.2014
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Both accused persons are present on bail.
Mr. C.L.Sharma, counsel for accused Mr.Yogesh Gupta.
Mr. K.Singhal, counsel for accused Mr.Harpreet Singh.
Prosecutrix is present with her counsel Mr. Javed Ali
Choudhary.
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Sessions Case Number : 146 of 2013
Unique Case ID Number : 02401R0513102013
FIR No. 393/2013, Police Station Uttam Nagar
Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code.
State versus Mr. Yogesh Gupta & anr. -:: Page 1 of 13 ::-
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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. Yogesh Gupta and Mr. Harpreet Singh @ Monu, both the accused persons, have been charge sheeted by Police Station Uttam Nagar, Delhi for the offences under sections 420/342/506/34 and 376/511/34 and 354/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that between the period of 08.03.2013 and 26.06.2013, both the accused Mr.Yogesh Gupta and Mr.Harpreet Singh @ Monu in furtherance of their common intention dishonestly induced the complainant/prosecutrix (name withheld to protect her identity) to purchase a property bearing no. D-88 A, Block D, Hastsal Vihar, Uttam Nagar, Delhi within the jurisdiction of Police Station Uttam Nagar and received a sum of Rs.4 Lacs in total in different installments and cheated her by not executing the documents and selling the property to someone else. On 12.06.2013 at 7.30 pm at A-3/76 Dal Mill Road, Uttam Nagar, Delhi, both the accused persons in furtherance of their common intention attempted to commit rape on the prosecutrix and on the above said date, time and place, both the accused persons threatened the prosecutrix to kill her and her family members, if she reported the matter to the police.
Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 2 of 13 ::-
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2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 07.10.2013 and after its committal, vide order dated 23.10.2013 of the learned District and Sessions Judge, West, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, THC, Delhi.
3. After hearing arguments, charge for offence under sections 420/34, 376/511/34 and 506/34 of the IPC was framed against both the accused persons vide order dated 30.10.2013 to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined 11 witnesses. Mr. R.S.Yadav from MTNL, as PW1; Mr. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd., as the PW2; Ms. Collette Rashmi Kujur, learned Metropolitan Magistrate, as the PW3; Mr. Purushotam Pathak, learned Secretary District Legal Services Authority as PW4; Mr. Rajeev Sharda, Alternate Nodal Officer, Reliance Communications Ltd., as the PW5; HC Satyapal, the Duty Officer, as PW6; Mr. Vinod Kumar, Nodal Officer, MTNL, as PW7; Mr. Shishir Malhotra, Nodal Officer, Aircel Ltd., as PW8; the prosecutrix as PW9 and PW11, Mr.Israr Babu, Alternate Nodal Officer, Vodaphone Mobile Services Ltd., as PW10 .
5. The prosecutrix who had been partly examined as PW9 was examined further as PW11 inadvertently instead of as PW9.
Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 3 of 13 ::-
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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.
7. The prosecutrix, as PW9, has deposed that her father namely Mr. Satpal Goel had purchased the abovesaid flat from accused Mr.Harpreet Singh @ Monu in Feb.,2013 for Rs. 13 lacs where they had shifted on 16.04.2013. She wanted to purchase another flat and accused Mr.Harpreet Singh telephoned her in the month of March, 2013 telling me that if she wanted to purchase another flat, his friend who was a builder was selling the same at a very low price. On 08.03.2013, she along with her younger brother Amit went to the office of accused Mr.Harpreet Singh @ Monu which was in the name of Sukhmani properties located at Dal Mill Road, Uttam Nagar where one Mr. Yogesh Gupta and accused Harpreet Singh @Monu were present. Both the accused persons took them to Hastsal Vihar to show them the flat which was measuring 55 square yards. She liked the flat and agreed to purchase the same for Rs. 11,40,000/-. On the same day, she had given earnest money (Byana) of Rs. 1 Lac to accused Mr.Harpreet Singh @ Monu. Even 4-5 days prior to 08.03.2013, she had seen the said flat which was shown to her by accused Mr.Harpreet Singh @ Monu. She was told by accused Mr.Harpreet Singh @ Monu that the said Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 4 of 13 ::-
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flat belonged to accused Mr.Yogesh Gupta. On 08.03.2013 when she had paid the earnest money, sale and purchase agreement (Ex.PW9/B) was executed between accused Mr.Yogesh Gupta and her and one receipt with regard to the payment of Rs. 1 Lac was issued to her (Ex.PW9/A). Accused Mr.Harpreet Singh @ Monu told her that after about 2-2 ½ months, he would get the abovesaid flat sold at a profit of Rs. 2 Lacs or Rs. 2 ½ lacs, so for that she need not make further payment. Accused Mr.Harpreet Singh @ Monu had shown her the first floor of the flat which she wanted to purchase.
8. As PW11, the prosecutrix has further deposed that in the year 2013, accused Mr.Yogesh Gupta and Mr.Harpreet Singh @ Monu offered her to purchase the property bearing no. D-88A, Block- D, Hastsaal Vihar, Uttam Nagar measuring about 50 square yards for Rs.11,40,000/-. On 08.03.2013 she entered into contract with both the accused persons and she had given Rs. 4 lacs in different installments to both the accused persons for the purchase of the said property as a part payment. However, both the accused persons cheated her by not executing the documents and selling the property to someone else. She had lodged the complaint (Ex.PW11/A) against the accused persons. Now she has compounded the matter under section 420/34 IPC with the accused persons and she seeks the permission of this Hon'ble Court for compounding the offence under sections 420/34 of the IPC. Her application for compounding the offence under section 420/34 IPC is Ex.PW11/B. The settlement agreement between her and both the accused persons is Ex. PW11/C. Her affidavit is Ex.PW11/D. The affidavit of accused Mr.Yogesh Gupta is Ex.PW11/E. The affidavit of Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 5 of 13 ::-
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accused Harpreet Singh is Ex.PW11/F. It has been agreed between them that the accused persons shall pay a total amount of Rs. 5,50,000/- to her as full and final settlement of her claim, out of which Rs. 2 lacs have already been given to her on 05.06.2014. Today the accused persons have handed over the remaining balance of Rs. 3, 50,000/- to her vide demand draft of Rs. 3 lacs, copy of which is Ex.PW11/G and cash amount of Rs.50,000/- which she has accepted. She does not have any grievance now against both the accused persons in respect of the offence under section 420/34 IPC and she has prayed that the same may be permitted to be compounded.
9. As regards the offences under sections 376/511 IPC and 506/34 IPC, she has to say that on 12.06.2013 at about 7.30 pm, she had gone to the office of accused Mr.Harpreet Singh at A-3/76, Dalmill Road, Uttam Nagar Delhi to discuss the issue of the monetary dispute with both the accused persons. However, the matter was not sorted out on that day. She was quite upset and discussed the matter with few friends and well wishers who advised her to lodge a complaint against both the accused persons. Thereafter, she went to one typist whose name she did not remember and at the instance of her well wishers, she got complaint (Ex.PW11/A) typed by him. Without reading the contents of Ex.PW11/A she put her signatures at point A. She was produced before learned Metropolitan Magistrate for her statement and her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) was recorded. She had given her statement before learned Metropolitan Magistrate under the pressure of her well wishers. Her statement before learned Metropolitan Magistrate is Ex. PW11/H. The proceedings under section 164 Cr.P.C. have already Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 6 of 13 ::-
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been exhibited as Ex.PW3/A. She has no grievances against both the accused persons. Both the accused persons have not committed the offence of attempt of rape against her nor they threatened her on 12.06.2013. She has prayed that both the accused persons may be acquitted.
10. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
11. In her cross examination by the Additional Public Prosecutor, the prosecutrix, has deposed that she had not stated in her complaint regarding the contents from point A to A1. She had not told the same to the typist and without reading the contents of the Ex. PW11/A, she put her signatures at point A. She was confronted with Ex.PW11/A from point A to A1 where it is so recorded. She has denied that whatever she had narrated before the typist, same was typed and after going through the contents of the same, she put her signatures thereon. She has denied that she made her statement before learned Metropolitan Magistrate under section 164 Cr.P.C. voluntarily and not under the pressure of any well wishers. She has denied that on 12.06.2013 at about 7.30 pm at A3/76 Dalmill Road, Uttam Nagar, Delhi both the accused persons attempted to commit rape upon her and threaten to kill her and her family members, if she reported the matter to the police. She has denied that she is deposing falsely and not supporting the prosecution case as she have made compromise with both the accused persons. She again prayed that both the accused persons may be acquitted.
12. In her cross examination by the counsel for both the accused, Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 7 of 13 ::-
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the prosecutrix, has admitted that both the accused have neither attempted to rape her nor threatened her. She admitted that they are innocent. She again prayed that they may be acquitted.
13. The prosecutrix, has not deposed an iota of evidence of the accused persons attempting to rape her or her being threatened by them. She has not deposed anything incriminating against both the accused. She has categorically deposed that accused never attempted to rape her nor threatened her.
14. As the prosecutrix as well as both the accused persons have jointly submitted that they have compromised the offence under section 420/34 IPC and they have requested for permission to compound the offence under section 420/34 IPC, considering the application which has been filed by the prosecutrix seeking permission to compound the offence under section 420/34 IPC along with a settlement agreement, her affidavit as well the affidavits of both the accused persons, the evidence of the prosecutrix and as the the accused persons have paid a total amount of Rs. 5,50,000/- to the prosecutrix as full and final settlement of her claim under section 420/34 IPC, i.e. Rs. 2 Lacs has already been paid on 05.06.2014 and the remaining amount of Rs. 3,30,000/- is being paid today as Rs. 3 Lacs vide demand draft and Rs. 50,000/- in cash which she has accepted, and as the compromise appears to have been made voluntarily and without any threat, pressure, influence or coercion, permission to compound the offence under section 420/34 of the IPC has been granted (in the order sheet).
Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 8 of 13 ::-
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15. As the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case in respect of commission of offences under sections 376/511/34 of the IPC and 506/34 of the IPC and more importantly has not assigned any criminal role to the accused persons regarding their attempting to rape her and threatening to kill her and her family, 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 official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself is partly hostile and has not supported the prosecution case regarding offences under sections 376/511/34 of the IPC and 506/34 of the IPC.
16. The evidence of all the other witnesses who have already been examined is formal and official and they have not deposed anything incriminating against both the accused persons.
17. Statements under section 313 of the Cr.P.C. of both the accused persons regarding offences under sections 376/511/34 of the IPC and 506/34 of the IPC is dispensed with as there is nothing incriminating against them when the prosecutrix is hostile regarding the accused attempting to rape her and threatening her and nothing material has come forth in her cross examination by the prosecution.
18. I have heard arguments at length. I have also given my Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 9 of 13 ::-
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conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
19. In the light of the aforesaid nature of deposition of the prosecutrix who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable regarding the commission of offences under sections 376/511/34 of the IPC and 506/34 of the IPC. 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."
20. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
21. Consequently, no inference can be drawn that the accused persons are guilty of attempting to rape the prosecutrix and threatening to kill her and her family. There is no material on record to suggest that the prosecutrix was ever attempted to be raped or threatened by the accused. No case is made out against the accused as there is no incriminating evidence against him regarding the commission of offences under sections 376/511/34 of the IPC and 506/34 of the IPC.
Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 10 of 13 ::-
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22. 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 have not committed any offences under sections 376/511/34 of the IPC and 506/34 of the IPC. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
23. 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 attempted rape and threat by the accused. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. The prosecutrix has completely absolved the accused by deposing that never attempted to rape her nor threatened to kill her and her family.
24. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Yoagesh Gupta and Mr.Harpreet Singh @ Monu regarding the commission of offence pun- ishable under sections 376/511/34 of the IPC and 506/34 of the IPC. As the offence under section 420/34 of the IPC has been compounded, both the accused persons are acquitted for the offence punishable un- der section 420/34 IPC.
25. Accordingly, accused Mr.Yogesh Gupta and Mr.Harpreet Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 11 of 13 ::-
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Singh @ Monu are hereby acquitted of the offences punishable under sections 376/511/34 of the IPC and 506/34 of the IPC.
26. Compliance of section 437-A Cr.P.C. is made in the order sheet.
27. Case property be destroyed after expiry of period of limitation of appeal.
28. 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.
29. 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 has been acquitted of the charge of attempt to 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 Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 12 of 13 ::-
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about the present day situation of the veracity of the rape cases.
30. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
31. 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) on this 09th day of June, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 146 of 2013 Unique Case ID Number : 02401R0513102013 FIR No. 393/2013, Police Station Uttam Nagar Under sections 420/342/506/34 & 376/511/34 and 354/34 of the Indian Penal Code. State versus Mr. Yogesh Gupta & anr. -:: Page 13 of 13 ::-