Delhi District Court
State vs . 1. Manoj Kumar on 19 January, 2017
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS
JUDGE (SFTC), DWARKA COURTS, NEW DELHI.
SC No. 6/17
State vs. 1. Manoj Kumar
2. Sangram Singh
3. Omwati
4. Sunita
FIR No. 551/2016
U/s. 376/354/506/509/323/109/34 IPC
P.S. Uttam Nagar
19.01.2017
ORDER ON CHARGE :
1.The case of the prosecution, in brief, is that on 20.06.2016 at about 11 a.m. an information about domestic violence at the matrimonial house of the prosecutrix 'X' (real name and address are withheld in order to conceal her identity) was received by the duty officer at PS Uttam Nagar, New Delhi which was reduced into writing vide DD No.49A.
2. On receiving the said DD, a police official visited the matrimonial house of the prosecutrix 'X' and on his return lodged DD No.61B dated 20.6.2016 mentioning therein that merely some altercation between the motherinlaw and her daughterin law was found to have taken place at the spot.
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3. On the same day in the evening, however, prosecutrix 'X' lodged a complaint in writing at PS Uttam Nagar alleging therein that accused Manoj, her brotherinlaw, had been teasing her and asking her to have sexual relations with him for the last few months. It is further alleged that on 18.6.2016 when she was cooking in the kitchen, accused Manoj came there and dragged her sisterprosecutrix 'Y' (real name withheld in order to conceal her identity) with one hand while keeping his other hand on her private part. It is further alleged that with great difficulty prosecutrix 'X' managed to get her sisterprosecutrix 'Y' released from the clutches of accused Manoj before she could be dragged into his room. In her said complaint, prosecutrix 'X' has also asserted that she informed about the said incident to accused Omwati, accused Sunita and accused Sangram Singh who are her motherinlaw, sisterinlaw and husband respectively. However, they did not believe her and instead started abusing her and her sister. It is alleged that accused Manoj threatened her of dire consequences.
4. On the above complaint, the present FIR was registered on 20.6.2016 for the commission of offence punishable u/s 354 IPC against accused Manoj only.
5. The statement of prosecutrix 'Y was got recorded u/s 164 State v. Manoj Kumar and others Page 2 of 8 FIR No.551/16, PS Uttam Nagar Cr.PC on 23.6.2016 and in the said statement she has stated that in fact on the day of incident, accused Manoj committed rape upon her.
6. The statement of prosecutrix 'X' was also got recorded u/s 164 Cr.PC on 23.6.2016 wherein she has stated that accused Manoj, her brotherinlaw, had many times committed rape upon her and on 18.6.2016 he also attempted to commit rape upon prosecutrix 'Y'.
7. Based on the above statements u/s 164 Cr.PC and further investigation, Sections 376/506/509/34 IPC were added to the FIR.
8. I have heard Ms. Satvinder Kaur, Ld. APP for the State, Sh. Sanjay Kumar, Ld. Counsel for the complainant/prosecutrix and Sh. Chander Pal Singh, Ld. Counsel for all the accused.
9. Ld. Counsel for the accused has contended that prosecutrix X, who is the wife of accused Sangram Singh, is a constable in U.P. Police. She wanted accused Manoj to marry her sisterprosecutrix 'Y' and was also demanding half share in the ancestral house. When both the said demands were not accepted by the accused, the present false FIR was got registered. It is further contended that in their statements u/s 164 CrPC given by the prosecutrix 'X' and 'Y', for the first time allegations of rape were made and even in those statements there is a material contradiction. Secondly, it is contended that there is delay in lodging the FIR. The FIR State v. Manoj Kumar and others Page 3 of 8 FIR No.551/16, PS Uttam Nagar was got lodged after two days of the incident and from the DDs No.49A and 61B, both dated 20.6.2016, it is clear that there was only a matrimonial dispute which was later on converted into a heinous offence of rape. Lastly, it is contended that during investigation a CD containing conversation between the prosecutrix 'X' and her husbandaccused Sangram Singh was handed over to concerned ACP. It is contended that the said CD has been found to be genuine by the FSL. Ld. Counsel has prayed that there is no sufficient material for framing charge against the accused persons and, therefore, they are liable to be discharged in the present case.
10. On the other hand, Ld. APP for the State and Ld. Counsel for the complainant/prosecutrix have contended that there is sufficient material on record for framing charges against the accused persons. Ld. Counsel for the complainant has contended that statements u/s 164 Cr.PC alone should be taken into consideration at the stage of framing charge against the accused persons.
11. I have gone through the case file. The FIR in criminal case is an extremely vital and valuable piece of evidence. In her first complaint the prosecutrix 'X' did not make any allegation of rape or attempt to rape against accused Manoj upon prosecutrix 'Y'. It was also not alleged in the State v. Manoj Kumar and others Page 4 of 8 FIR No.551/16, PS Uttam Nagar said complaint that accused Manoj committed rape upon the prosecutrix 'X' and, as such, FIR was lodged for commission of offence punishable u/s 354 IPC only. It was only in the statements u/s 164 Cr.PC, allegations were made of rape and even in the said statements there is a material contradiction between the statements of the prosecutrix 'X' and that of prosecutrix 'Y'. Prosecutrix 'Y' in her said statement has alleged that she was raped on 18.6.2016 while prosecutrix 'X' has merely stated that accused Manoj had only attempted to commit rape upon prosecutrix 'Y' and in fact had raped prosecutrix 'X' many times before the day of incident i.e 18.6.2016. According to Ld. Counsel, the aforesaid apparent contradiction proves that no incident of rape had taken place on 18.6.2016. According to him, the statements u/s 164 Cr.PC cannot at all be believed for it is impossible that all the sexual acts alleged to have been committed upon her by accused Manoj in a span while he dragged prosecutrix 'Y' to his room and prosecutrix 'X' followed them. The contention of Ld. Counsel for the accused has merit.
12. At the time of hearing of bail application, a CD handed over by the accused persons to the police was found to be genuine. The relevant paras of the order dated 17.9.2016 passed by Ld. Special Judge, CBI (P.C.Act), Dwarka Cours, New Delhi vide which accused were State v. Manoj Kumar and others Page 5 of 8 FIR No.551/16, PS Uttam Nagar granted bail is reproduced herein below :
"f) The report from the FSL was filed before this court on 15.9.2016 as per which the CD was found to be genuine and today all the Ld. Counsels for the parties have been heard at length. The main argument advanced by the Ld. Counsel for the applicants is that the fact that the complainant admits in the telephonic conversation between her and her husband, accused Sangram Singh that she has filed this complaint only at the behest of her jija and she demands property and money from her husband to withdraw the said complaint, absolutely proves that no incident as alleged by the complainant or the prosecutrix had ever taken place..."
xxx xxx "i) I have carefully considered the submissions made by both the Ld. Counsels. In the considered opinion of this court taking into consideration that the CD being relied upon by the defence has been found to be genuine by the FSL, the transcript of the conversation contained therein prima facie gives rise to an inference, at this stage, that the complaint filed by the complainant cannot be taken as the gospel truth. In the said transcript the complainant herself, without any provocation has stated that she will windraw the present complaint only if she is given jewellery and her share in the property and further her sisterinlaw i.e the applicant Sunita is thrown out of the matrimonial home. She has also in the said conversation clearly stated that she has falsely implicated the applicants at the behest and on the advice of her nandoi Ajeet.."
13. The prosecutrix 'X' did not come forward to give her voice sample. However, during the arguments on bail application, Ld. Counsel for the complainant admitted before the Ld. Special Judge, CBI that the telephonic conversation recorded in the CD did take place between the prosecutrix 'X' and her husband. In the facts and circumstances of this State v. Manoj Kumar and others Page 6 of 8 FIR No.551/16, PS Uttam Nagar case, the statements u/s 164 Cr.PC cannot be taken as a gospel truth.
14. Prosecutrix 'X' and 'Y' were medically examined at DDU Hospital, New Delhi and the MLCs placed on record do not reveal any fresh sexual assault upon them.
15. Though not referred to or relied upon, it has been observed by Madhya Pradesh High Court in judgment - Sunder Singh v. State of M.P., Cr.R No.607/2013 decided on 3.9.2013 as under :
"42. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself have placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken favouring the accused, the court shall not put the accused to harassment by asking him to face a trial. Please see: State of Maharashtra v. Som Nath (1996) 4 SCC 659. In the case at hand, if the Court allowed to asking applicant face the trial on above discussed evidence, definitely it will amount to put the applicant for harassment."
16. After examining the documentary as well as oral evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted, before it is challenged by cross examination or rebutted by defence evidence, if any, is not showing that accusedManoj having committed the alleged offence u/s 376 IPC for which he is being prosecuted.
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17. Considering the facts and circumstances of this case, after sifting and weighing the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused, I am of the opinion that the materials placed before the Court do not disclose the grave suspicion against accused Manoj for framing a charge for committing offence punishable under Section 376 IPC. Accordingly, accused Manoj in the present case is discharged for the commission of the offence punishable u/s 376 IPC. Other offences are triable are the court of Ld. M.M. All the accused are directed to appear before the Court of concerned Ld.MM, Dwarka Courts, New Delhi at 2 p.m today itself who shall proceed further in the matter in accordance with law.
Dictated & announced today in (PRAVEEN KUMAR) open court on 19.1.2017. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
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