Delhi District Court
State vs Manish Tyagi @ Montu -:: Page 1 Of 12 ::- on 18 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 : 113/2015.
Unique Case ID Number : 02401R0332192015
State
versus
Mr. Manish Tyagi @ Montu,
Son of Mr. Naresh Tyagi,
Resident of House No.F-129, Gali No.8
Shiva Enclave, Vikas Nagar, Delhi.
First Information Report Number : 419/2015
Police Station : Ranhola
Under sections 376 (2) (n) (i) /417 of the Indian Penal Code.
Date of filing of the charge sheet before : 30.06.2015
the Court dealing with POCSO cases
Date of receipt of file after transfer to the
Special Fast Tract Court-01. : 27.11.2015.
Arguments concluded on : 18.12.2015.
Date of judgment : 18.12.2015.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the
State.
Accused is present on bail with counsel Mr. S.P Sharma
and Mr. Sanjay Sharma.
Prosecutrix is also present
Ms. Shubra Mehndiratta, counsel for Delhi Commission for
Women.
***********************************************************
Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola
Under sections 376 (2) (n) of the Indian Penal Code.
State versus Manish Tyagi @ Montu -:: Page 1 of 12 ::-
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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. Manish Tyagi @ Montu, the accused has been charge sheeted by Police Station, Ranhola, Delhi for the offence under section 376 (2) (n) (i) 417 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on November, 2014 at PVR, Vikas Puri, Delhi at 2.00 p.m, he took the prosecutrix (name mentioned in file and withheld to protect the identity of the prosecutrix) in a park and committed rape upon her several times on the pretext of marrying her due to which she has also became pregnant.
2. After completion of the investigation, the charge sheet against accused Manish Tyagi @ Montu was filed before the Court of the learned Additional Sessions Judge dealing with POCSO cases on 30.06.2015 and subsequently, the case had been transferred to this Court of the Additional Sessions Judge (Special Fast Track Court)- 01, West, Tis Hazari Courts, Delhi for 27.11.2015 as the prosecutrix was not a minor and was major.
3. After hearing arguments, vide order dated 10.12.2015, charge for offence under section 376 (2) (n) read with section 417 of the IPC was framed against the accused Mr. Manish Tyagi @ Montu to Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 2 of 12 ::-
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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. 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.
6. The prosecutrix, as PW1, has deposed that she knew the accused Manish Tyagi @ Montu, when she was studying in 8 th class. The accused used to meet her on the way of her school. They developed friendship and used to talk with each other. They developed physical relations with her consent. She became pregnant from the accused and she felt uneasiness due to pregnancy and informed her Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 3 of 12 ::-
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mother regarding their relationship. Her mother had taken her to the Police Station and the inquiry was made from her and her mother. The report (Ex. PW1/A) was lodged at the Police Station. She was taken to the hospital where she was medically examined vide MLC (Ex.PW1/B). She was produced before the learned Metropolitan Magistrate for recording her statement under section 164 of the Criminal Procedure Code (hereinafter referred to the Cr.PC) (Ex.PW-1/C). She has voluntarily stated that she had made this statement at the instance of her well wishers, on their wrong advise. She further deposed that the accused has not committed any offence and has not raped her on a false promise of marriage. She does 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.
8. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that she had made a statement before the police in the same manner which she had narrated today in the Court and 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 my signatures on the same. She has denied that she had made the complaint before the police on her own and not at the instance of her well wishers/friends. She has Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
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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 further denied that accused had committed rape upon her on the false pretext of marriage with her several times at different places as it is a specifically mentioned in her complaint (Ex. PW1/A - from point A to A). She was confronted with the complaint Ex. PW1/A. She had stated before 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 learned Metropolitan Magistrate. She had made physical relations with accused with her free consent. She has denied that she had given statement before learned Metropolitan Magistrate voluntarily and with her free consent and not at the instance of her well wishers. She has admitted that she had told the facts to the doctor at the time of her medical examination. She has voluntarily stated that whatever she had stated to the doctor it was at the instance of her well wishers and friends. She has admitted that she was pregnant at the time of her medical examination and that child was delivered who is now in Nari Niketan. The accused and she have decided that they shall get married and they shall take their son from Nari Niketan. She has further denied that she has given statement before doctor voluntarily and with her free consent and not at the instance of her well wishers. Her date of birth is 18.08.1996 and date of birth in the school record is mentioned as 02.03.2003 and due to Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 5 of 12 ::-
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this reason she had told the police in her complaint (Ex.PW1/A) that her age is 12 years. She has voluntarily stated that her age was 12 years at the time of alleged offence as per the complaint but actually she was major at that time. She has denied that she was deposing falsely as she has settled the matter with the accused and she has been won over by the accused due to which she was deposing falsely. She has denied that as accused and she are getting married, she has not deposed against him. She has voluntarily stated that accused is innocent.
9. She has also been cross examined on behalf of accused Mr. Manish Tyagi @ Monty. She has admitted that the accused has not committed any offence and the accused has not raped her on the false pretext of marriage. She has admitted that the accused had physical relations with her with her free consent. She has admitted that the accused is innocent. She has again prayed that the accused may be acquitted.
10.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 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 Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
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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.
11.Statement under section 313 of the Cr.P.C. of accused Mr. Manish Tyagi @ Montu 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.
12.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.
13. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witness, 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 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."
14. Similar view was also taken in the judgment reported as Madari Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 7 of 12 ::-
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@ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
15. 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.
16. 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).
17.It can be seen that the prosecutrix has given different accounts of the alleged incident. In her complaint, statement under section 164 Cr.P.C and MLC, the prosecutrix has stated that she was raped by the accused but in her evidence before the Court, she has deposed that she was not raped by the accused and she had physical Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 8 of 12 ::-
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relations with the accused with her free consent. When the prosecutrix says at one time that she was raped and another time that she was not raped, then the case becomes unworthy of credence and unreliable. No explanation is coming forth from the prosecution regarding these material contradictions and discrepancies in the different statements of the prosecutrix which strike at the root of the prosecution case and are fatal blemishes which cannot be ignored.
18. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
19.Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
20.Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 376 (2) (n) read with section 417 of the IPC as the prosecutrix has completely denied that she was raped by him on a false promise of marriage. She has deposed that she had physical relations with the accused with her free consent. She has even prayed for his acquittal. There is no material on record that the prosecutrix was raped by the accused on a false Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 9 of 12 ::-
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promise of marriage.
21. Consequently, no inference can be drawn that accused Mr. Manish Tyagi @ Montu on November, 2014 at PVR, Vikas Puri, Delhi at 2.00 p.m, he took the prosecutrix in a park and committed rape upon her several times on the pretext of marrying her due to which she has also became pregnant.
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 Mr. Manish Tyagi @ Montu has not raped her on the false promse of marriag. She had physical relations with the accused with her free consent. She did not have any grievances against the accused. She has even prayed for his acquittal. 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 claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offence of rape her.
The evidence of the prosecutrix makes it highly improbable that such incident ever took place. She has categorically deposed that the accused Mr.Manish Tyagi @ Montu has not raped her on false promise of marriage. She had physical relations with the accused Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 10 of 12 ::-
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with her free consent. She did not have any grievances against the accused. She has even prayed for his acquittal.
24.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. Manish Tyagi @ Montu for the offence under section 376 (2) (n) read with section 417 of the IPC as the prosecution has failed to prove that the accused has committed the offence of rape upon the prosecutrix.
25. Consequently, accused Mr. Manish Tyagi @ Montu is hereby acquitted for the offence under section 376 (2) (n) read with section 417 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 Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
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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.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
30.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 18th day of November, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number :113 of 2015.
Unique Case ID Number : 02401R0332192015.
FIR No. 419/2015, Police Station Ranhola Under sections 376 (2) (n) of the Indian Penal Code. State versus Manish Tyagi @ Montu -:: Page 12 of 12 ::-