Delhi District Court
State vs . 1. Vinay Sharma on 21 September, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.50/15.
Unique Case ID No. 02405R0083102015.
State Vs. 1. Vinay Sharma
S/o Sh. Nekram Sharma,
R/o RZF-760/20A, Gali No.2,
Raj Nagar-II, Palam,
New Delhi.
2. Pawan Mehta
S/o Sh. Jiwan Singh,
R/o RZF-770/28, Gali No.12, Raj Nagar-II,
Palam,
New Delhi.
3. Rinku
S/o Sh. Rakesh Kumar,
R/o RZF-757/10, Raj Nagar-II,
Palam,
New Delhi.
Date of Institution : 16.7.2015.
FIR No. 634 dated 07.10.2014.
U/s. 376/506 IPC.
P.S. Dwarka South.
Date of reserving judgment/Order : 10.9.2015.
Date of pronouncement : 21.9.2015.
JUDGMENT
1. The above named accused Vinay Sharma, Pawan Mehta and Rinku were chargesheeted by the prosecution for the SC No.50/15. Page 1 of 19 offences u/s.376/506 IPC.
2. Perusal of the Charge Sheet reveals that the prosecutrix namely 'N' (real name withheld in order to conceal her identity) submitted a written complaint in the police station on 07.10.2014, the contents of which are reproduced herein :
".................. I know the boy named Vinay for the last one and a half years. He was my friend and we used to talk on phone. I had talked to him the day before yesterday and he asked me to meet him at Shukra Bazarwala Road saying that he is to talk to me regarding some important matter. I went to meet him. He made me to sit in his car and took me to a park in Sector-10, Dwarka, where he raped me. I had become scared and hence could not raise alarm. Vinay had met me on 05.10.2014 and he did this to me on that day. Vinay's friend Pawan and Rinku had earlier threatened me several times that they would kill me and would throw acid upon me. Legal action may be taken against all of them. That day I had tried to get down from the car but Vinay had locked the car. Hence I could not escape."
3. The aforesaid complaint of the prosecutrix was received by SI Shiksha. She made inquiries from the prosecutrix and then got the FIR registered. She accompanied the prosecutrix to the spot of incident and prepared a rough site plan of the same. She sent the prosecutrix to DDU Hospital for medical examination SC No.50/15. Page 2 of 19 and seized the exhibits given by the doctor. She also got the statement of the prosecutrix u/s.164 Cr.PC recorded. Prosecutrix was got counselled by an NGO counsellor. Accused Vinay was granted anticipatory bail by the Sessions Court and hence he was formally arrested by the IO. His medical examination was got conducted in DDU Hospital vide MLC no.11068 of 2014. Exhibits given by the doctor were seized by the IO. All the exhibits were then sent to FSL for forensic examination.
4. The prosecutrix had stated that the accused was having i-10 car but on inquiry, IO came to know that the accused does not have any such i-10 car. IO obtained the call detail records of the mobile phone of the accused. Since the prosecutrix did not make any accusation against Rinku in her statement u/s.161 Cr.PC and in the statement u/s.164 Cr.PC, he was not arrested. Accused Pawan joined the investigation and inquiries were made from him. He was arrested but since the offence alleged against him was bailable, he was released on bail.
5. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned court.
6. Upon committal of the case to the court of Sessions, Charge u/s.376 IPC was framed against accused Vinay on 24.8.2015. Charge u/s.506 IPC was also framed against accused Pawan and Rinku on the same day. All the three accused denied the charges and hence trial was held.
7. At trial, the prosecution examined eight witnesses to SC No.50/15. Page 3 of 19 prove the charges against the accused. The accused were examined u/s.313 Cr.PC on 03.9.2015 wherein they denied the prosecution case and claimed false implication. Accused Vinay Sharma stated that the prosecutrix had given him offer of friendship which he denied. The accused chose not to lead any evidence in defence.
8. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
9. The prosecutrix has been examined as PW1. I think it necessary to reproduce her examination in chief in her own words herein :
"In the year 2013, our family was residing at House No.RZF 907/1, Gautam Budh Gali, Raj Nagar, Palam, New Delhi. Accused Vinay Sharma (present in court today and correctly identified) was residing in my neighbourhood. The accused offered friendship to me. Initially I refused his offer but he kept on conveying the offer to me again and again through his friends and ultimately, I accepted his offer. We became friends. We started meeting each other. The accused also provided to me a Sim card, which I inserted in a mobile phone, which we had in our house and thereafter we used to talk to each other on phone. We also used to go for outings to various places in Delhi.
On Friendship Day i.e. 4.8.2013, the accused made a call to me and asked me to reach his home in gali No.2, Raj Nagar Part-II. Accordingly, I reached the accused's said house. He had already consumed liquor. The accused committed forcible sexual intercourse with me on that day in his house. The accused then told me that he would marry me. I told him that his marriage has been already fixed with some other girl to which he replied that he does not SC No.50/15. Page 4 of 19 want to marry that girl and wants to marry me only. I had come to know some time before that the marriage of accused has already been fixed with some other girl.
Thereafter we continued to talk to each other on phone. We also used to meet each other at various places. We also used to have physical relations with each other in a flat in Gali No.11, Raj Nagar, which was owned by a person known to accused. The accused always used to tell me that he would marry me. This continued till Feb.2014.
On 15.2.2014, I came to know from a lady residing in our neighborhood that accused's engagement ceremony is to take place on that day. I made a call to him and he confirmed to me that his ring ceremony is going to take place that day. He also told me to meet him at Ramphal Chowk. Accordingly, I met him. He told me that let the engagement ceremony take place but he would not marry that girl. He also told me that he would run away alongwith me the next morning. I made calls to him late at night but he did not pick up my phone. He then called me at about 12 midnight and asked me to be ready in the morning to run away alongwith him. He had told me that we would solemnize marriage in court outside Delhi.
I rose up early in the morning on 16.2.2014. I made several calls to him but he did not pick up the calls till 9 am. I again made a call at 9 am and this time it was answered by accused's friend Rinku (present in court today and correctly identified) saying that accused has gone out and would be returning soon. I again made a call at 10 am and the call was again answered by Rinku who told me that accused is not going to talk to me and would not marry me. I left my home to go to accused's house. Accused Rinku and accused Pawan (present in court and correctly identified) stopped me on the way. Accused Rinku threatened me with dier consequences if I visited the house of accused Vinay. Accused Pawan held my hand and told me that he also had raped a girl in the similar manner but was let off after paying Rs. 40,000/- to the police man. Meanwhile accused Vinay came out of his SC No.50/15. Page 5 of 19 house, held my hand and took me inside a gali. He told me that he would not remain happy with me. Thereafter I returned home.
On the same day, I made a call to the uncle of Vinay, namely Kuldeep and told him that there had been physical relations between myself and Vinay. However, he disconnected the phone. He then filed a complaint against me in the police station saying that I should not create any hindrance in the marriage of Vinay. On the same day, Vinay's brother Vinod came to me and talked to me in very filthy language.
The marriage of the accused was solemnized with a girl named Manju on 17.2.2014. Thereafter I stopped talking to the accused. However, the accused Vinay met me on 3.10.2014 and asked me to make a call to him. I made a call to accused Vinay on 5.10.2014. It was his birthday on that date. I extended my birthday wishes to him. He then told me to meet him near Friday Market. I reached near Friday Market. The accused Vinay was already waiting there in his Hyundai i-10 car. He made me to sit in the car and took me to the park in Sec. 10, Dwarka. It was 4 pm. Some people were present in the park and were erecting Shamianas for a fair to be held there. Accused Vinay parked the car at a secluded place in the park and then committed forcible sexual intercourse with me inside the car. He had locked the car from inside and hence I could not come out. He then told me to meet him at 6 pm again and he would give me i-pill tablet but I did not go to meet him.
On 7.10.2014, I alongwith my sister Khushi reached police station where I submitted a handwritten complaint which is Ex. PW1/A bearing my signatures at point A. Then I showed that place in the Park in Sec. 10, Dwarka to police officials where the accused had raped me inside the car. From there I was taken to DDU Hospital where my medical examination was conducted.
Accused Rinku met me on 8.10.2014 near my house and threatened me that he would throw acid upon me if I lodged any complaint against Vinay. I did not tell him that I have already lodged the complaint. On 14.10.2014, I was brought to Dwarka Court by SC No.50/15. Page 6 of 19 police officials and produced me before a ld. Magistrate, who recorded my statement."
10. She further proved her statement u/s.164 Cr.PC as Ex.PW1/B. She was declared hostile on the request of Ld. APP and in the cross examination conducted by Ld. APP, she admitted that accused Pawan and Rinku used to threaten her whenever they used to meet her on the way. She however denied that the site plan Ex.PW5/C was prepared by the IO in her presence and at her instance. She stated that she signed the same in the police station.
11. In the cross examination conducted on behalf of the accused, she admitted that she had fallen in love with accused Vinay Sharma. She admitted her signature at point A on the affidavit Ex.PW1/C saying that she had submitted the same in the police station when Vinay's uncle had lodged the complaint against her. She was aware about the contents of the affidavit before signing the same. She deposed that the contents of her statement u/s.161 Cr.PC dated 14.10.2014 Ex.PW1/D are true and correct except the portion where it is mentioned that she told the police officials that if they would apprise her family members about the present case, it would not be good for them. She admitted that she has not mentioned about the rape incident dated 04.8.2013 either in her complaint Ex.PW1/A or in her statement u/s.164 Cr.PC Ex.PW1/B. She also admitted that she has not mentioned in her aforesaid two statements that she and the accused used to have physical relations with each other in a flat in gali no.11 and the accused Vinay always used to tell her that he would marry her. She also admitted that she has not mentioned in SC No.50/15. Page 7 of 19 her aforesaid two statements that she had come to know on 15.2.2014 that accused's engagement ceremony is to take place on that day or that accused confirmed the said fact to her and asked her to meet him at Ramphal Chowk or that the accused told him that he would not marry that girl and would run away with her the next morning and would solemnize marriage with her in court outside Delhi or that she made calls to the accused the next morning but he did not pick up the phone till 9 a.m. or that when she made call at 9 a.m. phone was picked up by accused Rinku saying that the accused has gone out or that she made call again at 10 a.m. which was again answered by Rinku saying that the accused would not marry her.
12. She also admitted that Raj Nagar is a crowded area and there are residential houses throughout in Gali No.2. She deposed that she did not tell any passer-by or any resident of that gali that accused Pawan and Rinku are threatening her. She did not lodge any complaint with the police regarding threats given to her by Pawan and Rinku. She stated that she apprised her parents about her relations with accused Vinay for the first time on 07.10.2014 when she alongwith her sister left for the police station to lodge the complaint. She could not explain the reason why her parents did not accompany her to the police station. She further stated that she did not make any call at telephone no.100 and also did not lodge any complaint against the accused on 05.10.2014. she could not say why she did not do so. She stated that she apprised her parents and her brother about the rape incident on the same day i.e. 05.10.2014 itself and her parents told her not to lodge any complaint as she would be defamed. However, she SC No.50/15. Page 8 of 19 decided to lodge a complaint and accordingly went to police station on 07.10.2014. She admitted that the preparations for fair on account of Dusshera festival and Diwali festival were going on in the park on that day. According to her, the accused raped her on the front passenger seat of the car. He had locked the doors of the car from inside. She admitted that the locks could have been opened from inside the car.
13. She further deposed that the park in Sector-10, Dwarka, where she had been raped by the accused inside the car can be seen from the window of this court. She admitted that training for driving is imparted in this park and around 20 to 25 cars can be found in the park at any given time. She also admitted that the construction of a huge building is going on by the side of this park and there is a DTC Bus Depot as well as office of driving licensing authority adjacent to the park. She also admitted that there is a wide road in between the park and the licencing authority office which is a live road and starts from Metro Station Sector-10, Dwarka. She deposed that she had made call to accused Vinay on that day i.e. 05.10.2014 from an STD Booth as her mobile phone was out of order. She could not give the description of that STD Booth but stated that it was in a retail shop near the house of her friend in Raj Nagar.
14. She deposed that she had worn the same panty on 07.10.2014 also, when her medical examination was conducted in DDU Hospital, which she had worn on 05.10.2014 and had not changed it since then. At the same time, she admitted that she had changed the panty again on 06.10.2014 and had worn the SC No.50/15. Page 9 of 19 same panty again on 07.10.2014 without washing it. She also stated that she did not consult any doctor after rape incident dated 05.10.2014 and did not take any contraceptive tablets. She admitted not having mentioned in her statement u/s.164 Cr.PC Ex.PW1/B that accused Pawan and Rinku had issued threats to her on 08.10.2014.
15. PW2 is the Duty Officer, who had registered the FIR in the police station on 07.10.2014, proved its copy as Ex.PW2/A. He proved his endorsement on the rukka as Ex.PW2/B.
16. PW3 is Const. Rajeev, who alongwith IO WSI Shiksha had taken accused Vinay to DDU Hospital for medical examination on 12.11.2014.
17. PW4 is Const. Vinod, who was the Investigating Officer of this case on 12.12.2014 and had sent the exhibits to FSL through Const. Ashok Kumar.
18. IO WSI Shiskha has appeared as PW5. In her examination in chief, she has deposed regarding the steps taken by her in the investigation of this case which need not to be reiterated. In the cross examination, she stated that the prosecutrix had not made any call at telephone no.100 before submitting the complaint in the police station. She admitted that the spot where the prosecutrix is stated to have been raped by accused is inside the DDA Park, Sector-10, Dwarka. She admitted that a fair was going on in the park at that time and the park was frequented by several public persons during day time. According SC No.50/15. Page 10 of 19 to her, it was improbable that a lady can be raped in the park during the day time. She further deposed that she did not meet the parents of the prosecutrix during the course of investigation as prosecutrix had prohibited her from doing so. She admitted that the prosecutrix did not cooperate fully with her in the investigation of this case and had told her that she has filed the complaint only to show to the public that she had not taken money from the accused in lieu of settlement entered by her with the accused Vinay Sharma on 17.2.2014 which is contained in the affidavit Ex.PW1/C. She also admitted that the prosecutrix had threatened her that she would file a complaint against her also, if she apprised her parents about the present case.
19. PW6 is Const. Mukul, who had taken the exhibits of the case to FSL on 28.10.2014.
20. PW7 is Dr. Kamal Kant Jain, who had conducted medical examination of accused Vinay Sharma and proved the MLC prepared by him as Ex.PW7/A.
21. PW8 is Dr. Babita, who had examined the prosecutrix in the Casualty of DDU Hospital on 07.10.2014 and proved his MLC prepared by her as Ex.PW8/A.
22. Undoubtedly, In cases involving the offence of rape, the testimony of prosecutrix is the most vital and material piece of evidence. Her statement, if found to be worthy of credence and reliable, requires no corroboration and conviction can be based upon her sole testimony. However, if for some reasons, the court is SC No.50/15. Page 11 of 19 hesitant to place implicit reliance upon the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony, short of corroboration required in case of an accomplice. If the court finds it difficult to accept the version of the prosecutrix, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. At the same time, it is to be kept in mind by the court that like in all criminal cases, in the case of rape also, the onus is always on the prosecution to prove affirmatively all the ingredients of the offence which it seeks to establish and such onus never shifts. It is not for the accused to explain as to why and how the victim and other witnesses have testified falsely against him. There is initial presumption of innocence of the accused and the prosecution has to bring home the offences against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
23. In the instant case, the written complaint Ex.PW1/A submitted by the prosecutrix in the police station is a half page complaint. Its contents has already been reproduced in paragraph no.2 herein-above. Only one incident of rape is mentioned therein which is stated to have been committed by the accused on 05.10.2014 in his car in the park, Sector-10, Dwarka. In her statement u/s.164 Cr.PC Ex.PW1/B, the prosecutrix has mentioned that the accused had been engaging in physical relations with her on the promise of marriage for the last one and a half years. Then she has mentioned the rape incident dated 05.10.2014 in the said statement.
24. It is for the first time in her deposition before this court SC No.50/15. Page 12 of 19 as PW1 that she states that the accused had committed forcible sexual intercourse with her on 04.10.2013 also at his house. She has not mentioned about this incident in any of her statements during the course of investigation or in her written complaint Ex.PW1/A. Even no explanation has come from her side as to why she did not mention about the said rape incident in her earlier statements. Hence this is a clear improvement upon her previous statements and it is not only difficult but also against the settled principles of criminal law to believe the said rape incident dated 04.10.2013.
25. The prosecutrix has stated in her statement u/s.164 Cr.PC Ex.PW1/B that when she came to know that the accused is going to marry some other girl, she contacted his uncle and told him that she would not allow this marriage to happen, upon which accused's uncle lodged a complaint against her in the police station requesting for their safety. She has not stated this fact in her examination in chief before this court. However, in her cross examination, she admitted that she had executed the affidavit Ex.PW1/C in the police station pursuant to the aforesaid complaint lodged by accused's uncle. She stated that she was aware about the contents of the said affidavit before signing the same. It is to be noted here that in the said affidavit, prosecutrix has stated that she had fallen in love with the accused and now both have mutually agreed that they would not remain near each other in future and she would not initiate any legal proceedings against the accused in future. She has nowhere mentioned in the said affidavit that the accused had raped her at his house on 04.8.2015 or was having physical relations with her on the promise of marriage. She SC No.50/15. Page 13 of 19 has merely stated that she was in love with the accused and has now agreed to remain away from his life. Therefore, it cannot be believed now that the accused had raped her on 04.8.2013 or was having physical relations with her on the promise of marriage.
26. Further it is evident from the bare perusal of the testimony of the prosecutrix that she had made enormous improvement upon her previous statements recorded during the course of investigation. She does not qualify as a sterling witness and hence it would be dangerous to place any implicit reliance upon her version. Her statement in examination in chief that she came to know from a neighbouring lady that accused's engagement ceremony is on 15.2.2014; that she made a call to accused who confirmed to her about his Ring Ceremony; that the accused told her that he would not marry that girl but would run away with her the next morning; accused has made a call to her at about 12 midnight asking her to be ready in the morning to run away alongwith him; that the accused told that they would solemnize marriage in court outside Delhi; that she rose up early in the morning on 16.2.2014 and started making calls to the accused but he did not pick up the call till 9 a.m.; that her call to the accused at 9 a.m. was picked up by his friend Rinku saying that the accused has gone out; that she again made call to accused at 10 a.m. which was again answered by Rinku who told her that the accused does not want to talk to her and would not marry her, is not mentioned in any of her statements recorded during the course of investigation and therefore being an improvement upon her previous statements, cannot be taken into consideration.
SC No.50/15. Page 14 of 1927. The prosecutrix has deposed that she stopped talking to the accused after he got married to the girl named Manju on 17.2.2014. It needs note here that she had executed the affidavit Ex.PW1/C also on the same day i.e. 17.2.2014 in the police station. She has further deposed that the accused met her on 03.10.2014 and asked her to make a call to him. She made call to the accused on 05.10.2014 which was his birthday and extended birthday wishes to him. She has further stated that the accused asked her to meet him near Friday market and upon reaching there, accused took her in his Hyndai i-10 car to the park in Sector-10, Dwarka, where he committed forcible sexual intercourse with her inside the car.
28. It is nowhere clear from her testimony as to what was the occasion for the prosecutrix to meet the accused on 03.10.2014. Was it a chance meeting or fixed meeting. It does not appeal to reason as to why the prosecutrix would meet the accused when she had given in writing by way of an affidavit Ex.PW1/C that she would not keep any relation with him after his marriage. It is also not understandable why did she obey the accused in making a call to him on 05.10.2014. Assuming that the accused had something to say to her, then also there was no reason or occasion for the prosecutrix to go and meet the accused near Friday market, when the accused had already got married and she had given in writing in the police station that they would not come close to each other in future. She should have straightway refused to either talk to accused or to meet him anywhere. The conduct of the prosecutrix herself becomes suspect SC No.50/15. Page 15 of 19 in these circumstances which makes her version doubtful.
29. Further it is very difficult to believe that the accused would commit forcible sexual intercourse with her in broad day light at about 4 p.m. in DDA Park in Sector-10, Dwarka, which was frequented by various public persons and is not an abandoned park. She has herself deposed that some people were present in the park erecting 'Shamiyana' for fair to be held in the park. She has admitted in the cross examination that the training for driving is imparted in this park and around 20 to 25 cars can be found in the park at any given time. She has also admitted that there is a DTC Bus Depot and an office of driving licensing authority adjacent to the park. She also admitted that preparations for fair on account of Dusshera festival and Diwali festival were going on in the park on that day. In view of this ground situation, the version of the prosecutrix that the accused raped her on the front passenger seat of the car in the said park in broad day light is neither credible nor trustworthy. She has admitted that the locks of the doors of the car could have been opened from inside. However, it appears that she did not make any efforts to either open the doors of the car and to run away before she could be subjected to sexual assault by the accused. It is also evident that she did not raise any alarm and did not shout for help, knowing that there are several public persons present in the park who would come to her rescue. She neither made any call at telephone no.100 nor lodged complaint against the accused on the said date. The complaint has been lodged by her on 07.10.2014. The prosecution has failed to explain the delay of two days in registration of the FIR. All this shows that either no such incident SC No.50/15. Page 16 of 19 had happened at all or she was a consenting party to the incident of sexual intercourse but later on gave it the colour of rape.
30. The prosecutrix has deposed that she apprised her parents and brothers about the rape incident on 05.10.2014 itself but her parents told her not to lodge any complaint as she would be defamed. However, at other place in the cross examination, she has deposed that she told her parents about her relations with the accused for the first time on 07.10.2014 when she alongwith her sister left for the police station to lodge the complaint. It is manifest that the parents of the prosecutrix did not accompany her to the police station and she was also at a loss to give any reason for the same. It appears that either she had not apprised her parents about her sexual relations with the accused or that she did not have courage to narrate the fabricated rape incident to them.
31. I may also note here that the IO (PW5) too has deposed that it was improbable that a lady can be raped in the said park during the day time as the park was frequented by various public persons during day time. She has further deposed that the prosecutrix did not permit her to meet her parents during the course of investigation and the prosecutrix did not cooperate fully with her in the investigation of this case. She has further deposed that the prosecutrix told her that she had filed the complaint only to show to the public that she had not taken money from the accused in lieu of settlement entered by her with the accused Vinay Sharma on 17.2.2014 which is contained in affidavit Ex.PW1/C. She also deposed that the prosecutrix had threatened SC No.50/15. Page 17 of 19 her that she would file a complaint against her also, if she apprised her parents about the present case.
32. Therefore, from the evidence of the IO also, it is evident that no rape incident had at all taken place with the prosecutrix on 05.10.2014 and she had lodged a false complaint against the accused only to show to the public that she had not taken any money from the accused in lieu of settlement dated 17.2.2014. It is for this reason that she kept her parents in dark about lodging of complaint and also did not permit the IO to meet her parents during the investigation and threatened her not to apprise her parents about the present case.
33. When the evidence on record does not show that any rape incident had taken place with the prosecutrix on 05.10.2014 in DDA Park, it follows that she has levelled false allegations against accused Pawan and Rinku, they being the friends of accused Vinay Sharma. Further the prosecutrix has not mentioned in her statements during the course of investigation that accused Rinku had met her on 08.10.2014 near her house and threatened her that he would throw acid upon her if she lodged any complaint against accused Vinay. I may also note here that the prosecutrix had already lodged the complaint on 07.10.2014 and therefore, she would have told accused Rinku that she has already lodged the complaint but she has deposed that she did not tell Rinku that she has already lodged the complaint.
34. In view of the aforesaid discussion, it is limpid that the version of the prosecutrix does not inspire any confidence of the SC No.50/15. Page 18 of 19 court. The same is neither credible nor trustworthy. Her testimony is replete with embellishments and contradictions. She has made various improvements upon her previous statements. She does not qualify as a sterling witness. No other evidence on record lends support or assurance to her version.
35. All the accused are, therefore, liable to be acquitted and are hereby acquitted as such.
Announced in open (VIRENDER BHAT)
Court on 21.9.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.50/15. Page 19 of 19