Delhi District Court
Deepa Bajwa vs . State And Ors., Wp (Crl) No. 825/2001, ... on 13 March, 2015
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0178132014
SC No. : 192/14
FIR No. : 125/14
U/s. : 498A/406/376/34 IPC
PS : Pul Prahlad Pur
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Satish Sharma & Ors.
.........................Accused persons
ORDERS ON CHARGE
1.The case of the prosecution is that on 02.04.2014 the prosecutrix came at the police station Pul Prahlad Pur and gave a written complaint alleging therein that she got married with the accused Amit Sharma on 01.02.2013. The marriage was fixed with the mediation of Bal Chand who is real uncle (Mama) of accused Amit Sharma. At the time of marriage, it was told that Amit Sharma is DSP and belongs to a rich family. Her parents spent Rs. 5560 lacs in her marriage after taking loan from different persons and selling their ancestral properties. After the marriage, her father inlaw Satish Sharma, motherinlaw Kamlesh Sharma, husband Page No. 1 /29 Amit Sharma, Devar Harshwardhan and Munnu alongwith Bal Chand started taunting her for bringing insufficient dowry. According to them, her parents should have given Mercedes car and Rs. 11 lacs in cash in the marriage. She was mentally harassed and forced to bring more dowry from her parents by saying that she can live in their house only if she would bring dowry from her parents. She was confined in her inlaws house and was never allowed to meet her parents and sister or to telephone them. Whenever she tried to make her husband understand, her husband beat her with kicks blows and taunted her for bringing insufficient dowry. She further alleged that when she was being harassed by her inlaws, her father inlaw became very caring for her and told her that everything would be alright. Thereafter, her fatherinlaw started assaulting her sexually but somehow she managed to escape from his clutches. During this period, her husband went out of station for 23 months. In his absence, her fatherinlaw started touching her private organs and when she objected, he threatened to throw her out of the house and kill her. On 02.06.2013, 03.06.2013, 08.06.2013 and 09.06.2013 she was having her exams. Her father inlaw used to take her in his car. She alleged that her fatherinlaw did obscene things with her. On 08.06.2013, after her exam, her fatherinlaw took her in Flat No. 405, Charmwood village despite objected by her and in that flat, he outraged her modesty and touched her private parts. He wanted to establish physical relations Page No. 2 /29 with her but she somehow managed to escape from there and told him that she would then tell everything to her family. She came out of the said flat but her fatherinlaw forcibly made her sit in the car and threatened her of dire consequences.
On 10.06.2013, when she was alone in her house, her father inlaw again started doing bad things with her. She ran to her room, however, he followed her and started removing her clothes by use of force. He pulled the strap of her bra and attempted to remove her clothes. He fell on her and attempted to commit rape. She managed to escape from there, came out of the house and rushed to nearby park. When her motherinlaw came, she narrated the incident to her but she instead threatened her of dire consequences. When her mother called her, she told her to send her sisters and when her sisters came, she told everything to her sister Geeta. In the mean time, her husband also came. She narrated all the facts to her husband who told her that he would talk to his family but in the evening, her husband gave beatings to her with fist and kick blows. She further alleged that her husband alongwith his other family members always taunted her, mentally and physically harassed her and the harassment was to such an extent that she thought of committing suicide. She was, on so many occasions, physically and mentally harassed by her husband, fatherinlaw, motherinlaw and Bal Chand. She was also given beatings by her inlaws and husband by fist and kick blows. Her hair were pulled on many occasions by Page No. 3 /29 her inlaws, her devar Munnu also gave fist blows on her face. She was also threatened that her husband Amit Sharma would divorce her and she would be thrown out of the house. On 22.07.2013, when she went to her parents home, she told her mother about all the harassment meted to her by her inlaws and husband but her mother told her that everything would be alright. Even after returning to her matrimonial house, the behaviour of her inlaws and of her husband remained unchanged. She tolerated all harassments with a hope that everything would be alright one day. On 04.11.2013, her inlaws dropped her at her parent's house and on 07.11.2013, her inlaws called her parents and cousin brother Pravesh at Devi Lal Park, Palwal to talk about dowry for the last time. In that meeting, her fatherinlaw, Devar Munnu and Bal Chand talked with her parents and when her parents showed their inability to give dowry, her in laws threatened her of dire consequences. No one came from her in laws to take her back to her matrimonial house. She returned back to her matrimonial house with her father and when she reached her matrimonial house, her husband and her inlaws spit on her and gave filthy abuses. They all kept her in a separate room and threatened her that they would tell her relatives that she is characterless and that is why they do not want to keep her. Her fatherinlaw alongwith Bal Chand spread in her village that she is characterless and has also aborted.
On 05.01.2014, her inlaws told her parents to take her back Page No. 4 /29 as her parents failed to fulfill their demand alleging that she is characterless. Her parents tried to make her inlaws understand and also requested them. Thereafter, she was locked inside the room for 45 days. On 11.01.2014, her mother sent her sister Geeta at her matrimonial house but she was not allowed to meet her sister. They started quarreling with her sister. When she was going to Police Station, her Devar and motherinlaw unlocked her and made her sit in the car. She was also taken forcibly inside the car, where her Devar and motherinlaw threatened her that they have revolvers and if she or her family members lodge any complaint against them, they would kill them. Her sister Geeta was also threatened that acid would be thrown on her. In the night at about 9 PM, she and her sister were left alone at Aswata Mode, Palwal by them. Due to fear, she did not lodge any complaint against the accused persons. She alleged that thereafter, she received a notice of a civil suit filed by the accused persons against her in which false allegations of her illicit relations with one Sunil Kumar who is her cousin brother, were levelled.
2. On this complaint, case was registered under section 498A/406/34/354 IPC.
3. On 07.04.2014, the statement of the prosecutrix was got recorded, wherein she reiterated the contents of the FIR. She had stated that after the marriage, her fatherinlaw had taken her to her parents house. When her parents asked her as to why her husband Page No. 5 /29 has not come with her, she told them that her husband is not happy with the marriage as it was not of his standard. A small vehicle has been given though there should have been a Mercedes car and Rs. 11 lacs cash. Her husband used to take side of her motherinlaw and Dever. The things got worst and her husband also started beating her. Her motherinlaw and Dever used to abuse her in the absence of her husband. She had stated that her husband had gone out of station for three months. During that period, her fatherinlaw showed sympathy with her, he had taken her in his vehicle for her exams but on the way he used to make obscene acts, put his hand on her thighs and ask about her sexual relations with her husband. On 08.06.2014, he had taken her in his flat at 405, Charmwood village, forced her to sit on the bed, put his hand in her suit, pressed her breast and kissed her. On 10.06.2013, when she was alone, her fatherinlaw teased her and caught her hand. She somehow managed to free from there and came to her room but he followed her. He threatened her. He removed his Tshirt and lower, got her fall and lied on her. He started removing her suit. He removed her shirt. He exposed her chest and tried to open her pajama which in that process got torn. When she was pushing and begging him to leave her, he refused and behaved like an animal. He kissed her very badly and touched her vagina. She made all out effort and pushed him and thereafter ran towards park. When she told the incident to her motherinlaw, she instead beat her and threw her out of the Page No. 6 /29 house. She then decided to commit suicide. She had stated that her Dever used to beat her and also made punch on her face. She was many a times taunted for bringing insufficient dowry, physically and mentally harassed.
4. During the investigation, SI Satish Sharma collected the documents i.e. list of stridhan, marriage photographs etc. The prosecutrix also gave her written statement in response to notice under section 91 CrPC, wherein she reiterated the allegations of mental and physical torture meted to her by her inlaws. She had stated that her inlaws were not satisfied with the dowry and demanded a Mercedes car and Rs. 11 lacs in cash. Aspersions were also cast on her character. She had stated the her motherinlaw from the first day, had locked her clothes, jewellery, gifts, which were given in dowry in an almirah. She was not allowed to wear clothes of her choice. She was not even served proper food. She used to abuse and taunt her. She even did not allow to go to her parents house on festivals. Her Dever Mannu used to slap and pull her hair. Her brotherinlaw used to check her purse. Her motherin law kept all her articles, which were given in dowry. She gave the account of expenses and stated that despite the direction of the Court, she was not returned her jewellery and clothes etc.
5. The prosecutrix was also sent for her medical examination on 26.04.2014, where the doctor had recorded the history narrated by the prosecutrix, which is reproduced as under Page No. 7 /29
" Alleged history of attempted sexual assault in June 2013. according to patient, last year in June 2013, she was alone in her house. Her fatherinlaw started touching her body in kitchen. When she ran to her room. In her room, he brought revolver and took off his entire clothes. After that he started touching and kissing her breast and then took her lower clothes. He forcefully made her lie on bed and he laid on her. He inserted his finger into vagina and then he tried to insert his penis into vagina, however, before penetration could be attempted she ran away from her house"
6. During the investigation, section 376 IPC was added. The bills given by the prosecutrix were verified and after the investigation, the charge sheet was filed against the accused persons under section 498A/406/354/376/34 IPC.
7. It was argued by Ld. Counsel Ms. Rebeca John, Senior Advocate, for the accused persons that from the material available on record, no case under section 376 IPC is made out, at best it is the case under section 354 IPC. Ld. Counsel argued that touching breast and vagina does not constitute rape as there was not penetration, which is sine qua non for the offence of rape. Ld. Counsel contended that the marriage was solmenized on 01.02.2013, the prosecutrix and Amit Sharma got separated on 11.01.2014, the complaint was lodged by the prosecutrix, which culminated into registration of the case under section 406/498A/354 IPC against the accused persons on 03.04.2014 and the statement of the prosecutrix under section 164 CrPC was recorded on Page No. 8 /29 07.04.2014. Section 376 IPC was added on 25.04.2014, MLC of the prosecutrix is of 26.04.2014, where the prosecutrix made certain additions so as to make out a case under section 376 IPC. Ld. Counsel referred the complaint, statement of the prosecutrix under section 164 CrPC to submit that the allegations made therein do not constitute rape. Ld. Counsel submitted that before the amendment, inserting finger into vagina did not constitute rape but after 03.02.2013, insertion of finger into vagina amounts to rape. Ld. Counsel stated that in the statement under section 164 CrPC, the prosecutrix has stated that accused Satish Sharma had touched her vagina, meaning thereby that he did not insert his finger into her vagina. As per the complaint and the statement under section 164 CrPC, there was no insertion of finger into her vagina. It was alleged that accused Satish Sharma had attempted to commit rape but since there was no penetration so the case would fall under section 354 IPC, under which section the case was registered vide above FIR. Ld. counsel contended that for the first time, the ingredient of offence u/s 376 IPC came out when the MLC of the prosecutrix was prepared. Ld. Counsel referred the case of Smt. Deepa Bajwa Vs. State and ors., WP (Crl) No. 825/2001, Majhar @ Papoo and ors. Vs. State, 96(2002) Delhi Law Times 566 to contend that initial complaint is the most important as per which the case under section 354 IPC is made out. Subsequent improvements in the statement raise suspicion and it would amount to Page No. 9 /29 improvements. Ld. Counsel stated that had there been insertion of finger into her vagina, she would have alleged this fact in her complaint. It clearly shows that improvements were made by the prosecutrix on the legal advise just to give colour of rape. Ld. Counsel referred the case of Dilawar Babu Kurane Vs. State of Maharahstra 2002 Crl. L.J. 980 and Raju and ors. Vs. State of Madhya Pradesh, (2008) 15 SCC 133 to contend that for framing of charge, grave suspicion not mere suspicion is necessary and it is the duty of the Court to separate grain from the chaff. Ld. Counsel also referred the case of Rajender Singh Sachdeva Vs. State of NCT of Delhi, 2008 (2) JCC 979, to contend that no case under section 376 IPC is made out. Ld. Counsel submitted that she is conscious of the fact that statement of the prosecutrix is to be believed but that statement must be of sterling quality. Ld. Counsel stated that there are material improvements in the statement of the prosecutrix recorded during investigation and further from the supplementary charge sheet, it is reflected that the prosecutrix has forged the bills so as to make them inflated and in these circumstances, her statement would not be taken as of the sterling quality. Ld. Counsel also referred the case of Neera Singh Vs. State, Crl. M. C. 7262/2006, decided on 23.02.2007 to contend that it is incumbent upon the parents of the girls to make the list of articles given in the dowry and not maintaining the list would amount of violation of the directions of Delhi High Court. Ld. Counsel submitted that Page No. 10 /29 allegations of 406/498A are false, rather it is a fit case where the complainant be prosecuted for perjury / forgery.
8. Ld. Addl. PP on the contrary argued that at the stage of framing of charge, court is not required to weigh and sift the evidence meticulously. The court has not to go into realm of facts. The court has to see whether the material placed on record reasonably connect the accused with the commission of the offence. Ld. Addl. PP referred the case of Robin Sethi Vs. State of NCT of Delhi, Crl. M.C 3846/2013 to contend that from the complaint, statement u/s 164 CrPC and MLC prima facie case under section 376 IPC is made out. In the instant case, accused Satish Sharma allegedly tried to open the mouth of vagina of the prosecutrix and manipulated her body as to cause penetration. Ld. Addl. PP stated that allegations of entrustment of dowry, cruelty meted to the prosecutrix are specific and it is a fit case where the charge be framed against the accused persons for the offences punishable under sections 406/498A/376/354/506 IPC.
9. Ld. Counsel Sh. Shubham Asri for the complainant also supplemented the arguments advanced by Ld. Addl. PP and referred the statement of Pinto Kumar u/s 161 CrPC, to contend that touching vagina amounts to manipulation of body and would come within the definition of rape as defined under section 375. The MLC cannot be questioned at this stage. The bills provided by the jeweller etc were not taken during the investigation, rather their Page No. 11 /29 statements have been taken by the police by extending threats.
10. I have heard learned counsel for the parties and carefully gone through the record of the case. The law with regard to framing of charge is wellsettled. In the case of Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4, the Apex Court laid broad contours on the point of framing of charge. The same are reproduced as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.
By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the Page No. 12 /29 prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Crl.Rev.P.No.5132004 Page 9 of 23 Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
11. Similar opinion was expressed in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, wherein the Apex Court held:
"At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228.
12. In State of Bihar v. Ramesh Singh (1977) 4 SCC 39 considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that Page No. 13 /29 event it is not open to say that there is no sufficient ground for proceeding against the accused.
13. In the case of Dilawar Babu Kurane Vs. State of Maharahstra 2002 Crl. L.J. 980, the Apex court referred the case of Prafulla Kumar Supra, and held as under: "In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
14. It was observed in the case of Rakesh Kumar Gupta, 2010 (1) CC Cases (HC) 513 Page No. 14 /29 "Thus at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term "prima facie" nor can the term "strong suspicion"
have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances"
15. Applying the principles laid down in the cases as referred above, I find that the prosecutrix in her complaint to the police has alleged that her fatherinlaw i.e. accused Satish Sharma used to assault her sexually. In the absence of her husband, he had touched her private organs and when she objected, he threatened her to throw out of the house and to kill her. She has alleged that on 08.06.2013, accused took her in the flat at Charmwood village where he touched her private parts and outraged her modesty. He wanted to establish physical relations with her but somehow she manged to escape from there. He also threatened her of dire consequences. On 10.06.2013, when she was alone in her house, he Page No. 15 /29 started doing obscene acts. He followed her to her room where he started removing her clothes forcibly. He pulled the strap of her bra, fell on her and attempted to commit rape. Somehow she managed to escape. In her statement u/s 164 CrPC, she has stated that when she was being taken by her fatherinlaw in his vehicle, on the way, he made obscene acts, put his hands on her thigh. On 08.06.2014, he took her in the flat at Charmwood village, forced her to sit on the bed, put his hand in the suit, pressed her breast and kissed her. On 10.06.2013, when she was alone, her fatherinlaw caught her hand, followed her to her room, removed his Tshirt and lower, got her fall and thereafter lied on her. He removed her shirt, exposed her chest and tried to open her pajama which got torn. When she was pushing and begging, he behaved like an animal. He kissed her very badly and touched her vagina. She was examined by the doctor on 26.04.2014, whom she narrated the incident that in last year in June 2013, she was alone in her house. Her fatherinlaw started touching her body in kitchen. She ran to her room. In her room, he brought revolver and took off his entire clothes. After that he started touching and kissing her breast and then took her lower clothes. He forcefully made her lie on bed and he laid on her. He inserted his finger into vagina and then he tried to insert his penis into vagina, however, before penetration could be attempted she ran away from her house.
16. Section 354 IPC provides punishment for assault or criminal Page No. 16 /29 force to woman with intend to outrage her modesty. It reads as "whoever assault or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished.........."
17. The Apex court in the case of Tarkeshwar Sahu Vs. State of Bihar, (2006) 8 SCC 560, referred the provisions of section 354 IPC and held that the ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. A person slapping on the posterior of a woman in full public glare would amount to outraging her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady.
18. Section 375 IPC defines rape.
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of Page No. 17 /29 such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
19. A bare perusal of the complaint, statement u/s 164 CrPC and MLC of the prosecutrix, would show that the accused assaulted and used criminal force on the person of the prosecutrix to outrage her modesty. He touched her private organs and when she objected, he threatened her of dire consequences. On 08.06.2013, he outraged her modesty, touched her private parts in order to establish physical relations with her. On 10.06.2013, he followed her to her room, removed her clothes by use of force, also removed his clothes and laid on the prosecutrix. It is true that in her complaint, she did not allege that accused inserted his finger in her private parts but there is specific mention of accused touching her private parts and removing her clothes in order to commit rape. In her statement u/s 164 CrPC, she has stated that on 10.06.2013, accused had removed Page No. 18 /29 his shirt and lower, got her fall and lied on her, removed her suit exposed her chest, tried to open her pajama which got torn, behaved like an animal, kissed her very badly and touched her vagina. In the MLC, she has stated that when she was alone in her house, her fatherinlaw touched her body brought a revolver, took of his entire clothes, touched and kissed her breast, took her lower clothes, forcefully made lie on the bed, laid on her, inserted his finger into vagina and then tried to insert his penis into vagina. As per section 375 (b), inserting to any extent any object or a part of the body not being the penis into the vagina of a woman amounts to rape. As per section 375 (c), manipulation of any part of the body of a woman so as to cause penetration into the vagina also comes within the definition of rape. In the instant case, there are allegations that accused had touched her private parts, manipulated her body as to cause penetration. That being so, act of the accused Satish Shamra would fall within the four corners of the offence punishable under section 354/376 IPC. It is true that there is variance as to the allegation of inserting of finger into the vagina in the statement, complaint and the MLC but it is to be noted that prosecutrix had given this statement before the doctor, who is an independent person. There is nothing on record to infer that said history was given by the prosecutrix at the instance of the police or on some legal advice. Her complaint and statement appear to be natural. This Court at the stage of charge cannot come to a conclusion that the Page No. 19 /29 accused had not inserted his finger into the vagina of the prosecutrix. Her statement to the extent that the accused touched her private parts is consistent in the complaint, 164 CrPC statement and the MLC. It is true that the MLC was prepared after the statement of the prosecutrix u/s 164 CrPC but on considering the facts in totality in the given circumstances, at this stage, it cannot be held that accused had not inserted his finger into the vagina. Further, the prosecutrix at times has stated that the accused had attempted to commit rape.
20. In the case of Smt. Deepa Bajwa supra, the complaint was pending, the ingredient of the offence of section 3 of SC/ST Act were not complete. After seeking legal opinion, supplementary statement of the prosecutrix was recorded, in which it was stated that the petitioner has knowledge about the caste so the FIR was registered. It was held that the deficiency was made good by the police by seeking supplementary statement of the prosecutrix to cover up the lacuna in the FIR, which is totally unwarranted and is an abuse of process of law. FIR was accordingly, quashed. In the case of Majhar @ Papoo and ors. Vs. State, 96(2002) Delhi Law Times 566, the FIR did not contain any allegation constituting the offence u/s 498A against the petitioners. The second supplementary statement of the complainant was recorded where names of petitioners were added. It was held that the statement could be considered when some allegations are made in the FIR against the Page No. 20 /29 petitioner and not otherwise.
21. In the case of Raju and ors. supra, it was held that ordinarily the evidence of the prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration
22. In Rajender Singh Sachdeva Vs. State of NCT of Delhi, 2008 (2) JCC 979, there were allegations of sexual exploitation, taking nude photographs of the prosecutrix with the intention that Page No. 21 /29 prosecutrix be sexually exploited by the coaccused against her will and without her consent. Name of the petitioner was not mentioned in the FIR. The allegation against the petitioner surfaced only during statement u/s 164 CrPC. No video film or malarial was recovered. Statement of exhusband of the prosecutrix did not support her version. It was held that there is no logic as to the recording of the second statement u/s 161 CrPC except as an explanation by the complainant regarding identity and knowledge of the petitioner's name. The case of Prafulla Kumar Samal (supra) and Dilawar Babu Kurane supra were referred and the charge against the petitioner u/s 120B IPC was set aside.
23. In the present case, there are specific allegations in the complaint given at the first instance against the accused of outraging her modesty, attempt made by the accused to commit rape, touching of her private parts and criminal intimidation. She reiterated the allegations in her statement recorded u/s 164 CrPC. It was just an assertion to the doctor how she was sexually assaulted or molested. It is not the case that the prosecutrix introduced the new facts to make out a case of rape or to implicate the other accused persons. I am of the view that the case laws referred herein above in para no. 20 to 22 would not help the accused persons in any manner as the facts of the present case are entirely different and they give rise to reasonable probabilities and the chance of the accused Satish Sharma being connected with the offences u/s Page No. 22 /29 354/376/506 IPC
24. In the case of Robin Sethi Vs. State of NCT of Delhi, supra the High Court of Delhi, has held that for the purpose of framing of charge, Court is required to judicially consider whether on consideration of the material on record, it can be said that accused has been reasonably connected with the offence alleged to have been committed and on the basis of said material there is reasonable probabilities and chance of the accused being found guilty of offence alleged. The court is required to pursue the evidence on record without going into the deep probative value and conclude that there exist a ground for presuming that offence has been committed or not.
25. After sifting the material placed on record, in the given facts and circumstances of the case and in view of the settled preposition of law as discussed in the aforesaid paras, I am of the prima facie view that the case under section 354/376/506 IPC is made out against the accused Satish Sharma for his having using criminal force and assaulting the prosecutrix in order to outrage her modesty, for inserting his finger into the vagina of the prosecutrix and manipulating her body so as to cause penetration into her vagina and criminal intimidation. It is relevant to mention that only after the evidence, it can be determined with certainty if there was actually insertion of finger into her vagina by the accused or not. It would be premature to conclude at this stage that no offence of Page No. 23 /29 rape was committed by the accused as defined u/s 376 IPC.
26. As regards the contention that, the bills placed by the prosecutrix on verification were found to be false and manipulated and in view thereof, the prosecutrix can be termed as sterling witness, it is to be noted that Ld. counsel for the complainant during the course of arguments has stated that IO during investigation did not collect the original bills as to for how much amount the actual purchases were made. I am of the view that it is too early to form an opinion that the prosecutrix statement is not of sterling quality. She is to be subjected at the anvil of cross examination and only thereafter, it can be concluded whether she is a sterling witness or not. In the instant case, the allegations contained in the complaint and the statement recorded u/s 164 CrPC appear to be consistent.
27. As regards delay, it has come in the complaint of the prosecutrix that she had narrated the act of the accused persons to her parents, however her mother advised her to bear and one day, everything would be alright. She had also narrated the incident to her sister Geeta. When she received the notice from the accused, where the allegation of her illicit relation with Sunil Kumar were levelled, she made the complaint. It has also come in her complaint that her fatherinlaw and the other accused persons showed her revolver and threatened her of dire consequences. This might have been the reason for the prosecutrix not reporting the incident to the police. Further, the prosecution must be afforded an opportunity to Page No. 24 /29 explain the delay.
28. Now coming to the allegations under section 406 IPC, from the complaint, statement u/s 164 CrPC, the information given by the prosecutrix in pursuance to the notice under section 91 CrPC, and the staetment of the parents of the prosecutrix recorded during investigation, I find that Rs. 5560 lacs were spent on the marriage of the prosecutrix with the accused Amit Sharma. The father of the prosecutrix had taken loan from different persons and sold his ancestral properties. The prosecutrix has stated that after the marriage, all her stridhan were kept by her motherinlaw, who even did not allow her to wear clothes of her choice. The accused persons did not return her jewellery and other costly items. It is seen that normally, the stridhan is entrusted to elderly members i.e. motherinlaw, fatherinlaw and husband. They have dominion over her stridhan. The material placed on record also shows that the Court while hearing the bail application of the accused persons had directed the accused persons to return her stridharn but despite that her complete jewellery and other costly items were not returned by the accused persons and were misappropriated. The very act of the accused persons namely Satish Sharma fatherinlaw, Kamlesh Sharma motherinlaw and husband Amit Sharma amounts to criminal breach of trust, which constitutes the offence punishable under section 406 IPC.
29. As regards the offence under section 498A IPC, the Page No. 25 /29 complaint, statement recorded u./s 164 CrPC and supplementary statement, clearly reveal that the accused persons were not satisfied with the dowry, the prosecutrix had brought at the time of her marriage. They taunted and harassed her for bringing insufficient dowry. They through the mediator also made demand of Rs. 11 lacs in cash and a Mercedes car. She was not given clothes and food. She was treated badly. She has alleged that her inlaws, her Dever Mannu beat her many times. They harassed her for dowry and also threatened her of dire consequences. Her fatherinlaw and her Dever Mannu also demanded dowry and behaved very badly with her parents. They had also showed their dissatisfaction to the proseuctrix that marriage was not solemnized to their standards. As and when she complained to her husband about the behaviour of her inlaws he behaved indifferently, beat her and also harassed her for dowry. They all subjected her with cruelty. It has also come in her statement that she also thought of committing suicide.
30. Section 498A read as under: "498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, Page No. 26 /29 limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]
31. In the case of Adarsh Prasad vs. Sarita, AIR 1987 Del. 203, the husband and his parents were greedy people. Their desire for dowry was insatiable. They went on demanding dowry even after two years of marriage, and since the parents of wife could not meet these, they started illtreating her with a view to coercing her parents to give dowry. The Delhi High Court held that this amounted to cruelty and punishable u/s 498A IPC.
32. As regards accused Harshwardhan, from the complaint and the statement, I find that the allegations against him are not specific. It appears that the complainant/ prosecutrix in order to score her estranged feelings has roped the entire family of her husband. There is no specific instance that her Dever Harshwardhan had beaten her or subjected her with cruelty. I am of the view that no case is made out against the accused Harshwardhan.
33. On considering the entire material on record, I am of the view that prima facie case under section 498A IPC is made out against the accused persons namely Satish Sharma, Kamlesh Sharma, Amit Sharma and Mannu Sharma for their having been Page No. 27 /29 subjected the prosecutrix to cruelty on account of bringing insufficient dowry.
34. During arguments, Ld. Counsel referred the case of Neera Singh Vs. State, Crl. M. C. 7262/2006, decided on 23.02.2007 to contend that allegation against the accused were not specific with regard to entrustment of items. The allegations were made only after break down of marriage and if a woman gets married to a person despite dowry demands she and her family becomes accomplice in the crime under dowry prohibition Act.
35. I do not find force in the contentions. In the instant case, the complainant did not allege that there was demand of dowry by the accused before her marriage. She had alleged that accused were not satisfied with the dowry she had brought. They had expected Rs. 11 lacs cash and a Mercedes car for which they harassed her and subjected her with cruelty when she and her parents expressed her inability to meet their demands. In the instant case there are specific allegations of entrustment of items with the accused persons and cruelty meted out at the hands of the accused persons so as to make out case under section 406/498A IPC against the accused persons.
36. In the light of above discussion and the case laws supra, prima facie, I find sufficient material against the accused to frame charge against the accused persons i.e. under section 354/376/506 IPC and 406/498A IPC r/w section 34 IPC against the accused Satish Sharma; under section 406/498A IPC r/w section 34 IPC Page No. 28 /29 against the accused Amit Sharma and Kamlesh Sharma; and under section 498A IPC r/w section 34 IPC against accused Mannu Sharma. No case is made out against the accused Harshwardahan. He is discharged of the offences. His bail bond is cancelled and surety is discharged.
37. Let the charge be framed against the above said accused persons.
38. Now to come up on 31.03.2015 for framing of charge.
Announced in the open
court today i.e. 13.03.2015 (Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
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