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Delhi District Court

State vs 1.Mr. Rajan Sahni Son Of Mr.A.K.Sahni, on 23 February, 2013

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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                                       : 43 of 2013.
Unique Case ID Number                                       : 02401R0609642012.


State versus 1.Mr. Rajan Sahni son of Mr.A.K.Sahni,
                    Resident of House No.30A/43, West Punjabi Bagh,Delhi.


                  2. Mr. Binay Bhengra @ Benoi son Mr. Ram Bhengra,
                             Resident of House No.RZA-312, Nihal Vihar, Delhi.
                     (Already acquitted on 02.02.2013 after compounding the
                     offence under section 406 IPC))


First Information Report Number : 327/2012.
Police Station : Punjabi Bagh.
Under sections 376// of the Indian Penal Code, section 23 of the
Juvenile Justice Act and 14 of the Child Labour Act.


Date of filing of the charge sheet before                          : 22.12.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal                            : 09.01.2013.
in this Court{ASJ (SFTC)-01, West,


Sessions Case Number : 43/13.
Unique case ID Number: 02401R0609642012
FIR N0-327/2012; Police Station Punjabi Bagh.
Under sections 376// IPC, 23 JJ Act and 14 CL Act.
State versus Rajan Sahani & anr.                                       -::Page 1 of 51::-
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Arguments concluded on                                     : 23.02.2013.
Date of judgment                                            : 23.02.2013.


Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
                  Accused Mr.Rajan Sahni on bail.
                   Accused Mr.Binay Bhengra @ Benio has already been
                  acquitted vide order dated 02.02.2013 after compounding
                   the offence under section 406 IPC.
                  Mr. R.N.Vats, counsel for accused Mr.Rajan Sahni.
                  Dr.Vimal Ray Verma, counsel for the prosecutrix.
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JUDGMENT

1."Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 2 of 51::-

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above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.

2.Mr.Rajan Sahni, the accused has been charge sheeted by Police Station Punjabi Bagh, Delhi for the offence under sections 376/374/406 of the Indian Penal Code (hereinafter referred to as the IPC), section 23 Juvenile Justice Act (hereinafter referred to as the JJ Act) and 14 Child Labour Act (hereinafter referred to as the CL Act), on the allegations that during the period 2009 to September 2012 at House No.30-A/43, West Punjabi Bagh, New Delhi within the jurisdiction of Police Station Punjabi Bagh, he committed rape upon prosecutrix (name withheld to protect her identity) several times as mentioned her complaint, Mark X. Accused Mr. Binay Bhengra @ Benoi had been charge sheeted on the allegations that he had brought a minor from her native place and had gor her employed for money and had mis-appropriated her earnings.

3.After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 22.12.2012 and after its committal, the case was assigned to this Court (ASJ, Special Fast Track Court-01, West District, Tis Hazari Court, Delhi) vide order dated 09.01.2013 of the learned Sessions Judge, Delhi.

4.After hearing arguments, charge for offence under section 376 of the IPC was framed against the accused Mr.Rajan Sahni and charge for offence under section 406 IPC was framed against accused Mr.Binay Bhengra @ Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 3 of 51::-

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Benoi on 28.01.2013. No charge under the JJ Act and the CL Act was made out against both the accused persons as it is clear the prosecutrix is not minor as her age is 18-20 years as per ossification test report.

5.During the pendency of the case, on 02.02.2013, accused Mr.Binay Bhengra @ Benoi and the prosecutrix has moved an application under section 320 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) for compounding the offence under section 406 of the IPC. Accused had handed over a demand draft of Rs.40,500/- and cash amount of Rs.10,000/- to the prosecutrix in terms of the settlement arrived between them. The prosecutrix had voluntarily accepted the same and stated that she has voluntarily compromised the dispute with the accused Mr.Binay Bhengra @ Benoi. Vide order dated 02.02.2013,the offence accused Mr.Binay Bhengra @ Benoi was acquitted for the offence under section 406 of the IPC after the compunding of the offence under section 406 of the IPC.

6.In order to prove its case against accused Mr.Rajan Sahni, the prosecution has examined the prosecutrix as PW1; Ms.Shivali Sharma, learned Metropolitan Magistrate, who had recorded the statement of prosecutrix under section 164 Cr.P.C , as PW2; HC Panchu ram, who had recorded the formal FIR of the case, as PW3; Dr.Rishi Nayyar, who had medically examined accused Mr.Rajan Sahni as PW4; Dr.Bindu Kulshreshtha, who had medically examined accused Mr.Rajan Sahni, as PW5; Ms.Neelam Mehta, neighbour of the accused, as PW6; Ms.Samrit, the second maid of the accused, as PW7; Ms.Divya Rawat, Intervention oOfficer of NGO Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 4 of 51::-

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Shakti Vahini, as PW8; Mr.Hukam Singh, SDM, as PW9; Ms.Palvi Ghosh, Research and Documentation Officer of NGO Shakti Vahini, as PW10; SI Shiv Kumar, the first Investigation Officer, as PW11.

7.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 had been taken. 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 had been followed. Preliminary enquiries from the prosecutrix were made in which it was found that and she appears to be capable of giving rational answers queries and she also understands the sanctity of oath.

8.It is necessary to discuss and analyse the testimony of the prosecutrix who is most material witness in this case. The evidence of PW1, as testified before the Court on oath, is being elaborated below.

9.PW1, the prosecutrix, has been examined in camera. She has deposed that accused Benoi had brought her from her native place to Delhi in the month of March 2009 to work as a domestic servant. She had come to Delhi with the consent of her mother, Ms. Paano. She stayed in the house of accused Benoi for a week. Thereafter, he got her employed at H. No.30-A, Road no. 42, Punjabi Bagh, Delhi in the house of accused Mr.Rajan Sahni. Her salary Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 5 of 51::-

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was fixed at Rs.1400/- per month. Thereafter, she stayed in the house of accused Mr.Rajan Sahni and worked there as a domestic help. She had made the complaint accused Mr.Rajan Sahani at the instance of one Ms. Divya, who was working for the NGO Shakti Vahini as she had told her that she will received a lot of money, if she make a false complaint of a rape against her employer. Nothing wrong happened to her in the house of accused Mr.Rajan Sahni. He has not committed anything wrong with her.

10.As the prosecutrix was hostile, the Additional Public Prosecutor has cross examined her at length but nothing material for the prosecution has come forth. She has admitted in her cross examination by the prosecution that she had made the complaint dated 06.10.2012 against both the accused persons. However, she has denied most of its contents against accused Mr.Rajan Sahni. She has admitted that she had told the police that on 27th September, accused Rajan Sahni had called her for bringing tea and had raped me but did not give her any tablet. She had stated so falsely to the police at the instance of Ms. Divya, of NGO Shakti Vahini. She has denied the suggestion that the staff of the NGO or Ms. Divya had never told me to falsely implicate accused Rajan Sahni in the present case. She has admitted that she had stated my age to be 16 years to the police in my statement Ex.PW1/A. It was not with her consent but at the instance of Ms. Divya of NGO, Shakti Vahini. She had told lies before the learned Magistrate out of fear of Ms. Divya of NGO, Shakti Vahini on the same day of my statement. She had not met Ms. Divya after her statement was recorded by the police and no one from the NGO had met me in Nirmal Chayya nor instructed her Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 6 of 51::-

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to make any particular statement while she was staying in Nirmal Chayya. She has denied the suggestion that she had deposed the truth before the Ld. MM in her statement under section 164 Cr.P.C which was without any threat, pressure, coercion or influence. She has admitted that she had stated to the Ld. MM that she used to be raped by accused Rajan Sahni since the year 2011 whenever he was alone and he used to give her a tablet every time. She had made this false statement at the instance and out of fear of Ms. Divya of NGO Shakti Vahini. She has denied the suggestion that she had stated in my statement to the SDM Punjabi Bagh that w.e.f year 2011, she had been been raped about 5 times by accused Rajan Sahni and thereafter he used to give her a tablet.

11.In her cross examination on behalf of the accused, she has admitted that the complaint Ex.PW1/A was made by her on false facts against accused Rajan Sahni at the instance of Ms. Divya of NGO Shakti Vahini. Accused Rajan Sahni has not committed rape upon her and he is innocent. Her statement u/s 164 Cr.P.C in which she has levelled allegations against accused Rajan Sahni was made at the instance of Ms. Divya on false facts. Her first statement given to the police on 05.10.2012 contains the true facts.

12.It can be seen from the evidence of the prosecutrix that she is giving different versions about the role of accused Mr.Rajan Sahni and the offence of rape at different times before different authorities i.e. the police, the learned Metropolitan Magistrate, the SDM and then the Court.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 7 of 51::-

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13.The prosecutrix, in her statement/complaint to the police made on 15.05.2009, Ex.PW1/A, recorded by the IO, has stated that accused Rajan Sahni has raped her on several occasions. The prosecutrix had deposed on 08.10.2013, in her statement under section 164 Cr.P.C., Ex.PW2/B, that accused Rajan Sahni has raped her. In her evidence in the Court, she has deposed that she had made the complaint against accused Rajan Sahni at the instance of one Ms.Divya, who was working for the NGO Shakti Vahini as she had told her that she will receive a lot of money, if she make a false complaint of a rape against her employer Mr. Rajan Sahni. Nothing wrong happened to her in the house of accused Rajan Sahni and he has not committed anything wrong with her. In her cross examination by the Additional Public Prosecutor on 23.01.2013, she has admitted that she had made the complaint against both the accused persons and she had stated to the police that on 27th September, accused Rajan Sahni called her for bringing tea and had raped her. She had stated so falsely to the police at the instance of Ms. Divya, NGO Shakti Vahini. She also admitted that she had stated before the learned Magistrate that she used to be raped by accused Rajan Sahni since the year 2011 whenever he was alone and he used to give her a tablet every time. Voluntarily she stated she had made this false statement out of fear of Ms.Divya, NGO Shati Vahini. It was not with her consent but at the instance of Ms. Divya of NGO, Shakti Vahini. She had told lies before the learned Magistrate out of fear of Ms. Divya of NGO, Shakti Vahini on the same day of my statement. She has denied the suggestion that she had stated in her statement to the SDM Punjabi Bagh that w.e.f year 2011, she had been been raped about 5 times by accused Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 8 of 51::-

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Rajan Sahni and thereafter he used to give her a tablet.

14.It can also be seen that the prosecutrix has taken different stands in her evidence regarding the allegations.

15.The prosecutrix, has not deposed an iota of evidence of her being raped at all by accused Mr.Rajan sahni. She has not even mentioned the word "rape" in her evidence nor has deposed anything incriminating against the accused Mr.Rajan Sahni.

16.It is important to discuss the evidence of Ms.Divya Rawat and Ms.Palvi Ghosh, the two witnesses from the NGO Shakti Vahini.

17.It may be observed that the charge sheet does not contain either the original counselling report or its copy. PW8, Ms.Divya Rawat, had produced her office file which contains a copy of her counseling report which was Marked as Mark X and it was observed that the stamp at the left side bottom corner of the first page of Mark X shows the words "Metropolitan Magistrate" and below it "Children" was visible. This document has not been proved in accordance with law as its original was not produced in the Court. Further, the stamp at the left side bottom corner of the first page of Mark X shows the words "Metropolitan Magistrate" and below it "Children" shows that it has not been received by the CWC and some forged stamp has been put on it otherwise "Children" would not have been mentioned on the same. Needless to mention that the full form of Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 9 of 51::-

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CWC is Child Welfare Committee.

18.Also, PW8 has deposed that she had handed over a request letter signed by her on behalf of Shakti Vahini but no such request letter has been filed along with the charge sheet nor submitted by PW8 herself in the Court.

19.Also it can be seen from the evidence of PW8 that she is the Intervention Officer in NGO Shakti Vahini at H-11, 2nd floor, Hudson Lane, Kingsway Camp, Delhi-09. Mr. Subir Roy is the Director of the NGO. She has given very evasive answers to the questions put to her. She has admitted to be cosrrect that she is not aware about the particulars of the person who had made a complaint to the NGO in respect of the prosecutrix nor she made any efforts to find out about the same. She apparently did not make any enquiry regarding the age of the prosecutrix nor had nor gave any document to the police to show that the prosecutrix is a minor. When SI Shiv Kumar refused to rescue the prosecutrix, Mr. Subir Roy, Director of the NGO called some senior Police officers may be ACP on which SI Shiv Kumar was made to go to the house of the accused again. After the so called rescue, PW8 did not let anyone come to the prosecutrix or meet her. She was following the case through out and keeping its track as PW8 enquired about when the statement of the prosecutrix is to be recorded under section 164 Cr.P.C. and she had come to Tis Hazari Courts where she talked to the prosecutrix. She has also stated that her statement was not recorded by the IO although it is in the file. She has not made any statement before any authority in respect of the present case except in the court. She has claimed Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 10 of 51::-

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that she had handed over a request letter signed by her on behalf of Shakti Vahini but no such document has been brought on the judicial record. She had not given any document relating to the age of the victim to the SI Shiv Kumar in the PS. She did not ask for age proof from the prosecutrix. She did not know whether or not the mother of the accused had given any age proof to SI Shiv Kumar She had no information with her and all the information regarding the prosecutrix was with the Director Mr. Subir Roy. She has not checked any document pertaining the age of the prosecutrix that she is a minor. She has not given any document to SI Shiv Kumar even at the second meeting. The officials of NGO Shakti Vahini had not given the address of the victim, however, she told the SI Shiv Kumar that she knows the place where the girl resides. She had not seen the address/residence of the prosecutrix prior to that day. When she did not know the address nor had visited it earlier then how she could claim that she knows the place where the girl resides has not been explained. She did not know the name of the Govt. Agency which has authorized NGO Shakti Vahini to rescue minor children. She was not aware about any permission being given by any Govt. Agency for such a rescue. Mr. Subir Roy had not given her any copy authorizing the agency to rescue the child nor she had given the same to the police. She was sitting in the said vehicle with the prosecutrix. She was in contact with the police officials of PS Punjbai Bagh at the direction of my boss Mr. Subir Roy even after the rescuing the girl and recording her statement before CWC and kept the track of the case. Even when the statement of the prosecutrix was to be recorded under section 164 of the Cr.P.C, she came with the prosecutrix from Nirmal Chayya to Tis Hazari Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 11 of 51::-

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Courts where the other officials of NGO had met them. She remained with the prosecutrix till her statement under section 164 Cr.P.C. was recorded. She had inquired from the IO about the date of medical examination of the prosecutrix. She was not aware whether any other official of NGO Shakti Vahini was present at the time of medical examination of the prosecutrix. She was not aware at that time that one Ms. Palvi Ghosh of the same NGO was also present in the hospital and she had got her presence recorded in the MLC of the prosecutrix. Mr. Roy may have sent her there. She has admitted to be correct that she was keeping track of the case on the instructions of Mr. Roy. Mr. Roy had told her that the father of prosecutrix had expired. She did not know from where Mr. Subir Roy got the said information. She cannot tell whether the NGO Shakti Vahini has contacted the relatives including the mother of the prosecutrix. She has not met the mother of prosecutrix although she knows that she had come to the court on 07.02.2013. She has admitted that she was sitting with her on the same bench outside the court.

20.It is clear that the there is a more than normal interest being shown by this witness, PW8, in respect of the case as she not only not allowed anyone to meet or talk to the prosecutrix after the so called rescue but also went to Nirmal Chayya from where she came with her to Tis Hazari Courts when the statement under section 164 of the Cr.P.C. was to be recorded and also kept sitting with her till then. She neither cared to verify about the particulars of the person who had made a complaint to the NGO in respect of the prosecutrix nor she made any efforts to find out about the age of the Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 12 of 51::-

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prosecutrix. Also by making a phone call to the Director of the NGO who talked to some senior police officer maybe ACP, due to which a police official SI Shiv Kumar was made to do something which he was otherwise was not inclined to do.

21.PW10 Ms. Palvi Ghosh is the Research and Documentation Officer in NGO Shakti Vahini situated at H-11, 2nd Floor, Hudson Lane, Kingsway Camp, Delhi-09. PW10, whose statement under section 161 of the Cr.P.C.

is in the judicial file has deposed that her statement was not recorded by the police. Mr. Subir Roy is the Director of Programmes and Projects of NGO Shakti Vahini had given the order orally and not in writing that a girl is to be rescued. She has denied being present when the prosecutrix was medically examined but her presence is mentioned in the MLC of the prosecutrix. She had taken the copy of FIR on her own. During her research in this case, she had seen the counseling report prepared by Ms. Divya Rawat, Intervention Officer in NGO Shakti Vahini, the mail stating that a girl was being kept in the house and was being sexually exploited. It was an e-mail. The e-mail has been received by the Director and he had forwarded the same to me about 15-20 days prior to the rescue. She had read the e- mail. She was not aware when and by whom the e-mail had been sent as a copy had been forwarded to me by the Director without the details. After the receipt of e-mail by her, she did not go to the house of accused to make inquires or research. She has admitted that as a usual procedure a file is maintained regarding any mail being received in the office and its follow up. She has seen the file of this case. Neither PW10 nor the NGO had sent Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 13 of 51::-

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the copy of e-mail to SHO Punjabi Bagh for verification. Ms. Divya Rawat had not given basic document pertaining to this case i.e. the e-mail received in the office of NGO to the IO, SHO or any other authority. She has admitted that after the lodging of the FIR, the NGO is keeping track of this case. She is not aware which Govt. Authority has authorized NGO Shakti Vahini to rescue children. She has admitted that the officials of the NGO had tried to meet the prosecutrix in the Nirmal Chayya but could not meet her.

22.PW10 who is the Research and Documentation Officer in NGO Shakti Vahini has failed to maintain proper file of the so called rescue as she retained the FIR for herself; the e-mail received by the Director, forwarded to her about 15-20 days prior to the rescue, stating that a girl was being kept in the house and was being sexually exploited was neither produced nor proved in evidence; she was not aware when and by whom the e-mail had been sent; after the receipt of e-mail by her, she did not go to the house of accused to make inquires or research. Despite it being a usual procedure that a file is maintained regarding any mail being received in the office and its follow up, no such file was apparently maintained. Neither PW10 nor the NGO had sent the copy of e-mail to SHO Punjabi Bagh for verification. Ms. Divya Rawat had not given basic document pertaining to this case i.e. the e-

mail received in the office of NGO to the IO, SHO or any other authority. She is not aware which Govt. Authority has authorized NGO Shakti Vahini to rescue children. All these facts indicate that no such file is available with the NGO otherwise it would have been given to the IO during investigation Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 14 of 51::-

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or produced in the Court during evidence. The e-mail on the basis of which the NGO supposedly rescued the prosecutrix was not produced even in the Court nor the particulars of its informant were furnished nor the informant was produced The NGO, without verifying the facts has got a legal process initiated due to which two men were even put behind bars.

23.PW11, SI Shiv Kumar has deposed that on 05.10.2012 some official of NGO Shakti Vahini came to the PS and told that a minor girl rescue from home. They told that they know the address but they did not know the exact address. He recorded said information in the DD register as DD No.27 A at 11.05 am. He informed SHO PS Punjabi and on his direction, he along with lady Ct. Roshini and NGO Official went to 30-A/43, West Punjabi Bagh.

After reaching the house, they found one girl, the prosecutrix, who told that she does not have problem. NGO Official told that she did not go home for about 3 years. On enquiry that she talked to her mother, she told me that she regularly talked to her mother. At that time she told her aged about 16 years. He recorded her statement and took her to PS. Thereafter, he along with lady Ct and prosecutrix went to DDU hospital for her medical examination. After the medical examination, the prosecutrix was sent to Nirmal Chayya, Hari Nagar. When they are going to Nirmal Chayya after medical examination, Ms. Divya, official of NGO Shakti Vahini talked to the mausi of prosecutrix on her mobile and prosecutrix also talked to her mausi. After reaching Nirmal Chaya, he produced prosecutrix before the officials of CWC. They asked him to wait outside and they wanted to talk prosecutrix alone. They recorded the statement of the prosecutrix and one Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 15 of 51::-

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copy of the same handed over to him which he gave to the SHO Punjabi Bagh. Thereafter, he left for PS and prosecutrix was sent to Nirmal Chaya, Hari Nagar. On his return to PS, he lodged DD No.60B regarding my visit at the house of accused as well as Child Welfare Office. He was not aware about the address of accused nor of the NGO. He has admitted to be correct that the main entrance gate of the house of accused was opened by prosecutrix. When they went at the residence of accused Rajan Sahani, I was accompanied by Lady Ct. Roshini and 3-4 female officers and one male officer of NGO Shakti Vahini. He has admitted to be correct that the NGO people has neither given the copy of e-mail nor any age proof of the prosecutrix or proof of the date of birth of prosecutrix to him or to the PS. Although NGO personal told him that she is below of 16 years but when he enquired the prosecutrix, she stated that her age is about 16 years. He is aware that the children above the age of 14 years are not prohibited to work as a maid servant or domestic help. The NGO officials did not have any age proof document of prosecutrix. They had taken the prosecutrix to the PS in the absence of Ms. Mangla Sahni wife of accused Mr.Rajan Sahni, Mr.Rajan Sahni and his father. The prosecutrix had made her statement Ex.PW1/D1 without any fear and pressure or coercion and on her sweet will. The prosecutrix told him that she has not problem or difficulty of any kind at the residence of accused Mr.Rajan Sahani and she did not want to go immediately and she will go to her home in March 2013. On 05.10.2012 when we rescued the girl from the residence of accused Rajan Sahni, Ms. Divya Rawat of Shakti Vahini brought her from her room which was upstairs and he sent one of my police official to call them immediately and Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

Under sections 376/374/406 IPC, 23 JJ Act and 14 CL Act. State versus Rajan Sahani & anr. -::Page 16 of 51::-

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in this process one his police official fell down at the staircase. He has admitted to be correct that the prosecutrix was sitting in the vehicle of the NGO with Ms. Divya Rawat while they were going to DDU Hospital for her medical examination. He has admitted to be correct that on 05.10.2012 when he produced the girl for her medical examination to the concerned doctor, the prosecutrix had not alleged any sexual assault on her. After the medical examination of the prosecutrix, they started for the office of CWC i.e. Nirmal Chayya, Hari Nagar and during that period Ms. Divya Rawat and other NGO Officials were with the prosecutrix. The NGO did not give any age proof of the prosecutrix at CWC.

24.It can be seen from the evidence of PW11 that the prosecutrix told him that she does not have any problem. NGO Official told that she did not go home for about 3 years. When they are going to Nirmal Chayya after medical examination, Ms. Divya, official of NGO Shakti Vahini talked to the mausi of prosecutrix on her mobile and prosecutrix also talked to her mausi. He was not aware about the address of the accused nor of the NGO.

The NGO people had neither given the copy of the e-mail nor any age proof of the prosecutrix or proof of the date of birth of prosecutrix to him or to the PS. The NGO officials did not have any age proof document of prosecutrix. They had taken the prosecutrix to the PS in the absence of Ms. Mangla Sahni wife of accused Mr.Rajan Sahni, Mr.Rajan Sahni and his father. The prosecutrix had made her statement Ex.PW1/D1 without any fear and pressure or coercion and on her sweet will. The prosecutrix told him that she has not problem or difficulty of any kind at the residence of accused Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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Mr.Rajan Sahani and she did not want to go immediately and she will go to her home in March 2013. On 05.10.2012 when they rescued the girl from the residence of accused Rajan Sahni, Ms. Divya Rawat of Shakti Vahini brought her from her room which was upstairs and he sent one of my police official to call them immediately and in this process one his police official fell down at the staircase. He has admitted to be correct that the prosecutrix was sitting in the vehicle of the NGO with Ms. Divya Rawat while they were going to DDU Hospital for her medical examination. He has admitted to be correct that on 05.10.2012 when he produced the girl for her medical examination to the concerned doctor, the prosecutrix had not alleged any sexual assault on her. After the medical examination of the prosecutrix, they started for the office of CWC i.e. Nirmal Chayya, Hari Nagar and during that period Ms. Divya Rawat and other NGO Officials were with the prosecutrix. The NGO did not give any age proof of the prosecutrix at CWC.

25.It can be seen from the evidence of PW11 that Ms.Divya was actively involved and she remained all the time with the prosecutrix. It would be pertinent to mention here again that PW8, Ms.Divya Rawat, has deposed in her own evidence that while in the Police Station she did not let anyone meet the prosecutrix or talk to her.

26.

27.As regards the evidence of PW9, Mr.Hukum Singh, SDM Punjabi Bagh, he has deposed that he had recorded the statement of the prosecutrix. He was not aware about the provision under which he had recorded the Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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statement. There was no order, direction or request of the CWC addressed to him to record the statement but the IO had moved the application and had shown him a copy of the order of the CWC. He did not take the age proof of the prosecutrix from her or the IO or the Constable.

28.It may be observed here that under section 164 of the Cr.P.C, only a Judicial Magistrate can record the statement and not the Executive Magistrate or the SDM. This exercise of the SDM recording the statement of the prosecutrix was not required, more so when the statement of the prosecutrix was recorded by PW2, learned Metropolitan Magistrate.

29.From the above discussion and the evidence elaborate above, it is clear that 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.

30.The evidence of all the other witnesses is either official or formal and is insufficient for incriminating the accused Mr.Rajan Sahni.

31.The prosecution evidence is closed, declining the request of the Additional Public Prosecutor for grant of further opportunity to lead 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, police or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.

Sessions Case Number : 43/13.

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32.Statement of the accused Mr.Rajan Sahni 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. The other PWs are formal or official or police witnesses and their evidence is insufficient for incriminating the accused.

33.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.

34.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 376 IPC submitting that the prosecution has been able to bring home the charge against the accused Mr.Rajan Sahni by examining its witnesses whose testimonies are corroborative and reliable.

35.The counsel for the accused Mr.Rajan Sahni, on the other hand, has requested for his acquittal submitting that there is no incriminating evidence against the accused.

36.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be Sessions Case Number : 43/13.

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made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

37.Section 375 of the IPC reads as: Rape- A man is said to commit rape Sessions Case Number : 43/13.

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who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

                 First:-          Against her will.
                 Secondly:- Without her consent.
                 Thirdly:-            With her consent, when her consent has been

obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly:- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly:- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent Sixthly:- With or without her consent, when she is under sixteen years of age.

Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception:- Sexual intercourse by a man with his own wife not being under fifteen years of age, is not rape.

Sessions Case Number : 43/13.

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38.In the light of the aforesaid nature of deposition of PW1 (elaborated above) who happens to be the most material witnesses, I am of the considered view that her evidence cannot be treated as trustworthy and reliable as it is not worthy of credence and does not inspire confidence.

Reliance can also be placed upon the judgment reported as Suraj Mal v.The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as follows:

"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."

39.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004 (1) C.C. Cases 487.

40.The contention of the prosecution that as the prosecutrix has supported the prosecution case against the accused in her cross examination by the Additional Public Prosecutor and therefore accused should be convicted cannot be accepted as the prosecutrix not only has failed to support the case against the accused before the Court but has also deposed that the allegations made by her of rape by accused Mr.Rajan Sahni in her complaint to the police, statement under Section 164 Cr.P.C, statement before the SDM are false and she had told lies at the instance of Ms.Divya of NGO Shakti Vahini as she would get a lot of money if she levelled such allegations.

Sessions Case Number : 43/13.

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41.In such a situation, it cannot be said with certainty that it is the accused Mr.Rajan Sahni who has committed rape upon the prosecutrix as she is hostile to the prosecution case.

42.It also cannot be ignored that the doctors who had medically examined the accused Mr.Rajan Sahni have mentioned in the records that he has loss of libido/reduction of libido which also throws a shadow of doubt on the prosecution version that he has raped the prosecutrix.

43.Consequently, no inference can be drawn that accused Mr.Rajan Sahni is guilty of raping the prosecutrix. There is no material on record to suggest that the prosecutrix was raped. No case is made out against the accused as there is no incriminating evidence against him.

44.Crucially, the materials and evidence 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 absolved the accused of commission of offence thereby implying that he is innocent and has not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.

45.Consequently, no inference can be drawn that accused Mr.Rajan Sahni is guilty of the charged offence under section 376 the IPC. There is no materi- al on record to show that accused Mr.Rajan Sahni on 12.07.2012 at about Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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11.30 am at house no. C-228, Vandana Vihar, Nihal Vihar, Delhi, he com-

mitted rape on the prosecutrix.

46.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 rape. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place.

47.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.Rajan Sahni, for the offence under section 376 of the IPC.

48.Consequently, the accused, Mr.Rajan Sahni is hereby acquitted of the charge for the offence under section 376 of the IPC.

49.

50.Compliance of section 437-A Cr.P.C. is made in the order sheet.

51.As the prosecutrix has committed perjury, as discussed above and as also admitted by her, I deem this to be a fit case for making a Court complaint against the prosecutrix under section 195 Cr.P.C. to the Court of the learned Chief Metropolitan Magistrate, Delhi for prosecution of the prosecutrix for perjury. The complaint against the prosecutrix be made separately and Mr.Hira Singh Latwal, Reader of the Court is hereby authorised under section 195 of the Cr.P.C. By the Sessions Case Number : 43/13.

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undersigned to make the complaint before the Court of the learned Chief Metropolitan Magistrate Delhi today itself.

52.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.

53.Before parting, it would also be pertinent to observe that there are serious allegations made by the prosecutrix against Ms.Divya of NGO Shakti Vahini about being instigated, intimidated and pressurized to level false allegation of rape against her employer (acused Mr.Rajan Sahni) in order to extort money.

54.It also cannot be ignored that the NGO Shakti Vahini had moved an application before the Court under section 439 (2) of the Cr.P.C. for the cancellation of the bail of accused Mr.Rajan Sahni which has been dismissed earlier in the day. However, the interest taken by this NGO in the present case appears to be more than normal and usual as it had been admitted by its counsel during the arguments on the application that this is Sessions Case Number : 43/13.

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the only case where the NGO Shakti Vahini has applied for the cancellation of bail of the accused despite it being associated in over thousand such cases. The tone and tenor of the application also appears to be putting up of a defence by the NGO. This appears to reflect some underlying motive.

55.It has been observed that a recent trend is surfacing where either a domestic worker is being underpaid or where she has been detained by the employer for an unusually long period or where her work is unsatisfactory that such a domestic worker has unfortunately resorted to invoke the laws relating to sexual abuse for achieving her goal, may be due to ill advice, as is clear in the present case. A spurt of cases are being registered on the false allegations made by domestic workers, migrant as well as local, regarding rape and physical abuse by the employers. Instances of apparent nexus between the placement agency, NGO and the police have also been seen where a poor tribal girl has been used by any or all three to extort money, for person gain or take any other benefit. This trend requires to be nipped in the bud itself and the precious time of the government agencies i.e. the police, the judiciary etc. should not be wasted. It becomes the onerous duty of the Court to ensure that the existing penal provisions of offences of sexual assault on women are not misused and abused so as to implicate innocent persons and to also ensure that no guilty person escapes punishment and goes scott free.

56.In the given circumstances, it would be appropriate that the copies of the judgment, copies of all the different statements of the prosecutrix to the Sessions Case Number : 43/13.

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different authorities as well copy of the application of NGO Shakti Vahini for cancellation of bail of accused Mr.Rajan Sahni and the order dated 23.02.2013 on the same are sent to the DCP (West), Joint Commissioner of Police, Southern Range as well as the Commissioner of Police for information and for conducting investigation in respect of the deposition of the prosecutrix against Ms.Divya of NGO Shakti Vahini and regarding the role of NGO Shakti Vahini under compliance report to this Court within three months from the date of orders. The investigation be conducted by an officer not below the rank of Inspector and under the supervision of the DCP concerned. It should be ensured that all persons found responsible for misusing and abusing the process of law by getting instituted a false case against the accused by instigating, pressurizing and intimidating the prosecutrix are booked under the appropriate provisions and proceeded against in accordance with law. Further, all the cases, in future, be investigated thoroughly and properly before putting them in the Court for trial.

57.One copy of the judgment be given to the Additional Public Prosecutor, as requested.

58.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 23rd day of February, 2013. Additional Sessions Judge, Sessions Case Number : 43/13.

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(Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

************************************************************ * Sessions Case Number : 43/13.

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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 : 43 of 2013.

Unique Case ID Number : 02401R0609642012.

State versus 1.Mr. Rajan Sahni son of Mr.A.K.Sahni, Resident of House No.30A/43, West Punjabi Bagh,Delhi.

2. Mr. Binay Bhengra @ Benoi son Mr. Ram Bhengra, Resident of House No.RZA-312, Nihal Vihar, Delhi.

(Already acquitted on 02.02.2013 after compounding the offence under section 406 IPC) First Information Report Number : 327/2012.

Police Station : Punjabi Bagh.

Under sections 376/374/406 of the Indian Penal Code, section 23 of the Juvenile Justice Act and 14 of the Child Labour Act.

Present : Mr.Anil Kumar, Additional Public Prosecutor for the State.

Accused Mr.Rajan Sahni on bail.

Accused Mr.Binay Bhengra @ Benio has already been acquitted vide order dated 02.02.2013 after compounding the offence under section 406 IPC.

Mr. R.N.Vats, counsel for accused Mr.Rajan Sahni. Dr.Vimal Ray Verma, counsel for the prosecutrix. Mr.Ravi Kant, Mr.Ashok Kumar Singh and Ms.Richa Shrivastav, counsel for the applicant NGO Shakti Vahini. *********************************************************** ORDER

59.An application under section 439 (2) of the Code of Criminal procedure, 1973 as amended up to date, seeking cancellation of bail granted to accused Mr.Rajan Sahni vide order dated 29.01.2013, filed Sessions Case Number : 43/13.

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on behalf of NGO Shakti Vahini is pending and is being disposed off vide this order.

60.Arguments on the same have already been heard at length. Further arguments have been heard today. Material on record, relevant provisions of law and the precedents on the point have been perused.

61.In the present case, the accused Mr.Rajan sahni has been charge sheeted for the offence punishable under sections 376/374/406 of the Indian Penal Code, section 23 of the Juvenile Justice Act and 14 of the Child Labour Act. Vide order dated 28.01.2013, charge for the offence punishable under section 376 of the Indian Penal Code has been framed againt him to which he has pleaded not guilty. Charge for the offence under section 406 of the Indian penal code was framed against co-accused Mr.Binay Bhengra @ Benio who has already been acquitted vide order dated 02.02.2013 after compounding the offence under section 406 IPC. The evidence of the prosecutrix and some other prosecution witnesses including Ms.Divya Rawat and Ms.Palvi Ghosh, officers of NGO Shakti Vahini have also been recorded. Accused Mr.Rajan Sahni has been admitted to bail vide order dated 29.01.2013, after the evidence of the prosecutrix had been concluded.

62.The application under consideration had been filed on 07.02.2013 and has not been forwarded by the Additional Public Prosecutor, as mentioned in the order sheet dated 07.02.2013.

Sessions Case Number : 43/13.

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63.It has been argued by the counsel for the applicant Shakti Vahini, that it is the complainant of the case and has the locus standi to appear in this case and get the bail of accused Mr.Rajan Sahni cancelled. The NGO has rescued over a thousand children and works in collaboration with the MHA and Delhi Police. The dropping of the charges under the Child Labour Act and Juvenile Justice Act while framing the charge under section 376 of the IPC vide order dated 28.01.2013 against accused Mr.Rajan Sahni is wrong outrightly as the prosecutrix is a minor. This is a case of human trafficking and it shows that how minor children are brought from remote places like Assam, in the preset matter ad are made to work as domestic helps in houses where they are physically exploited. The civil society is aggrieved due to the release of accused Mr.Rajan Sahni on bail and wants to get his bail cancelled. There has been manipulation made by the accused Mr.Rajan Sahni as the prosecutrix, who cannot write, has written a letter from the Nirmal Chaya to the Superintendent that accused Mr.Rajan Sahni has not committed any offence which also shows that the Superintendent is also involved. The reputation of the NGO is being tarnished with the accused Mr.Rajan Sahni being released on bail. It has been argued that the prosecutrix has been kept as a bounded labourer and her salary has not been released in her favour which is violative of Article 23 of the Constitution of India. Further, the Placement Agency which had brought the prosecutrix from Asam to Delhi to work as a maid was not registered as per the directions of the Supreme Court. Dr. Vimal Ray Verma, advocate who is appearing for the prosecutrix from the DLSA is a male and only a female lawyer should have been appointed. The school certificate regarding the age Sessions Case Number : 43/13.

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of the prosecutrix was required to be verified and the ossification test is not valid since the prosecutrix is a minor. The fact that the letter written by the prosecutrix is not in her vernacular language and is a short and concise indicates that the letter is manipulated under the guidance of the Superintendent or the Lawyer of the DLSA. The mother of the prosecutrix has been touch in the feet of counsel for the NGO outside the court and praying for her release. She had also been offered money on behalf of the accused regarding which the NGO has reported to the SHO as well as the CWC but no action was taken. The role of the police in the present matter is doubtful as a notice under Section 160 Cr.P.C. was issued to the the mother of the prosecutrix and some addresses and phone numbers were mentioned by the IO for her. Copy of the same has been filed today. The roles of the placement agency, police, the prosecution, the Superintendent of Nirmal Chayya, the DLSA, the lawyer from the DLSA appearing for the prosecutrix and accused Rajan Sahni are not above board and requires investigation as they have attempted to hush up a case of human trafficking and bonded labour and have manipulated the evidence of the prosecutrix. The prosecutrix should be removed from the Nirmal Chayya and placed in a Shelter Home and given counselling by Swan Chetan. The NGO has been following the progress and keeping track of the case.

64.The Additional Public Prosecutor, has not forwarded the application under consideration and has argued that the application is without merit as the applicant does not have the locus standi to move such an application and therefore, the prosecution does not support the application. Otherwise also, Sessions Case Number : 43/13.

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there is no requirement of cancellation of bail since the evidence of the prosecutrix has already been recorded and she has turned hostile to the prosecution case. It is argued that the applicant NGO Shakti Vahini is levlling false allegations against all the agencies only to save its skin and create a defence since the prosecutrix has levelled allegation sof being forced to give her statement against the accused by the Officer of the NGO. There is no reason shown by the NGO why it did not appear on the date when the prosecutrix was examined in the Court since it is claiming to be following the progress and keeping track of the case. It is also argued that the NGO has moved the present application with ulterior motive and vested interest since the prosecutrix had made some allegation against the NGO.

65.The counsel for the accused have vehemently opposed the application submitting that the applicant does not have the locus standi to move such an application. The accused has never misused the bail granted to him. He has even taken the permission to leave the station for performing the last rites of his mother. He has no access to the prosecutrix as she is staying at Nirmal Chayya. Even when the charge was framed and when she was examined by the prosecution, accused Mr.Rajan Sahni was in judicial custody and could not have contacted the prosecutrix in any manner directly or through any other person. The prosecutrix has written to the Superintendent of Nirmal Chayya on her own and without the knowledge of the accused Mr.Rajan Sahni and he became aware of the same only in the appeal filed by his wife against the orders of the CWC which is pending before the Court of Mr.Raj Kapoor, leaned ASJ, West, Delhi. Otherwise also, there is no ground of Sessions Case Number : 43/13.

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cancellation of bail since the evidence of the prosecutrix has already been recorded and she has turned hostile to the prosecution case and there is no possibility of his tampering with the witnesses. It is also argued that the NGO has moved the present application with ulterior motive and vested interest since the prosecutrix had made some allegation against the NGO

66.The counsel for the prosecutrix has also opposed the application submitting that the application does not have any locus standi to file the application. All the allegations made regarding manipulating the prosecutrix are wrong. She is a major and above 18 years of age (20 as per her own statement) as is clear from the record.

LOCUS STANDI OF APPLICANT

67.At the outset, it may be observed that the applicant NGO Shakti Vahini is not the complainant of the case as it is the prosecutrix who is the complainant of the present case which is clear from the complaint Ex.PW1/A (statement of the prosecutrix to the police) and the charge sheet. The contention of the counsel for the applicant that it had contacted the SHO on which the prosecutrix was rescued is of no help as such since as per the record available the prosecutrix is the complainant of the case. In fact, the role of the NGO prior to the recording of the statement Ex.PW1/A is not even mentioned in the same and not even the statements under section 161 of the Cr.P.C. of Ms.Divya Rawat and Ms.Palvi Ghosh, officers of NGO Shakti Vahini and they have stated that they had come to the CWC only after the rescue. There is no document on the record which could indicate Sessions Case Number : 43/13.

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that the complainant or the aggrieved is the NGO. Therefore, it is clear that the applicant NGO Shakti Vahini is not the complainant, as per the available record.

68.Secondly, regarding the locus standi of the applicant NGO Shakti Vahini, it may be observed that in an application for cancellation of bail, it is only the Public Prosecutor, who is entitled to proceed with the prosecution of the case. The complainant or the relations or interested persons cannot file an application under section 439 of the Criminal Procedure Code for cancellation of bail granted to the accused. (Reliance can be placed upon the judgment reported as Sardela Damodar v. State of A.P., 1998 Cr. LJ 277 (AP)).

69.It is settled law that the bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom. It will not be proper to cancel the bail. (Reliance can be placed upon the judgment reported as (Dolat Ram v. State of Haryana, (1994) 3 Crimes 1013 (SC) : (1995) 1 SCC 349).

70.In a criminal case, there are mainly two parties involved i.e. the State and the accused besides the victim. A private party has no locus standi to invoke the jurisdiction under Section 439 (2) of the Cr.P.C. It is only the aggrieved who can apply for cancellation of bail and the aggrieved party is the State which is the custodian of the social interest of the community at large and so Sessions Case Number : 43/13.

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it is further state to take all the necessary steps for bringing the person who had acted against the social interests of the community to book (reliance can be placed upon the Judgment of the Hon'ble Apex Court in Thakur Ram & Others vs. The State of Bihar, AIR, 1966, SC 911).

71.It is needless to mention that very cogent and over whelming circumstances are necessary for an order seeking cancellation of bail.

72.The counsel for a party applying for anticipatory bail has no right to be heard. He could brief the State Counsel and only the State Counsel can be heard (Reliance can be placed upon the Judgment of the Hon'ble Delhi Court reported as Indu Bala & Others Vs. Delhi Administration & Others 1991 Cri.L.J. 1774). It has been held that time and again that an application for cancellation of bail can be filed by the Public Prosecutor only and the complainant or relations or interested persons have no locus standi to file such an application (Reliance can be placed upon the Judgment of the Hon'ble Delhi Court reported as Sardela Damodar vs. State of Andhra Pradesh and Others 1998 Cri.L.J. 277).

73.Even in an offence as heinous as bride burning it has been observed by the Hon'ble Delhi High Court that the sentiments and emotions have no part to play in bail matter.

74.Therefore, it is cleat that the application is liable to dismissed solely on the ground that it has been filed without locus standi and it has neither been forwarded nor supported by the prosecution.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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OTHER GROUNDS

75.However, even after considering the other contentions raised in the application, there is no cogent or convincing reason shown for cancellation of the bail of the accused.

76.The counsel for the accused has referred to the evidence of PW8 Ms. Divya Rawat and PW10 Ms. Palvi Ghosh, Officers of the applicant, NGO, Shakti Vahini submitting that it is clear from their evidence that they themselves have attempted to manipulate the statement of the prosecutrix as is clear from her evidence as PW1. Both PWs 8 and 10 have attempted to justify their action in their evidence while making several improvements from their statements under Section 161 Cr.P.C. At this stage, in an application for cancellation of the bail of accused, I am not inclined to discuss regarding the quality of evidence of PWs 8 and 10, therefore, this contention of the counsel for accused is being ignored.

77.It has been alleged by the applicant that in Paragraph 5A that the NGO was kept out of the matter / investigation by the IO and no statement of the NGO was recorded nor it was informed by the IO about the development in the matter, however, this contention from the face of record is apparently wrong as two officers of the NGO namely Ms. Divya Rawat and Ms. Palvi Ghosh have been associated in the investigation, their statements under Section 161 Cr.P.C. have been recorded and they have been examined as Pws 8 and 10 respectively.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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78.It is not the case that the accused has tampered with the evidence of the star witness of the prosecution since undisputedly he was in custody when she was examined by the prosecution. He apparently has not violated any of the conditions of bail as he took the permission of the Court to leave the station for the last rites of his mother. There is nothing to suggest that he has mis-conducted himself or done any act which could damage the prosecution case. There is no allegation made against the accused that either he himself or through someone else has contacted and manipulated the prosecutrix.

79.Another contention has been made by the counsel for the applicant that this is a case of human trafficking and it shows that how minor children are brought from remote places like Assam, in the present matter, and are made to work as domestic helps in houses where they are physically exploited. However, nothing has come on the record in the evidence of the prosecutrix, the star witness of the prosecution. She has infact deposed that she was brought to Delhi by accused Benoi (co-accused already acquitted) to work as a domestic servant with the consent of her mother. There is nothing to suggest that there was any human trafficking or that something wrong has been done to her against her wishes.She has not leveled any allegation in her evidence against the accused regarding any human trafficking or that she was forced to do any work against her will.

80.The argument that the prosecutrix is unable to write and therefore could not have written the letter dated 10.01.2013 addressed to the Superintendent of Nirmal Chayya which was sent to this Court by Mr.Ajay Kumar Malik, Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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learned MM-01, West, Delhi that accused Mr.Rajan Sahni has not committed any offence does not hold any force as this document has neither been relied upon by the prosecution nor the accused. Although, the counsel for the prosecutrix has submitted that that the prosecutrix has indeed written and submitted this letter and subsequently she has again submitted another letter dated 14.02.2013, copy of which was forwarded to him and he has filed on the judicial record. The second letter infact states that pressure is being put on the prosecutrix by her Mausi to depose as per the statement made by her on the instructions of Divya Didi earlier. Otherwise also, neither the prosecutrix nor her counsel have denied the execution of the letter and her signatures on the same. This fact indicates that there is no dispute by the prosecutrix about the execution of the letter. It also cannot be ignored here that unless the executant disputes the execution of any document like the letter in this case, it cannot be said that it has not been written by her and no third person can dispute the same.

81. It has been argued on behalf of the applicant that when the prosecutrix was rescued no woman constable was there. However, this contention appears to be baselass considering the evidence of PW11, SI Shiv Lal who has deposed that he along with lady Ct. It is clear from the record that he was accompanied by Ct. Roshni (female) and three girls (females) of the NGO.

82.As regards the contention that the reputation of the NGO is being tarnished or that the civil society does not like the accused being released on Sessions Case Number : 43/13.

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bail, howsoever the same may appeal to emotions, it is not tenable under the law and neither the NGO is a party in the present case nor the civil society is a party. Only two officers of the NGO i.e. Ms.Divya Rawat, Intervention Officer in NGO Shakti Vahini and Ms. Palvi Ghosh, Research and Documentation Officer in NGO Shakti Vahini are the prosecution witnesses and even they have been already examined and therefore the accused Mr.Rajan Sahni cannot be of any threat to them. To suit the NGO or the civil society, no man accused of rape can be incarcerated or kept behind bars on flimsy or non-existing grounds.

83.As regards the contentions of the counsel for the applicant that the dropping of the charges under the Child Labour Act and Juvenile Justice Act while framing the charge under section 376 of the IPC vide order dated 28.01.2013 against accused Mr.Rajan Sahni is wrong, it may be observed that the order on charge has neither been challenged by the State nor the accused and a third person like the applicant NGO cannot make any such claim. After hearing the arguments and considering the matter, the charge under the appropriate sections had been framed vide a detailed order dated 28.01.2013. Making such a submission also entitles the applicant NGO to be prosecuted under the appropriate provisions of law.

84.It would be relevant to point out here that the prosecutrix is above 18 years of age as is clear from the age determination report (which shows her age between 18-20 years) as well as the school certificate of the prosecutrix (which shows her date of birth as 03.06.1992 and it is verified by the Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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President/Secretary, SMC) which are in the judicial file and also from the evidence of the prosecutrix herself who has deposed her age to be about 20 years. As regards the age of prosecutrix, it may be mentioned that under Rule 12 of the Juvenile Justice Rules, the school certificate can be considered when the prosecutrix is a matriculate, from a recognized school. It is clear from the school certificate of the prosecutrix which has been verified by the certificate of the Education Officer as well as President/Secretary of the school that the prosecutrix is of more than 20 years of age (Reliance can be placed upon the Judgments dated 03.01.2013 and 14.02.2013 of the Hon'ble Delhi High Court in Crl. Rev.P.510/2012 Aakash vs. NCT of Delhi and Anr. and Crl. Rev.P.587/2012 Ruby vs. State (NCT of Delhi respectively). Except for the averment of the applicant NGO, there is nothing on the record which could indicate that the prosecutrix is a minor.

85.It may be observed also that the e-mail allegedly received by the NGO regarding the exploitation of the prosecutrix has not being produced nor proved by the two officers of the NGO today in the court. A copy of the e- mail has been filed by the counsel for the applicant, however, since the same had neither been filed during investigation to the IO or to the learned Area MM or in the Court during the evidence of PWs 8 and 10 and the same cannot be taken into consideration. Even if this copy of the e-mail is perused, it does not reveal any allegation of sexual exploitation by the accused of the prosecutrix.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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86.It would not be out of place to observe in this order itself that the application under consideration had been filed on 07.02.2013 by Mr.Ashok Kumar Singh, counsel for the NGO Shakti Vahini. On 18.02.2013, Mr. Ravi Kant and Ms. Richa, counsel for NGO Shakti Vahini had appeared and arguments have been advanced at length on that day. Today again Mr. Ravi Kant, Mr. Ashok Kumar Singh and Ms. Richa Srivastava, counsels for NGO Shakti Vahini have appeared and argued. It was only when the counsel for the accused mentioned that Mr. Ravi Kant is the President of the NGO, Shakti Vahini, he also submitted the same. The counsel for the accused has pointing to the Power of Attorney (vakalatnama) of the applicant has submitted that even in the name of Mr. Ravi Kant is mentioned although his enrollment number is not mentioned. Mr. Ravi Kant has produced his identity card issued by Supreme Court of India and has filed a copy of the same. He has admitted that he is an Advocate and also the President of the NGO, Shakti Vahini. No reason is disclosed by him as to why on the previous date when he advanced the arguments and even today when he advanced the arguments, he did not disclose that he was the President of the NGO, Shakti Vahini.

87.The counsel for the accused has submitted that the applicant is neither a Government Department nor approved and authorized by any Government Department and as such it cannot issue directions to anyone. The NGO is only a looter and cheater. The counsel for the applicant has argued that their NGO works in collaboration with the MHA and the Delhi Police but no such document has been filed.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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88.It has been argued on behalf of the applicant that the role of the police in the present matter is doubtful as a notice under Section 160 Cr.P.C. was issued to the the mother of the prosecutrix and some addresses and phone numbers were mentioned by the IO for her which has been filed today. I find on perusal of the document that it is addressed to Ms.Shanu Kishku while the mother whose application has been dismissed today earlier has mentioned her name as Ms.Pano Kishkum. Therefore, no weightage can be given to this document.

89.It would be pertinent to mention here that there are some averments made in the application of the applicant NGO which are on wrong facts especially in paragraph number 5 (j) on page 6 that Ms.Anju Dixit the proxy counsel for the prosecutrix could not appear for the prosecutrix as she never had any counsel and she hails from a backward area and no one can meet her in the Nirmal Chayya. It is clear from the record that Dr.Vimal Ray Verma, advocate had appeared in the Court on 24.01.2013 and filed his power of attorney (vakalatnama) in favour of the prosecutrix and had been appearing for her since then. He has stated that Ms.Anju Dixit, advocate, is his associate and she appears as his proxy counsel as times. It is informed that he is also appearing for the prosecutrix in the appeal before the other Court. Merely by the NGO claiming that the prosecutrix is unrepresented, does not make her so. It is also pertinent to note here that on 29.01.2013, Dr.Vimal Ray Verma had sought permission to talk to the prosecytrix in the Court room as he was not able to talk to her after 23.01.2013. the Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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permission was granted and they had talked in the chamber. Thereafter, the evidence of the prosecutrix had been recorded. A third person cannot come to the Court and challenge the authority of a lawyer who has appeared for the prosecutrix when she herself has given the same to him. Even in the Court, she did not say that Dr.Verma is not her lawyer or that she did not want to talk to him or appear for her.

90.Making wrong averments orally or in writing is a practice which should be best avoided and is highly depreciated.

91.The counsel for the applicant has also submitted that the evidence of the prosecutrix be again recorded as she has not supported the prosecution version under some pressure and it was not a free deposition as she has failed to deposed against accused Mr.Rajan Sahni.

92.This contention made through a lawyer, a legal professional, does not seem to be appropriate as there is a procedure prescribed for recording the evidence and deviation from the same can be made. Once the evidence of a witness has been concluded by the State and the accused, then the witness cannot be recalled for any further evidence or second evidence. Of course there is a provision of Section 311 of the Cr.P.C., but it has its requirements also. In the present matter, in an application for cancellation of bail of the accused, the applicant which is only an NGO and not a party cannot ask of the evidence of the prosecutrix for the second time.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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93.No person can come to the Court and say that a particular witness be examined after the conclusion of his/her evidence only to cater to the whims and fancies of such a person. It is clear from the record that the prosecutrix was produced from Nirmal Chayya on 29.01.2013 and in the presence of her counsel, her examination in chief was recorded and cross examination by the Additional Public Prosecutor was recorded on 29.01.2013 in the pre- lunch session and her cross examination by the counsel for the accused as recorded on 29.01.2013 in the post-lunch session. Whatever she had to depose has already been done when she was examined. There is no justified ground shown for examining the prosecutruix again.

94.It would be important to bring on the record here that when the prosecutrix as examined in the Court, 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 had been taken. 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 had been followed. Preliminary enquiries from the prosecutrix were made by the Court and it was found that and she appeared to be capable of giving rational answers queries and she also understood the sanctity of oath.

95.Now solely to satisfy the applicant NGO Shakti Vahini in an application for cancellation of bail of the accused, the prosecutrix cannot be made to Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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depose again only on the averments that her deposition was not freely made, which is otherwise also contrary to the record.

96.The essential ingredients required for the cancellation of bail are that The accused has contacted or put pressure on the witness. There is a possibility of accused fleeing from justice. The accused is delaying the proceedings.

97.In the present matter, nothing is disclosed which can indicate that the accused had either contacted or put pressure directly or indirectly upon the prosecutrix or that he has made any attempt to flee from justice or that he has attempted to delay the proceedings. He has been appearing regularly along with his counsel on every date.

98.Also, in paragraph 5 (I) on page 6 of the application there is a request for examining Ms.Smiriti, the other maid of the accused. She has already been examined as PW 7 on 18.02.2013 and she has not deposed anything incriminating against the accused nor deposed that the prosecutrix had told her anything about the rape by accused. She has infact deposed that the prosecutrix never made any complaint to her against the accused.

99.It would not be out of place to observe her that in paragraph 5 (d) on page 4 of the application the applicant has written that "Therefore, it is blatantly wrong to allege the NGO that upon receiving advice from the counsellor of the NGO, the victim levelled false allegation of rape."

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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Similarly there are some averments made in paragraphs 5 (b) (c) on page 3 where the applicant NGO appears to putting up its stand. The tone and tenor of the application indicates that the NGO is trying to build a defence and justify its action. This is an application for cancellation of bail of the accused and not for making a defence for the applicant or for denying any evidence which may have come against it in the trial.

100.It may be mentioned here that when the prosecutrix herself has deposed on oath that the accused Mr.Rajan Sahni has not committed any offence with her or raped her, there is no ground for cancellation of his bail. When the prosecutrix who could have been the aggrieved person has not supported the prosecution case and has not deposed anything incriminating against the accused, there is no ground disclosed for cancellation of his bail. It cannot be permitted that any person such as the NGO in this case approaches the Court for getting the bail of accused cancelled in the given situation.

101.The applicant has relied upon the judgments reported as Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 and Peoples Union for Democratic Rights and Others v. Union of India and Others 1983 SCR 456. However, both the judgments are not applicable to the given facts as elaborated in the above discussion.

102.It has been argued on behalf of the applicant that the roles of the placement agency, police, the prosecution, the Superintendent of Nirmal Chayya, the DLSA, the lawyer from the DLSA appearing for the Sessions Case Number : 43/13.

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prosecutrix and accused Rajan Sahni are not above board and require investigation as they have attempted to hush up a case of human trafficking and bonded labour and have manipulated the evidence of the prosecutrix. The prosecutrix should be removed from the Nirmal Chayya and placed in a Shelter Home and given counselling by Swan Chetan. It may be observed here that it was the discretion of the DLSA to appoint any lawyer for the prosecutrix, male or female. Further, from the record no such contention of the applicant appears to be correct. Even otherwise, a person not having locus standi to move an application for cancellation of bail of the accused cannot ask in the said application for investigating the matter against all the agencies involved.

103.The contention of the Additional Public Prosecutor as well as the counsel for the accused that the NGO has moved the present application with ulterior motive and vested interest since the prosecutrix had made some allegation against the NGO. The counsel for the applicant NGO on the other hand has submitted that it has been following the progress and tracking the case and for this reason, they have appeared. However, no reason is disclosed at all regarding the NGO, who supposedly is following the progress and tracking the case, not appearing before this court or even the learned Committal Court at any point of time prior to 07.02.2013, after the evidence of the prosecutrix had been concluded. This application under consideration does appear to be motivated and filed with some ulterior motive and underlying interest which is not being disclosed in the application.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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104.It is also important to note that during the during the course of arguments, on enquiry, the counsel for the applicant has admitted that out of the more than a thousand cases, this is the first case in which the NGO is applying for cancellation of the bail of the accused. No justified reason, however, is shown for giving any special importance to this case. Why the NGO has singled this case for filing the application for cancellation of the bail of the accused has not been explained.

105.Lastly, once again, it may be mentioned here that the prosecution has neither forwarded the application nor supported it and solely on this ground on the lack of locus standi the application merits to be dismissed. However, even the other contentions raised on behalf of the applicant have been dealt with in the order and are also found to be not tenable.

DECISION

106.Therefore, in view of the foregoing reasons, the conscience of this Court is completely satisfied that the application filed on behalf of NGO Shakti Vahini for cancellation of bail of accused Mr.Rajan Sahni is without any locus standi as well as without any merit and is accordingly dismissed.

107.Copy of the order be give to the counsel for the applicant, the Additional Public prosecutor as well as the counsel for the accused, as requested.

Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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Announced in the open Court on (NIVEDITA ANIL SHARMA) this 23rd day of February, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

*********************************************************** Sessions Case Number : 43/13.

Unique case ID Number: 02401R0609642012 FIR N0-327/2012; Police Station Punjabi Bagh.

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