Delhi District Court
State vs Mr. Dheeraj Kumar on 24 December, 2014
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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 : 97/2014.
Unique Case ID Number : 02401R0379202014.
State versus Mr. Dheeraj Kumar
Son of Mr.Devki Nandan
Resident of B-35, Nihal Vihar,
Chander Vihar Ph-II, Delhi.
First Information Report Number : 458/14
Police Station Nihal Vihar
Under sections 376/506 of the Indian Penal Code.
Date of filing of the charge sheet before : 08.08.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 28.08.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 24.12.2014.
Date of judgment : 24.12.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. R.K.Sharma and Ms. Sarla
Sharma.
Prosecutrix is present.
Ms.Poonam Sharma, counsel for Delhi Commission for
Women.
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Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar,
Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 1 of 14 ::-
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JUDGMENT
1. Mr.Dheeraj Kumar, the accused, has been charge sheeted by Police Station Ranhola, Delhi for the offence under sections 376/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 25.04.2014 at about 8.00 pm at the house of the prosecutrix (address mentioned in the file and withheld to protect the identity of the prosecutrix), he committed house tresspass in order to commit the offence of rape and thereafter he committed rape upon the prosecutrix (name mentioned in the file and withheld to protect her identity) and also prepared her video and threatened prosecutrix that if she disclosed the incident of rape to anyone, he would make her video public.
2. After completion of the investigation, the charge sheet against accused Mr.Dheeraj Kumar was filed before the Court of the learned Metropolitan Magistrate on 08.08.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 28.08.2014.
3. After hearing arguments, charge for offence under sections 451, 376 and 506 of the IPC was framed against the accused Mr.Dheeraj Kumar vide order dated 28.08.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the prosecutrix as PW1.
Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 2 of 14 ::-
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5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. The prosecutrix, as PW1, has deposed that she along with her husband and one son have been living at the address of the place of incident (address mentioned in the file and evidence and withheld to protect the identity of the prosecutrix) as a tenant for the last one and half year at a monthly rent of Rs. 1800/- excluding electricity charges. The said house belongs to the accused Mr.Dheeraj Kumar. On 12.07.2014, there was a quarrel between her and Ms. Sangeeta, wife of accused, on account of non- payment of rent by her. Her son Ashish was about 15 months old at that time and he was going repeatedly to Ms. Sangeeta but she was not talking to him. She inquired from Ms.Sangeeta as to why she was not talking to her son. During the quarrel, both of them had beaten each other. She had received injury on the left part of her face. Ms.Sangeeta told her that she had prepared her video. She is not aware about the contents of the same. Accused Mr.Dheeraj Kumar was away to his work at that time and she did not have any talk, argument or fight with him. She called her husband from his work and Ms. Sangeeta called her husband i.e the accused. On arrival, accused Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 3 of 14 ::-
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Mr.Dheeraj Kumar also told her that her video had been prepared but he did not tell me what was it about. His wife told her that a wrong video (galat video) has been made. As both accused and his wife had insulted her (bezati ki), out of anger, she lodged a complaint against accused Mr.Dheeraj Kumar. She along with her husband had gone to the Police Station and one Ms. Sonia who was another tenant of the accused also came to the Police Station as she also had to make a complaint against him. She was scared when the wife of accused had told her that a galat video was prepared and accused had also said that a video had been prepared. Due to this fear, she had made a complaint of rape by the accused to the Police although the accused had not raped her. She is not aware about the nature of the complaint made by Ms. Sonia. The police had called the accused and his wife to the Police Station. His wife had insulted her even in the Police Station and told her that she had been shown her video by the accused. She had made the complaint to the police (Ex. PW1/A) and it bears her signatures at point A. (The Addl. PP has submitted the FSL report regarding the examination of the mobile phone of accused have been received which was not in favour of the prosecution.) She was produced before learned Metropolitan Magistrate and her statement under section 164 of the Criminal procedure Code (hereinafter referred to as the Cr.P.C) (Ex.PW1/B) was recorded by learned Metropolitan Magistrate. She was taken to Sanjay Gandhi Memorial Hospital for her medical examination by the police and she had refused for her internal examination as no offence of rape by accused took place with her. The accused was arrested by the police in her presence and his arrest memo ( Ex.PW1/C) and personal search memo ( Ex.PW1/D) were prepared. She has prayed that accused may be acquitted as he has not committed any offence against her. Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 4 of 14 ::-
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7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
8. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that she had made her complaint to the police (Ex.PW1/A) and she signed the same after reading the contents of the same. She denied the suggestion that whatever had happened with her, she stated the same before the police in her complaint (Ex.PW1/A). She has denied the suggestion that she did not make her statement before the police out of fear. She denied the suggestion that she made her statement before learned Metropolitan Magistrate (Ex.PW1/B) as some settlement had been arrived at between her and the accused. She denied the suggestion that on 25.04.2014 at about 8.00pm in her house, the accused committed rape upon her and also prepared her video and threatened her that if she disclosed the incident of rape to any one, he would make her video public. She denied the suggestion that she is not supporting the prosecution case and deposing falsely due to the settlement arrived at, between her and the accused.
9. She has also been cross examined on behalf of accused and admitted that the accused has not committed any offence against her. She admitted that accused is innocent. She again prayed that he may be acquitted. She admitted that even today she is residing in the house of accused as his tenant.
10. Thereafter, Court questions has been put to the Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 5 of 14 ::-
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witness/prosecutrix which are as follows:
Court Question no.1 :Has the accused raped you ?
Ans:-No.
Court Question no.2 : Is the complaint/statement made by you to the police Ex.PW1/A correct or false ?
Ans:-It is a false complaint.
Court Question no.3 : Were you aware that when you make a complaint of rape against the accused, he would be arrested ? Ans:- Yes, I was aware that the accused would be arrested on my false allegations of rape.
Court Question no.4 :Is it correct that you had made false allegations of rape against the accused to the police ? Ans:- Yes, I had made false allegation of rape against him.
Court Question no.5 :Is it correct that you had told the Ld. MM that the accused has not raped you ?
Ans:- Yes.
Court Question no.6 :-Despite knowing that the accused has not committed any offence, you have made false allegation of rape against him to the police due to which he has been arrested in the present case, is it correct ?
Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 6 of 14 ::-
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Ans:-Yes, despite knowing that the accused has not committed any offence, I have made false allegation of rape against him to the police due to which he has been arrested in the present case.
11. The prosecutrix, has not deposed an iota of evidence of the accused committing the offence of house tresspass, raping and threatening her at all. She has not deposed anything incriminating against the accused Mr.Dheeraj Kumar. In fact, she has deposed that the accused had not raped her and she had levelled false allegations against him to the police.
12. In the circumstances, as PW1, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.
13. Statement under section 313 of the Cr.P.C the accused Mr. Dheeraj Kumar 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. She has categorically denied that the accused had raped her.
Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 7 of 14 ::-
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14. 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.
15. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that the prosecution case cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
16. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
17. Consequently, no inference can be drawn that the accused Mr.Dheeraj Kumar are guilty of house tresspass, raping and threatening the prosecutrix. There is no material on record to suggest that the prosecutrix was ever raped and threatened by the accused Mr.Dheeraj Kumar who committed house trespass. No case is made out against the accused Mr.Dheeraj Kumar as there is no incriminating evidence against him. In fact the prosecutrix has deposed that accused Mr. Dheeraj Kumar not raped her.
Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 8 of 14 ::-
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18. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused 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.
19. Consequently, no inference can be drawn that accused Mr. Dheeraj Kumar is guilty of the charged offence under sections 451, 376 and 506 IPC. There is no material on record to show that Mr.Dheeraj Kumar on on 25.04.2014 at about 8.00 pm at the house of the prosecutrix committed house tresspass in order to commit the offence of rape and thereafter he com- mitted rape upon the prosecutrix and also prepared her video and threatened prosecutrix that if she disclosed the incident of rape to anyone, he would make her video public.
20. From the above discussion, it is clear that the claim of the prose- cution is neither reliable nor believable and is not trustworthy and the prose- cution has failed to establish the offences of house tresspass, threat and rape against accused. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place.
21. 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.Dheeraj Kumar for the offence under sections 451, 376 and 506 of the IPC.
Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 9 of 14 ::-
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22. Consequently, accused Mr.Dheeraj Kumar Singh is hereby acquitted of the charge for the offence under sections 451, 376 and 506 IPC.
23. Compliance of section 437-A Cr.P.C. is made in the order sheet.
24. Case property be destroyed after expiry of period of limitation of appeal.
25. 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.
26. Here it may also be mentioned that although the prosecutrix has levelled allegations of the accused committing house tresspass and of her be- ing raped and threatened by the accused in her complaint to the police (Ex.PW1/A) on 12.07.2014 but on 21.07.2014, in her statement under sec- tion 164 of the Cr.P.C (Ex.PW1/B) she has stated that out of anger, she had stated that the accused had physical relations with her but she had not had any relations with him nor anything happened between them. In her evidence Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 10 of 14 ::-
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before the Court, the prosecutrix has deposed that as accused and his wife had insulted her, out of anger, she lodged a complaint against the accused and out of fear that accused and his wife had told her that her galat video was prepared, she made a complaint of rape although accused has not raped her.
27. It is clear from the evidence of the prosecutrix that she has made a false complaint of rape against the accused knowing fully well that he has not raped her. She has also levelled allegations of her galat video being pre- pared but it is an admitted fact that no such material has been recovered from the accused or at his instance. A mobile phone of the accused was seized and it was examined in the FSL and no obscene material was found in the same.
28. The FSL report which has already been received in the Court reads as follows:
"RESULTS OF EXAMINATION/OPINION Tablet phone marked Exhibit-1 was subjected to data retrieval however data of internal memory could not be retrieved in the laboratory.
The memory card of the phone was forensically imaged using validated " Encase software" . The data of memory card containing one relevant video file namely "P1010496.MOV" in the folder namely "Movie", The video file is not having scene of nude video.
The video file contains one identified video shot. There is no indication of alteration in the identified video shot on the basis of frame-by-frame examination."
Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 11 of 14 ::-
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29. The prosecutrix has also admitted that she has not made any com- plaint to any authority of the false implication of accused Mr.Dheeraj. She had given her no objection to the bail application of the accused by filing her affidavit to the same effect.
30. These facts make it apparently clear that the prosecutrix despite knowing that accused has not committed any offence against her, still falsely implicated him in a criminal case of very serious nature due to which she set the criminal machinery into motion and the police arrested the accused on 12.07.2014 and he remained behind bars till15.10.2014, when he was granted bail and his bail bond was accepted. The prosecutrix has also levelled false allegations of her obscene video being prepared and the mobile phone of the accused which was seized by the police, when examined by the FSL expert was not found to be containing any obscene material. She made a false com- plaint to the police due to which the police arrested the accused and put him in jail. She has given false information to the police, a public authority and made it use its lawful authority to to the injury of the accused.
31. The precious Court time has also been wasted in an admitted false case and the accused who has been prosecuted, was also taken into custody, and eventually acquitted vide judgment dated 24.12.2014.
32. That it appears to be a clear case of furnishing false information to the police, a public authority and made it use its lawful authority to the injury of the accused, and other offences, the Court deems it proper and appropriate to prosecute the prosecutrix for the above mentioned criminal Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 12 of 14 ::-
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offences in the interest of justice and making a mockery of the judicial system.
33. Such type of litigants as the prosecutrix who without any justi- fied reasons drag the matter for long duration or file false cases /FIRs should not be pardoned which has not only caused unnecessary harassment to the accused but has also caused wastage of the time of police who investigated the matter and more importantly caused wastage of previous Court time be- sides undermining the authority of law. False litigation is required to be curbed and stopped and the litigants such as the prosecutrix who has made false allegations of rape against the accused to settle personal scores or out of vengeance, should be prosecuted and punished. Perhaps it is now time to stop the abuse of innocent men by unscrupulous women.
34. It cannot be ignored that the accused, due to this false case, the accused has suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implica- tion may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. It may not be possible to restore his dignity and honour nor compensate him for the humiliation, misery, distress and monetary loss. However, the fact that when the prosecutrix who has lodged a false case of rape against him is prosecuted and punished, the same may give him some solace. He may also file any case for damages against the prosecutrix, if advised.
35. As the prosecutrix has committed the offence of furnishing false information to the police, a public authority and made it use its Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 13 of 14 ::-
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lawful authority to the injury of the accused, and other offences, as dis- cussed 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, West, Tis Hazari Courts, Delhi for prosecution of the prosecutrix for furnishing false information to the police, a public authority and made it use its lawful authority to to the injury of the accused, and other of- fences,. The complaint against the prosecutrix be made separately and Mr.Hira Singh Latwal, Senior Judicial Assistant-Reader is hereby au- thorised under section 195 of the Cr.P.C. by the undersigned to make the complaint before the Court of the learned Chief Metropolitan Mag- istrate, West, Tis Hazari Courts, Delhi today itself.
36. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
37. 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 24th day of December, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 97 of 2014.
Unique Case ID Number : 02401R0379212014.
FIR No. 458/2014, Police Station Nihal Vihar, Under sections 376/506 of the Indian Penal Code.
State versus Dheeraj Kumar. -:: Page 14 of 14 ::-