Delhi District Court
State vs . (1) Sardar Bhupender Singh on 20 October, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 126/2011
Unique Case ID: 02404R0222122011
State Vs. (1) Sardar Bhupender Singh
S/o late Sh. Surain Singh
R/o H. No. 878, Rani Bagh, Delhi.
(Acquitted)
(2) Sant Devi
W/o Sardar Bhupender Singh
R/o H. No. 878, Rani Bagh, Delhi.
(Discharged on 07.10.2011)
(3) Mukul Sharma
S/o Sh. Maya Ram
R/o D766, Saraswati Vihar, Delhi.
(Discharged on 07.10.2011)
FIR No. : 123/2011
Police Station : Rani Bagh
Under Section : 376(2)(g)/342/109/323/506 Indian
Penal Code
Date of committal to Sessions Court : 24.09.2011
Date on which orders were reserved : 05.10.2012
Date on which judgment pronounced : 20.10.2012
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 1 of 59
JUDGMENT
Brief Facts:
(1) As per the allegations, between August 2004 and July 2006 the accused Sardar Bhupender Singh being the lawyer of the prosecutrix 'K' (name of the victim is withheld being the case under Section 376 IPC) wrongly confined her in his office and residence from time to time and during the said period he committed rape upon her. It is also alleged that during this period of confinement, the accused Bhupender Singh also criminally intimidated the prosecutrix 'K'.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 10.5.2011 the prosecutrix 'K' made her complaint to the police at Police Station Rani Bagh wherein she alleged that she was residing at House No. 733, 3rd Floor, Rishi Nagar, Rani Bagh, Delhi, along with her parents.
On 22.4.2001 she got married to Gurpeet Singh S/o late Ujagar Singh R/A3, Rana Pratap Bagh but in the ear 2003 due to differences she made a complaint against him in the CAW Cell, Nanakpura. The matter could not be resolved there and therefore a case under Section 498A/406 IPC was registered on her complaint at Police Station Saraswati Vihar and she engaged a counsel D.K. Aggarwal, Advocate for assistance and defence who was pursing her case in the State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 2 of 59 court. One day another advocate Sardar Bhupender Singh (the present accused) met her mother and told her that since he was Sikh and they were also Sikh being a fellow Sikh he would pursue her case in better manner, charge less money and ensure that the case is settled expeditiously. Her mother was taken in by his talk and she engaged Bhupender Singh in place of D. K. Aggarwal and he started calling her and her mother daily but after some time he only began to call her. It is alleged that the accused Bhupender Singh used to call her to his house at 9 AM in the morning and used to keep her there till 10 PM and one day he embraced her and began to kiss her and when she resisted he told her that she was like a daughter to him and on hearing this she kept quiet and did not say anything. The prosecutrix has alleged that one day he asked her to accompany him to the Court in his car and made her sit in his car and when the car reached a lonely place on a hill, he stopped the car whose glass panes were covered with black films and told her that he liked her and also told her that they shall ostensibly behave like a father and daughter and he shall not create any trouble for her. The prosecutrix further told the police that when she refused to agree, he (accused Bhupender Singh) threatened to kill her daughter, which put her under fear and thereafter the accused established physical relations with her by force and told her that he was not happy with his wife as she had become old and was not giving him any physical pleasure. State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 3 of 59 He told her that he was her counsel and only he could settle her court case and if she does not agree to what he says, he would get her daughter killed. It is alleged that on one occasion the accused took her to his flat at Vasant Vihar and forcibly had sex with her and told her that he had also told his wife about her and she has no objection. His wife told her that she should keep him happy, agree to what he says ans she will see to it that my court case is finished soon. The accused got opened her joint account with his wife at the Oriental Bank of Commerce and his wife also used to beat her up (the prosecutrix). The prosecutrix has also alleged that when he (accused Bhupender Singh) used to make forcible physical relations with her, Advocate Mukul Sharma used to keep a watch and when she attempted to stop the sexual harassment upon her and told him that she would not allow forcible physical relations anymore, the accused Bhupender Singh told her that she cannot do anything to him since he was holding bank cheques signed by her, blank papers and other documents and it is on this pretext that Bhupender Singh maintained forced physical relation with her from August 2004 till July 2006 and repeatedly committed rape upon her. According to the prosecutrix, she could not tell anything to anyone due to the concern about the safety to her daughter and her own sense of womanly modesty and continued to live in the house of her parents. She has stated in her complaint that on January 14, 2011 her parents arranged her second State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 4 of 59 marriage and when Sardar Bhupender Singh came to know of this he reached her matrimonial home and told her to make physical relation with him or otherwise he would wreck her second marriage. It is also alleged by the prosecutrix 'K' that she was alone at her house at that time and since she felt that her future was at the verge of being spoiled, she confided all these things to the members of her family who gave her encouragement. The prosecutrix has further alleged that the accused Sardar Bhupender Singh has spoiled her life by forcibly making physical relations with her from August 2004 to July 2006 and legal action be taken against Advocate Mukul Sharma since he has also helped him in the wrongful activity and also against his wife Sant Dasi who has also helped him in this wrongful activity. (3) On the basis of the above statement of the prosecutrix 'K', present FIR was registered, the accused persons were arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(4) Charge under Section 342/376/506 Indian Penal Code were settled against the accused Sardar Bhupender Singh to which he pleaded not guilty and claim trial. However, the accused Mukul Sharma and Sant Dasi were discharged vide order dated 7.10.2011. State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 5 of 59
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as twelve witnesses:
Public Witnesses:
(6) Baljeet Singh has deposed that he is residing at the aforesaid address comprising his family including her parents, wife and son and he is working as Sales Manager at Print Image Technology, situated at Naraina, Delhi. According to him he was married to Kanwal Preet Kaur on 14.01.2011. He has deposed that it was in the last week of February, 2011 on Sunday when he was at the house of his inlaws when he received a telephone call from his father informing he that somebody wanted to see him. According to the, the accused asked him to see him (witness) and to come at Mother Dairy, Sant Nagar, Rani Bagh situated near his house and thereafter, he came to Mother Dairy where he (witness) met his father. His father was present there along with one other gentleman whose name he later on came to know was Sardar Bhupender Singh, (correctly identified by the witness). The witness has deposed that his father informed him that Sardar Bhupender Singh wanted to speak to him regarding some court cases of his wife Kanwalpreet Kaur. According to the witness, he stood there at the mother dairy and spoke to Bhupender Singh who gave him the details of the various court cases of his wife Kanwalpreet Kaur regarding cheque State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 6 of 59 bouncing with Sardar Bhupender Singh. The witness has further deposed that the accused Sardar Bhupender Singh also told him that in case he wanted to marry Kanwalpreet Kaur, he (witness) should had made inquiries her back ground and court cases on which he (witness) told Bhupender Singh that he had already married Kanwalpreet and hence of what was the use of all this now. (7) In his cross examination by Ld. Defence Counsel, the witness has deposed that as on date his wife is residing with her parents and there is no marital discord between him and his wife Kanwalpreet Kaur. He has admitted that Kanwalpreet Kaur is residing with her parents at present but has explained that it is only because of the court cases as she is required to meet her lawyers frequently. The witness has admitted that after the marriage his wife used to stay with him and his marriage with Kanwalpreet Kaur is his second marriage as his first wife had expired. According to the witness, the marriage was mediated through the local gurudwara situated at Sant Nagar, Rani Bagh through the marriage bureau inside the gurudwara with facilitates marriages. The witness has deposed that at the time of the marriage he was not informed about the previous court cases of his wife and the reasons for her divorce and has voluntarily explained that he was only told that she was a divorcee with a daughter. According to him, the daughter of his wife from the first marriage remains with his in laws i.e. with her nana State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 7 of 59 nani. He has deposed that the marriage was solemnized within a month and he did not check any background of his wife or her family. He admits that during this period Bhupender Singh had never come to him or told him about any court cases and has voluntarily explained that it was for the first time in February 2011 that he met him and informed him of the same. The witness has denied that Bhupender Singh had never met him in February, 2011 to inform him about the court cases of his wife. He admits that Bhupender Singh has never misbehaved with him or issued any threats to him at any point of time.
(8) PW8 Paramjeet Kaur has deposed that she is residing at the given address for the last six years along with her family comprising of her husband Harbans Singh, her daughter Kanwalpreet Kaur, her son Parminder Singh, her daughter in law Gurmeet Kaur, her daughter Ravleen Kaur, her son Guneet Singh and her grand daughter (daughter of Kanwalpreet Kaur) whom she had adopted as her daughter namely Ridhampreet Kaur. According to the witness, her daughter 'K' was married to Gurpreet Singh on 22.04.2001 resident of Rana Pratap Bagh, Delhi, but she had a matrimonial dispute with Gurpreet Singh since the year 2003 after which 'K' starting living with her. According to the witness, they all filed an application in CAW Cell, Nanak Pura, connected with dowry harassment which application was sent to Police Station Saraswati State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 8 of 59 Vihar where case U/s 406/498A was registered and the case was put into court, where her daughter engaged one Sh. D. K. Aggarwal, Advocate. She has deposed that during one of the court appearances, she met Sardar Bhupender Singh in the same court where their case was pending and Sardar Bhupender Singh told them that he would take care of the case of her daughter and would also charge less fee.
According to the witness, he also told them that he is a Sikh and they were also Sikhs and therefore he would diligently pursue her daughter's case. The witness has deposed that she fell into his trap and handed over her daughter's case file to him and engaged him as counsel and thereafter Sardar Bhupender Singh, (accused correctly identified by the witness) started calling them to his house to discuss the court case. However, thereafter he started calling her daughter 'K' alone to his house on the pretext of discussing the court case. According to the witness, the accused used to call her daughter in the morning at 9 AM and leave her by 10 PM and it was only when she used to call him that he sent her back. The witness has deposed that in the year 2011, her daughter 'K' disclosed to her that on one occasion Bhupender Singh had called her to his house and thereafter started kissing her and when she objected he told her that she was like his daughter and it is for this reason that her daughter kept quite. According to the witness, her daughter also informed her that on one occasion, Sardar Bhupender Singh took her daughter with him to the State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 9 of 59 court in his car and on the way finding a lonely spot, he stopped the car and used forced on her daughter (jor jabardasti karne lage) to which her daughter objected. According to the witness, on this the accused threatened her daughter saying " jayda chilage to mein teri daughter ko marwa donga aur tu mera kuch nahi kar sakti" and thereafter Sardar Bhupender Singh made physical relations with her daughter on number of occasions and he even told her daughter that his wife Sant Dasi was aware of this. The witness has deposed that her daughter also told her that on one occasion Sant Dasi told her that she should keep her husband happy and if she (prosecutrix) does so, she (Sant Dasi) would ensure that her cases are disposed off at the earlier. According to the witness, on some occasions when her daughter objected to the relationship, Sant Dasi used to beat her. The witness has deposed that Sardar Bhupender Singh has also kept his son and Lawyer Mukul Sharma with him at his house and whenever Sardar Bhupender Singh used to misbehave with her daughter, Mukul Sharma and his son Sawaranjeet Singh used to threaten her daughter saying that they have lot of material against her as they have got a large number papers, documents, cheques signed from (prosecutrix) which they would used in the court and get a favourable order against her (prosecutrix). The witness has deposed that Sardar Bhupender Singh had also opened a joined account with his wife Sant Dasi and her daughter and had been harassing and torturing her State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 10 of 59 daughter and exploiting her. The witness has deposed that on 14.01.2011 when the second marriage of her daughter was performed, Sardar Bhupender Singh also reached the house of in laws of her daughter and threatened her daughter saying that either she continues to make physical relations with him or else he would spoil her matrimonial life. The witness has deposed that her daughter came to her and informed her of all that she had undergone for the last many years.
(9) In her cross examination by Ld. Defence Counsel, the witness has deposed that marital discord of her daughter with the first husband was on dowry demand. According to the witness, she used to accompany her daughter on the various dates in the court cases but she cannot tell the details of the counsel who was representing her first son in law Gurpreet Singh. The witness has deposed that she had seen the counsel appearing for Gurpreet Singh in the court cases and she can identify him. Witness has thereafter admitted that it was the same counsel who is representing her and her daughter now in the present case and sitting along with her who was the counsel for Gurpreet Singh, but she does not know his name. The witness has deposed that for the first time, her daughter disclosed to her about Sardar Bhupender Singh, his wife and other persons and what had happened with her, after her marriage on 22.04.2011, and has voluntarily explained that it was because Sardar Bhupender Singh State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 11 of 59 had reached to her in laws from the second marriage. According to the witness, she does not recollect if her daughter had made a complaint against the lawyer of Gurpreet Singh who is now her lawyer. She is not aware if her daughter in her deposition made before the court on 05.12.2005 had alleged that her husband Gurpreet Singh and his lawyers had detained her daughter in the car and holding a knife on the neck of her daughter aged one and a half years due to which is reason her statement before CAW cell that she will not pursue the complaint was extracted which certified copy of the statement is EX PW 8/DX1. The witness has deposed that she is not aware if her daughter 'K' had filed a complaint against Sh. Naveen Yadav, Advocate who is the same counsel representing her in the Delhi Bar Counsel copy of which complaint is EX PW 8/DX2. The witness has is also not aware if Gurpreet Singh her son in law who had filed a recovery suit had also made allegations against her of sexual harassment and has voluntarily explained that she is not aware of any such suit and allegations. The witness admits that she is known to Granthi Paramjeet Singh of gurudwara at Sant Nagar. The witness has denied that the accused Bhupender Singh had been introduced to her and her daughter by Granthee Paramjeet Singh and has voluntarily stated that they had met the accused in the court. She has deposed that she had gone to the house of accused Bhupender Singh on number of occasions with her daughter. She has State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 12 of 59 further deposed that in the house of Bhupender Singh, she had seen his wife Sant Dasi, his son Sawaranjeet Singh and she did not see anybody else and has voluntarily explained that wife of the accused used to go on duty in the morning. The witness has admitted that prior to April, 2011, she was not aware of any such happenings with her daughter, nor she had any suspicion on the accused and his family or grievance against the accused except that her daughter used to return very late from his house. The witness has deposed that she often inquired from her daughter 'K' why she returned late and she told her that Bhupender Singh used to make her do the personal typing work from her and some times when his wife was not at home, he asked her to cook food as well. According to the witness, she is not aware if Sardar Bhupender Singh had filed a defamation case against her prior to April, 2011 and it is only thereafter that she had started making allegations against Sardar Bhupender Singh. The witness does not recollect if she had obtained a bail in the said case from the court of the Ld. MM on 22.04.2011 certified copy of surety bond is EX PW 8/DX3. She has denied that she has implicated the accused Bhupender Singh on false and created grounds only as a counter blast to the allegations made against her and her daughter in the other cases. The witness has also denied that she is deposing falsely on the instance of her daughter against whom Sardar Bhupender Singh had filed a case U/s 138 of N. I. Act only to State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 13 of 59 save her from legal consequences.
(10) PW9 is the prosecutrix 'K'. She has deposed that she was residing on the given address with her parents, brothers and sisters. According to the witness, her marriage was performed on 22.04.2001 with Gurpreet Singh S/o Late Shri Ujagar Singh R/o A3, Rana Pratap Bagh, Delhi but soon after the marriage there was a dispute between her and her husband and she filed a complaint in the year 2003 at the CAW Cell, Nanak Pura where the dispute could not be sorted out and the case was referred to PS Saraswati Vihar where FIR was registered U/s 498A/406 IPC against her first husband and his family. The prosecutrix has further deposed that later the matter was referred to the court where she engaged Mr.D.K. Aggarwal as Advocate to pursue to her court case. She has deposed that one day in the court of Ms. Nirja Bhatia, MM Delhi Sardar Bhupinder Singh (accused correctly identified) met her mother and told her that he was a Sikh/ Sardar and since they were also Sikhs he will pursue her cases properly and will also charge less from them. According to the witness, her mother was lured into his talks and she took the files of the case from the Shri D.K. Aggarwal Advocate and handed over the same to the accused Sardar Bhupinder Singh, Advocate. She has deposed that initially the accused used to call her and her mother at home to discuss the court cases but later he calling her alone and he used to call her at 9 AM and leave her at 10 PM from his house. She State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 14 of 59 has deposed that one day the accused Sardar Bhupinder Singh hug her and tried to kiss her and when she stopped him he told her that she was like his daughter, on this she kept quiet and did not object. She further deposed that on another occasion Sardar Bhupinder Singh asked her to accompany him to the court in his vehicle and she went with him and when the vehicle reached at an isolated spot on the pahari/ hilltop, the accused told her "tum mujhe acchi lagati ho aur main tumhe apna banana chahata hun". According to the witness, the windows of the vehicle were of black colour/ tainted and when she stopped him he threatened her to kill her daughter and thereafter forcibly committed rape upon her. The witness has deposed that the accused told her that in front of the world his relationship with her would be like father and daughter. (11) The prosecutrix has further deposed that one day he took her to a flat in Vasant Vihar when he did "jor jabaradasti " on her to which she objected but she could not stop him and he forcibly raped her. According to the witness, the accused told her "mai tumhara vakil hun aur tumhe meri baat maanni padegi tumhare court cases ko mai hi khatam kara sakta hun". The witness has deposed that the accused also told her that he had informed his wife about every thing who has otherwise grown old and did not give her any pleasure and that his wife Sant Dasi also told her to what her husband was saying. According to the witness, the accused also got opened a joint account State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 15 of 59 in her name along with his wife in the Oriental Bank of Commerce. The prosecutrix has deposed that when the accused Sardar Bhupinder Singh made physical relations with her, Mukul Sharma his Junior Advocate, used to be present outside the room and Sardar Bhupinder Singh also told her that Mukul Sharma was aware of their relations though she is not aware if Mukul Sharma actually knowing about the same or not but she found him outside the room. The witness has deposed that when she tried to stop Sardar Bhupinder Singh from making physical relations with her, he told her that she could not do anything against him because he was in possession of various blank cheques and blank papers which she had already signed. According to the witness, the accused also threatened her that in case if she opened her mouth he will kill her daughter. She has deposed that she kept quiet only to save her own honour, the honour of her family and the life of her daughter and did not tell about these incidents to anybody.
(12) The prosecutrix 'K' has further deposed that on 14.01.2011, her second marriage was performed with Sardar Baljeet Singh S/o Shri Charan Jit Singh R/o Sant Nagar, Sardar Bhupinder Singh came to know about the same, he reached the house of her in laws where she was alone at home he tried to commit rape upon her but when she stopped him he threatened to spoil her matrimonial life and in pursuance to above, he met with her second husband and State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 16 of 59 father in law and told them that he had been making physical relations with her. According to the witness, thereafter, her second husband Sardar Baljeet Singh asked her to leave his house and at present she was residing with her parents. She has further deposed that the accused had ruined her matrimonial life both with her first husband and also with her second husband and since the year August, 2004 till August, 2006 had been making physical relations and committed rape continuously with her.
(13) According to the prosecutrix, when the FIR was registered she was taken to the Bhagwan Mahavir Hospital for medical examination on 10.05.2011 but no Exhibits were taken and again on 02.06.2011 after the arrest of Sardar Bhupinder Singh, IO taken her to his house for identification of the vehicle but the said vehicle i.e. Esteem bearing No.6190 was not there in the house and on the next date she was called to the police station where she identified the Esteem Car in which the incident of rape had taken place which was seized vide memo Ex.PW9/A. The witness has deposed that in so far as Vasant Vihar flat is concerned she does not know its address nor she can tell its location. She has further deposed that even after the registration of the FIR, Sardar Bhupinder Singh has been continuously extending threats to her. (14) In her cross examination by Ld. Defence Counsel, the witness has deposed that she has studied till 12th Standard and has State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 17 of 59 voluntarily explained that she had also done graduation but she does not have the degree and she is a stenographer by profession. The witness has denied that Sardar Bhupinder Singh had not met her mother in the court and rather it was a Granthi Sardar Param Jeet Singh who introduced her mother after which her mother engaged Sardar Bhupinder Singh. Witness has admitted that she had received a statutory notice under the provisions of Negotiable Instruments Act in the year 2006 which was sent to her by Sardar Bhupinder Singh through his counsel Shri Jaswant Swaroop Sharma to her to which she had responded through her counsel Pandit Om Dutt Sharma which reply is Ex.PW9/DX1. The prosecutrix has admitted that her counsel Pandit Om Dutt Sharma also sent a communication dated 06.01.2007 to the accused which is Ex.PW9/DX2, bearing her signatures at various places MarkA. She admits that in the communication her lawyer had mentioned that the accused had been introduced through Granthi of the local Gurdwara and has voluntarily explained that before the introduction with the Granthi accused met them in the court. She has deposed that after D.K. Aggarwal, Advocate Shri H.S. Kohli, Advocate also come to represent to her in the court and has voluntarily added that he was not permitted by Sardar Bhupinder Singh to appear for her as he told Mr. Kohli he was holding her brief. She has denied that Mr. Kohli had never been stopped from appearing for her in the court. The witness has State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 18 of 59 admitted that in her earlier communications and replies, she had not made any mention about the sexual harassment by the accused and has voluntarily added that she did not mention about this because her first marriage has been spoiled and she had to bring up her daughter from her parent's house and she did not want to spoil their reputation. (15) The prosecutrix has further admitted that earlier to the year 2011, she had never mentioned this aspect of sexual harassment in any of the court cases/ petitions/ replies given by her including the petition filed before the Delhi High Court U/s 482 Cr.PC, certified copy of which is Ex.PW9/DX3 and has voluntarily added that she had mentioned this fact to the court in her statement U/s 313/ 281 Cr.PC in the case titled Bhupinder Singh Vs. Kanwal Preet Kaur U/s 138 N.I. Act which statement was recorded by the court on 29.07.2010. The prosecutrix admits that earlier to 29.07.2010 her statement was also recorded on 27.07.2010 and she did not make any such allegations on 29.07.2010. The certified copies of the statements dated 27.07.2010 and 29.07.2010 are Ex.PW9/DX4 and DX5. She has voluntarily explained that while she was making on her statements on 27.07.2010 she felt sick and therefore she did not give her complete statement and on the next date i.e. 29.07.2010 she gave her complete statement. The prosecutrix has denied that she had feigned ailment on 27.07.2010 in the court only on legal advice and later on 29.07.2010 she deliberately for the first time made false State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 19 of 59 allegations against Sardar Bhupinder Singh on the advice of her counsel. She admits that even in her second statement on 29.07.2010 Ex.PW9/DX5 she had not made any specific allegations against Sardar Bhupinder Singh and has voluntarily explained that she did not want to spoil her life and even now she would not have said anything but for the fact that Sardar Bhupinder Singh started interfering in her matrimonial life after her second marriage. The prosecutrix has admitted that in the Delhi High Court, Justice Dhingra had made queries from her in the open court and even there she did not tell him (Justice Dhingra) about any sexual exploitation by Sardar Bhupinder Singh and has voluntarily explained that she would not have said so even now but for the fact that accused starting interfering in her second married life. The witness has admitted that she had made a complaint to the Commissioner of Police which is EX.PW9/DX6 bearing her signatures at various point Point A and in the said complaint no allegations of sexual harassment was made and the only allegation was of getting the blank cheque signed on he point of a revolver. She further admits that in the Delhi High Court the Delhi Police had submitted the status report vide EXPW9/DX7 which was taken up in the petition EX.PW9/DX3 and the allegations made against Sardar Bhupinder Singh were found to be false. The witness has voluntarily explained that proper inquiry was not held by Delhi Police and they gave a report only because she State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 20 of 59 could not properly pursue the matter by going to the police station and even if the inquiry is held now a pistol could be recovered from the accused. She has admitted that after this status report she withdrew the petition Ex.PW9/DX3 from the Delhi High Court which order is EX.PW9/DX8. She has further admitted that in the case CC NO.1143/09 (regarding 138 N.I. Act filed by the accused) Sardar Bhupinder Singh was examined as CW1 and her counsel Shri Amar Lal Dua cross examined him vide EX.PW9/DX9 wherein he did not cross examine the accused on the aspect of sexual harassment. The prosecutrix admits that the accused has also filed a civil suit against her for recovery and U/o 37 CPC and she have filed her leave to defend in the same vide EX.PW9/DX10 wherein she had not made any allegations of sexual exploitation. (16) The prosecutrix in her further cross examination admits that she had given a complaint against Sardar Bhupinder Singh in 25th August, 2006 which is EX.PW9/DX11 wherein she had not made any allegations about sexual exploitation. She has further admitted that she had also filed criminal complaint against Sardar Bhupinder Singh, his sons Raman Deep Singh and Saran Jeet Singh vide EX.PW9/DX12 wherein she had not made any allegations against Sardar Bhupinder Singh about of sexual exploitation. She also admits that the complaint case was dismissed for non State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 21 of 59 prosecution by the order of the court vide order dated 17.08.2009 EX.PW9/DX13. She further admits that the accused Sardar Bhupinder Singh has also filed a defamation case against her Ex.PW9/DX14 and she obtained a bail in the said case on 22.04.2011 which was pursuant to a notice/ summons issued by the court vide dated 16.12.2011 for appearance on 21.04.2011. According to the witness, she is not aware if the said case was fixed for 21.04.2011 and they appeared subsequently and has voluntarily explained that they did not come to know about the summons. She has denied that after a date was given by Ld.MM on 21.04.2011 and the case was fixed for 23.08.2011 that she concocted and created this story only as a matter of defence. She has admitted that criminal miscellaneous 1256/2011 has been filed by her in the Delhi High Court for quashing of a complaint filed by her present Advocate Shri Naveen Yadav against herself and previous husband and Sardar Bhupinder Singh vide EX.PW9/DX15 which was ultimately withdrawn and has voluntarily added that Shri Naveen Yadav, Advocate was representing her first husband and she got involved in the dispute between the Advocates. The prosecutrix has denied that she did not disclosed about the sexual harassment and rape to any court previously because no such thing had happened and now she have created this story as defence at counter blast to the case pending against her and her family.
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 22 of 59 (17) According to the prosecutrix, she is not aware if the accused Sardar Bhupinder Singh is suffering from Cancer, Acute Arthrites, Cardiac Problem, however, she has denied that he is ailing and fragile and has voluntarily explained that he only takes advantage of his age but otherwise is a strong person. The witness has deposed that she is unable to tell if on 3rd and 4th April, 2012 the accused Sardar Bhupinder Singh was admitted in Rajiv Gandhi Cancer Institute pursuant to Surgery but it is wrong to suggest that she deliberately made false complaint against him of threat and harassment.
(18) The prosecutrix has denied that she had filed a false case against accused on the instructions of her counsel Shri Naveen Ydav who was earlier the counsel of her first husband and is now assisting her in the present case. She has denied that she had been repeatedly changing counsels and being represented by them in the courts and she has voluntarily explained that she does not have any counsel and Sardar Bhupinder Singh had been threatening all the counsels whom she has been engaging. The prosecutrix has denied that a battery of counsels have been representing her throughout her litigations including Shri D.K. Aggarwal, Shri H.S. Kohli, Shri G.P. Singh, and ShrI A.L. Dua, Shri Ravinder Singh, Shri Jai Veer Singh, Shri Bigule, Shri Om Dutt Sharma and now Shri Naveen Yadav, Advocates and she was always advised by them and could have taken State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 23 of 59 up the issue of sexual exploitation earlier which she did not do because no such thing had happened. The witness has denied that the present case has been filed on the basis of ill advice of her counsels. She has admitted that earlier she had made against her brother in law/ devar i.e younger brother of her first husband regarding sexual harassment that he tore her clothes and tried to molest her (izzat lootne ke koshish ke) and her mother in law and husband simply watched the scene which allegations she made to the National Commission for Women vide EX.PW9/DX16, and has voluntarily explained that whatever had happened she had mentioned in the complaint. The prosecutrix has denied that having already mentioned about these allegations of sexual harassment against her brother in law from the first marriage in the complaint EX.PW9/DX16 she did not mention about the harassment by the accused in any subsequent complaint because no such thing had happened and now she is taking the ploy of family reputation. She admits that earlier she had made allegations against Shri Naveen Yadav, Advocate who is now representing her and was previously representing her previous husband which complaint is EX.PW8/DX2 bearing her signatures at point A and also made a statement in the court vide EX.PW8/DX1 bearing her signatures at point A wherein also she had made allegations against Shri Naveen Yadav, Advocate. The witness has voluntarily added that she was asked by Sardar Bhupinder Singh to State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 24 of 59 make this complaint as he had told her that in the court cases this is a normal practice. She has admitted that at that time she made a complaint against Shri Naveen Yadav, Advocate, she was representing by Shri S.K. Paul, Advocate, and has voluntarily explained that Shri Bhupinder Singh and Shri S.K.Paul are working together and are the same thing.
(19) The prosecutrix 'K' was recalled for further examination U/s 311 Cr.P.C. She has deposed that on 10.05.11, ASI Poonam Tyagi recorded her statement which is Ex.PW9/B which bears her signatures at point A. (20) In her cross examination by Ld. Defence Counsel, the prosecutrix has denied that she has deposed falsely on tutoring of her Advocates that her statement was recorded on 10.05.11. She has further denied that her statement was never recorded by ASI Poonam Tyagi or that she has deposed falsely. She has further denied that even in the court, she was tutored by the Counsel Sh.Naveen Yadav and the complaint was motivated and got drafted by him. Medical Evidence:
(21) PW3 Dr. Neeraj Kumari has deposed that on 10.05.2011 the prosecutrix 'K' was brought to her by Ct. Kavita. According to the witness she examined the prosecutrix and prepared the report on MLC which is Ex.PW3/A. The witness has not been State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 25 of 59 cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(22) PW4 Dr. Nagesh has deposed that on 10.05.2011 the prosecutrix 'K' was brought to the hospital with an alleged history of sexual assault for medical examination by Ct. Kavita and she was referred to SR Gyne. for expert opinion. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(23) PW6 Dr. Neeraj Chaudhary has proved the MLC 26553 of the accused Sardar Bhupinder Singh, aged about 70 years brought in casualty with alleged history of sexual assault and examined by Dr. Ranjit. The witness has deposed that the patient was examined by surgery SR Dr. Amit who has observed that there is nothing to suggest that the person was incapable of committing sexual crime. The witness has deposed that the MLC was prepared under the supervision of Dr. R.S. Mishra. He has identified the handwriting and signatures of Dr. Ranjit and Amit as they had worked with him. He has proved that the MLC Ex. PW6/A bears the signatures of Dr. Ranjit at Point A and Dr. Amit at point B and the name of Dr. R.S. Mishra at point C. In cross examination by Ld. Defence Counsel, witness admits that he did not examined the patient personally and he is only deposing on the basis of the official record. State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 26 of 59 Police Witnesses:
(24) PW1 L/Ct. Kavita has tendered her examinationin chief by way of affidavit which is Ex.PW1/1 bearing her signatures at points A and B. According to the witness on 11.5.2011 she along with ASI Poonam Tyagi took the prosecutrix to BM Hospital for her medical examination and thereafter they also received the MLC and the exhibits of the prosecutrix. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(25) PW2 HC Charan Singh has tendered his examination inchief by way of affidavit which is Ex.PW2/1 bearing his signatures at points A and B. He has proved the registration of the FIR copy of which is Ex.PW2/A bearing his signatures at point A and his endorsement on the rukka which is Ex.PW2/B bearing his signatures at point A. In his cross examination by Ld. Defence Counsel, the witness has deposed that the complainant was present along with the ASI Poonam Tyagi in the Police Station when the FIR was registered. He did not notice if there was any other person along with the complainant.
(26) PW5 HC Vinod Kumar has deposed that on 03.06.2011 he was posted as MHC (M) Rani Bagh and on that day, ASI Poonam Tyagi had deposited one Esteem Car bearing No. DL8CJ6190 State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 27 of 59 along with the key in the malkhana vide Entry No. 365/11 copy of which is Ex. PW5/A. The witness has further deposed that on 16.09.2011 the said above vehicle was released on the Superdari to Sant Dasi by the order of Ld. MM Sh. Neeraj Gaur. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(27) PW10 HC Suresh has deposed that on 03.06.11, he was posted at Police Station Rani Bagh and on that day the accused Bhupender Singh was taken out from the lockup of Police Station Sarswati Vihar and thereafter, he along with accused Bhupender Singh, ASI Poonam Tyagi and Ct. Kaptan Singh reached at House No. 878 Rani Bagh and accused Bhupender Singh brought key of a car from his house. The witness has deposed that thereafter, key was put in the Maruti Esteem Car bearing no.DL8CJ6190 and car was seized by ASI Poonam Tyagi Ex.PW9/A and the car was brought at the police station.
(28) In his cross examination by Ld. Defence Counsel, the witness has deposed that he had read the contents of the recovery memo before signing the same. He has denied that the accused had never stated at the time of recovery of the car that this was the car in which he committed wrong with the prosecutrix at the lonely place of hilly area. He has also denied that accused ever pointed out towards any car or that the said memo Ex.PW9/A was already prepared by State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 28 of 59 the IO who tried to force the accused to sign the same while he was in custody and i.e. why the accused refused to sign the memo as the contents of the same was false and written by the IO on her own. (29) PW11 Ct. Satish Rathi has deposed that on 02.06.11, he was posted at police station Rani Bagh and on that day, he along with ASI Poonam Tyagi reached at House No. 878 Rani Bagh and Bhupender Singh met them there and he was interrogated by ASI Poonam Tyagi and thereafter, he was arrested vide Ex.PW11/A, his personal search was taken vide Ex.PW11/B and his disclosure statement was recorded vide Ex.PW11/C. According to the witness, on the direction of the ASI Poonam Tyagi, he took the accused Bhupender Singh to BJRM Hospital for medical examination and thereafter, brought him at Rohini Courts and his one day police custody Remand was obtained. The witness has deposed that thereafter they returned back to the police station where the complainant was present and they went to the house of accused Bhupender Singh but house was found locked and thereafter, they returned back to the police station. In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that the accused has been falsely implicated in the present case and wrongly arrested.
(30) PW12 ASI Poonam Tyagi has deposed that on 10.05.11 she was posted at Police Station Maurya Enclave and on the State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 29 of 59 directions of Seniors Officers, he went to the Police Station Rani Bagh and the SHO produced the prosecutrix 'K' before her. According to the witness, the prosecutrix made allegations against Sardar Bhupender Singh and his family members and one Mukul Sharma, Advocate and thereafter on the direction of the Senior Officers, she conducted further proceedings and recorded statement of the prosecutrix vide Ex.PW9/B and made endorsement Ex.PW12/A and on the basis of rukka and statement of the prosecutrix, present FIR was recorded. According to the witness, after receiving the copy of the FIR and original rukka, she along with the prosecutrix, her mother and Lady/Ct Kavita reached at Bhagwan Mahavir Hospital, Pitampura, Delhi, where prosecutrix was medically examined and she (witness) received the MLC of the prosecutrix and thereafter, they returned back to police station and recorded statement of witnesses.
(31) The witness has further deposed that on 02.06.11, she along with the Ct. Satish Rathi reached at the house of accused Bhupender Singh who was interrogated and he confessed about his involvement after which she arrested him vide Ex.PW11/A, took his personal search vide Ex.PW11/B and also recorded his disclosure statement vide Ex.PW11/C. The witness has deposed that thereafter, accused Bhupender Singh was taken to Bhagwan Mahavir Hospital but his medical examination could not be conducted there and hence State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 30 of 59 the accused Bhupender was taken to BJRM Hospital thereafter where his medical examination was conducted and his MLC was collected. The witness has deposed that the accused Bhupender Singh was produced before the Court and his one day police custody remand was granted. According to the witness, the prosecutrix was present in the police station and thereafter they reached at the house of accused Bhupender Singh but his house was found locked and no vehicle was found outside of his house.
(32) The witness has further deposed that on 03.06.11, she along with accused Sardar Bhupender Singh, HC Suresh, Ct. Kaptan reached at the house of the accused Bhupender Singh 878, Rani Bagh, Delhi and the accused brought the key of the Maruti Esteem Car DL8CJ 6190 which was found outside of his house and the said car along with its key was seized vide Ex.PW9/A and was deposited in the Malkhana. The witness has deposed that she also recorded the statement of Baljit Singh, husband of the prosecutrix and also of the other witnesses. According to the witness, during investigation, she also formally arrested Sant Dasi and Mukul Sharma vide Ex.PW12/B and Ex.PW12/C and after completion of investigation, she submitted charge sheet against accused Bhupender Singh in the court.
(33) In her cross examination by Ld. Defence Counsel, the witness has denied the suggestion that the disclosure statement was State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 31 of 59 already prepared by her on the basis of false statement of the prosecutrix in order to implicate the accused, contents of which statements are false. The witness has denied the suggestion that the accused did not make any disclosure statement and because of this reason the disclosure Ex.PW11/C does not bear his signature, as accused had refused to sign the false disclosure statement. The witness has further denied that all the documents / memos were prepared by her while sitting in the police station only to connect the accused with the offence in connivance with the prosecutrix which memos were got signed by the prosecutrix and other police officials later. She has further denied that the accused had never got the car recovered or had made no statement at the time of the recovery of the same as reflected in Ex.PW9/A. The witness has denied that it is for this reason that the recovery memo of the Car does not bear his signatures. According to the witness, she had made inquiries about the previous background of the prosecutrix and has voluntarily explained that the inquiry was limited and confined to the fact that she was previously married and had been divorced. She has deposed that she had made inquiries about the details of the legal proceedings which were being conducted in her divorce matter including the lawyers who were representing the parties. According to the witness she came to know that the accused had been representing the prosecutrix in the divorce case but she did not inspect the judicial State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 32 of 59 record and therefore she cannot tell if his vakalatnama was there on the record or not. The witness has deposed that she was told that there was some litigation between the prosecutrix and the accused but she did not collect the details of the same. Witness has denied that she had not conducted fair and independent investigations or that the inquiry / investigation was motivated and led by the prosecutrix. (34) The witness has further deposed that she did not make any inquiries with regard to the place of work of the prosecutrix where she was brought up and studied. She has denied that the prosecutrix did not disclose to her the number of the Car. She has further denied that during the course of investigation, prosecutrix never identified the places where the alleged incident of rape had occurred and it is for this reason that she did not prepare the site plans and has voluntarily explained that the incident as narrated was happening over the period of time and no particular place was pointed out to her due to which reason, she did not prepare the site plan. The witness has further deposed that she had asked the prosecutrix to give the number of the flat of Bhupender Singh where she has alleged that the incident had taken place but she (prosecutrix) could not give the number. According to the witness, she also asked the prosecutrix to give the location of the said place so that she (witness) could prepare the site plan but she was unable to provide the location of the same. The witness has deposed that she did not State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 33 of 59 find out / make inquiries from the public authorities i.e. DDA or Sub Registrar whether any flat was allotted or is registered in the name of the Bhupender Singh in the area of Vasant Vihar. According to the witness, she is not aware of any other complaint given by the prosecutrix in the police station and has voluntarily explained that she has been transferred from the area. The witness has denied that suggestion that she has deposed falsely at the instance and in connivance with the prosecutrix in order to falsely implicate the accused.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(35) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to him which he has denied. The accused has examined himself as his own witness (DW1) under Section 315 Cr.PC wherein he has relied upon the following documents :
1. Certified copy of order dated 6.10.2004 passed by Ld. MM Neerja Bhatia in the case under Section 125 Cr.PC which is Ex.DW1/A.
2. Certified copy of order dated 24.2.2005 passed by Sh. T. S. Kashyap, ASJ, which is Ex.DW1/B. State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 34 of 59
3. Certified copy of the revision petition no. 09/05 and order dated 7.7.2005 by the court of Sh.
O.P.Saini, ASJ, which is Ex.DW1/C.
4. Certified copy of additional affidavit of evidence filed by Kanwalpreet Kaur in the case MHA 815/05 on 25.7.2007 in the court of Ms. Shailender Kaur, ASJ, which is Ex.DW1/D.
5. Certified copy of Civil Suit No. 27/05 in the court of Ms. Shailender Kaur, ASJ, which is Ex.DW1/E.
6. Certified copy of Kalandara DD No. 22 under Section 107/150 Cr.PC, PP Tis Hazari, Delhi, which is Ex.DW1/F.
7. Certified copy of complaint by Kanwalpreet Kaur dated 16.2.2005 and investigation report of ACP, Ex.DW1/G.
8. Certified copy of reply of Kanwalpreet Kaur to the counter claim of Gurpreet Singh dated 25.8.2006, Ex.DW1/H.
9. Certified copy of FIR No. 238/2005 u/s 325 IPC PS Subzi Mandi, Ex.DW1/I.
10. Certified copy of final report under Section 173 Cr.PC in FIR No. 239/05 u/s 324 IPC PS Subzi State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 35 of 59 Mandi, Ex.DW1/J.
11. Certified copy of case under Section 138 NI Act along with documents, which is Ex.DW1/K.
12. Certified copy of complaint by Kanwalpreet Kaur under Section 406/498 A IPC, which is Ex.DW1/L.
13. Certified copy of complaint by Kanwalpreet Kaur to National Commission for Women, which is Ex.DW1/M.
14. Certified copy of Kalandra under Section 182 Cr.PC, Complaint No. TC90, dated 17.5.2012 and TC 100 dated 9.6.2012 PS Rani Bagh, which is Ex.DW1/N.
15. Copy of FIR No. 989/04, which copy is Mark DX1
16. Copy of Certified copy of order dated 7.7.2006 passed by Ms. Barkha Gupta, MM, which is Mark DX2.
17. Copy of judicial records received by the SHO PS Rani Bagh and IO ASI Poonam Tyagi collecting certified copies of case under Section 138 NI Act, Suit under Order 37 CPC, proceedings under Section 482 Cr.PC, Section 499/500 IPC, etc. which are collectively Mark DX3.
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 36 of 59 FINDINGS:
(36) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of both the parties. My findings are as under:
Identity of the Accused:
(37) The identity of the accused Bhupender Singh is not disputed. Both the complainant and the accused were known to each other prior to the incident. The accused has been specifically named in the complaint / FIR and has also been correctly identified in the court by the complainant / prosecutrix 'K' and I hold that the identity of the accused stands established.
Prosecutrix is a Major:
(38) There is no dispute with regard to the age of the prosecutrix 'K'. She is a young women aged about 33 years, an aspect which has not been disputed even by the accused. It also stands established that when the prosecutrix for the first time came into contact with the accused Bhupender Singh, she was a major, married and into a matrimonial dispute with her husband. Hence I hold that the aspect that the prosecutrix was a married women in her late twenties and early thirties when she came into contact with the State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 37 of 59 accused, stands established.
Medical Evidence:
(39) The medical report of the prosecutrix i.e. MLC Ex.PW3/A which has been duly proved by Dr. Neeraj Kumari (PW3) and Dr. Nagesh (PW4), does not assist the prosecution in any manner. The medical examination of the prosecutrix 'K' had been conducted after about six to seven years of the alleged incident as the incident of sexual abuse is stated to be of the period when the prosecutrix had engaged the accused Bhupender Singh to represent her in the year 2004 to 2006.
(40) Dr. Neeraj Chaudhary (PW6) has duly proved the MLC of the accused Bhupender Singh which is Ex.PW6/A showing that there is nothing to suggest that the accused was incapable of performing sexual crime. Here I may observe that one of the arguments of the accused Bhupender Singh (aged about 70 years) is that he is suffering from multiple ailments including Cancer, Heart Problems, Diabetes, etc. as a result of which he is not capable of committing sexual assault. However, in order to substantiate this arguments, he has not adduced any evidence in defence and hence there is no ground to discredit the findings given by Dr. Ranjit and I hold that it stands established that the accused is capable of committing sexual offence.
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 38 of 59
Allegations against the accused:
(41) The case of the prosecution is that the complainant / prosecutrix 'K' who was earlier married to Gurpreet Singh S/o Ujagar Singh was in dispute with her first husband and had engaged one Sh.
D. K. Aggarwal, Advocate, to pursue her case. It is alleged that the accused Bhupender Singh met her in the court and won the confidence of her mother by his claims that he himself was belonging to the same religion / community as the prosecutrix (i.e. being Sikhs) and hence she was allured and enticed to discharge her previous counsel Sh. Om Dutt Sharma, Advocate and engaged the accused Bhupender Singh as her counsel. It is further alleged that the accused used to call her to his house at 9 AM virtually daily and detain her till 10 PM on the pretext of discussing the court cases and during this period he made sexual relations with her forcibly without her consent by issuing threats to her. It is the case of the prosecution that there was a compromise between the prosecutrix and her first husband after which her parents arranged for her second marriage and after she got married, the accused Bhupender Singh did not relent and reached the matrimonial house of the prosecutrix (second marriage) and insisted upon making physical relations with her on the threats that he would wreck her second marriage and it is then that to the prosecutrix took her family members into confidence made the present complaint to the police alleging that the accused State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 39 of 59 Bhupender Singh has spoiled her life by forcibly making physical relations with her from April 2004. In addition to the same, the prosecutrix also made allegations against the wife of the accused namely Sant Dasi and one Advocate namely Mukul Sharma who both according to the prosecutrix were abetting the accused Bhupender Singh in the said offence.
(42) Before coming to the merits of the present case, an argument has been raised by the Ld. Defence Counsel regarding the delay in registration of the FIR. In this regard I may observe that it is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
(43) The Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
(44) In the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 40 of 59
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
(45) In the case of Devanand Vs. State (NCT of Delhi), reported in 2003 Crl.L.J. 242 the Hon'ble High Court of Delhi, has held as under :
"the above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 41 of 59 first time she was raped as per her own version after about 3036 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year...para15"
(46) Further in the case of Thulia Kali vs. state of Tamil Nadu, reported in 1972 Cr.L.J.1296, the Hon'ble Supreme Court has held as under:
"...Delay in lodging the first Information Report quite often results in embellishment which is a creature of after thought . On account of delay the report. On the Account of delay the report not only gets breft of the advantage of spontaneity danger creeps in on the introduction of the coloured version, exaggerated account or concocted story as result of deliberation and consultation ..."
(47) Further, the Hon'ble High Court of Rajasthan in the case of Babu Lal and Anr Vs State of Rajasthan, reported in 2001 Cri LJ 2282 , has held as under: " No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 42 of 59 one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
(48) Further, the Hon'ble High Court of Madhya Pradesh in the case of Banti alias Balvinder Singh VS State of Madya Pradesh reported in 1992 Cr LJ 715 has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix , it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances, it must be held that the prosecutrix story was not satisfactorily established (Para 10)"
(49) Further, the Ld. Defence Counsel has also raised serious concerns regarding the admissibility of the testimony of the prosecutrix 'K'. It is argued that the testimony of the prosecutrix is not free from blemish and cannot be relied upon. He has in this regard placed his reliance on the case law settled by the Higher Courts and the Hon'ble Apex Court and has vehemently argued that State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 43 of 59 keeping in view the background of the prosecutrix and the fact that the accused and the prosecutrix were already into a heavy litigation, the testimony of the prosecutrix is required to be read with due care and caution and independent corroboration to the same would be necessary. The Ld. Counsel for the complainant/ prosecutrix through the Ld. Addl. PP has on the other hand placed before this Court catena of judgments holding that the prosecutrix is a reliable witness and there is no requirement for any independent corroboration keeping in view the entirety of the situation.
(50) I have considered the rival contentions and before proceeding further to analyze the evidence which has come on record I may observe that it is settled principle of law that it is not in every case that the version of the prosecutrix must be corroborated in material particulars by independent witnesses. In a case where the Court is satisfied that the testimony of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix conviction can also be recorded but in appropriate cases the Court may look for corroboration from independent sources or circumstances. The testimony of the prosecutrix has to be tested on the touch stone of truthfulness and credibility. (51) The Hon'ble Supreme Court of India, in Pandurang Sitaram Bhagwat Vs State of Maharashtra reported in 2005 CRI L.J 880 has held as under :
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 44 of 59
"....... The approach of the learned trial judge as noticed supra that ordinarily a lady would not "put her character at stake" may not be wrong but cannot be applied universally . Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where changes under section 376 and 354 of IPC have been found to have been falsely advanced ( para 16)"
"we are not oblivious that the the doctrine "
falsus in uno , falsus in omnibus '' is not applicable in India but the evidence led by the parties must be appreciated keeping in view the entirety of the situation.... PW 2 and PW 3 not only failed to substantiate the allegation as as regards commission of offence under section 323, 504, 506 read with section 34 IPC but also implicated the three persons falsely . The statement of the said witnesses should have been accepted with the pinch of the salt and keeping in view the admitted animosity between the parties. The background of the case vis a vis continuous animosity between the complainant and her husband , on one hand as also the appellents and his other tenants could not have been lost sight of by the learned trial judge( Para 20)"
(52) Further, in the case of Ram Das and ors Vs. State of Maharashtra, reported in AIR 2007 SC 155, the Hon'ble Supreme Court has held as under:
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 45 of 59
"........ It is no doubt true that the conviction in case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exists no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained .....There may also be cases where on the account of fear and threats, witness may avoid going to the police station immediately........It is also possible to corrceive the cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to police and seek the legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weight in the mind of the court i.e. the initial hesitation of the State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 46 of 59 victim to report to the police which may affect her family life and family reputation ...In the ultimate analysis, what is the effect of the delay in lodging the report with the police is a matter of appreciation of evidence and court must consider the delay in the background of the facts and circumstances of such case (para17 )..."
(53) The Hon'ble Supreme Court of India in Dinesh Jaiswal Vs state of M.P, reported in AIR 2010 SC 1540 has held as under :
"........ Mr. C.D Singh has however placed reliance on Moti lal's case (AIR 2008 SCC (Supp) 882:2008 AIR SCW 4846) (Supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with the proposition and it has been so emphasised by this court time and again but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story is an argument that can never be accepted. The test always is as to whether the given story prima facia inspires confidence. We are of the opinion that the present matter is indeed an exceptional one (para 5)......"
(54) Now applying the above principles of law to the facts of present case, at the very Outset I may observe that according to the prosecutrix the offence relates to the year 20042006 (i.e. 16.8.2004 to 10.4.2006) and the FIR was lodged only on 10.5.2011 which is State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 47 of 59 almost about five to six years for which no satisfactory explanation is forthcoming. The only justification given by the prosecutrix is that she has made this complaint only after the accused Bhupender Singh started approaching her in her matrimonial house (second marriage) and insisted to her to maintain physical relations with her under threats of wrecking/ spoiling her matrimonial life. (55) Secondly, it is writ large from the testimony of the prosecutrix and the evidence which has come on record that the relationship between the prosecutrix 'K' and the accused Bhupender Singh had become extremely bitter after 2006, so much so they had launched a series of litigations against each other. In her cross examination, the prosecutrix has admitted these litigation between them. So great was the bitterness between them that even the counsels got themselves embroiled in the mud slinging which took place between the parties and made allegations and counter allegations against each other which matters stand referred to the Bar Council. It does not appears possible or probable that in the given background once the accused Bupender Singh who is an advocate by profession and was himself involved into multiple legal battles with the prosecutrix 'K', that he would have approached her at her matrimonial home and insisted upon her to make physical relations with her.
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 48 of 59 (56) Thirdly, it is very important to note that the second husband of the prosecutrix namely Baljeet Singh (PW7) has in his deposition before this court not made any allegation against the accused Bhupender Singh of his having disclosed anything to him about any physical relations which might have existed between him (Bhupender Singh) and the prosecutrix. Rather, according to him it was in the last week of February, 2011 that when he was in the house of his inlaws, he received a call from the accused Bhupender Singh who wanted to speak to him regarding the court cases of his wife (prosecutrix 'K') and thereafter when he met the accused at the Mother Dairy situated near the house of prosecutrix, the accused Bhupender Singh gave to him the details of various court cases relating to the prosecutrix 'K' connected with cheque bouncing etc. and also warned him that in case if he (Baljeet Singh) wanted to marry her, he should make inquiries about her (prosecutrix) background. According to Baljeet Singh he told the accused that now since he was already married to the prosecutrix 'K', hence this information was of no use to him. It is writ large from the aforesaid examination of Baljeet Singh (PW7) that the accused Bhupender Singh had indeed approached him and also gave him the details of the court cases and the litigations pending between him and the prosecutrix but there is no whisper of Bhupender Singh have told Baljeet Singh about any background of a physical relationship State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 49 of 59 between him and the prosecutrix 'K'. This only reflects the extent of bitterness between the accused Bhupender Singh and the prosecutrix 'K' and the possibility of his having done so in order to ruin the future prospects of the prosecutrix, cannot be ruled out. Of course, it was highly unfair that the accused Bhupender Singh should have in any manner approached the second husband of the prosecutrix namely Baljeet Singh with an intent to ruin her future matrimonial prospects. In this background, the possibility of the prosecutrix 'K' having initiated these proceedings only to seek revenge from accused Bhupender Singh who had exposed her past to her second husband, cannot be ruled out.
(57) Fourthly, it is admitted case of the prosecutrix that in the year 2006, she had received a statutory notice from the accused Bhupender Singh for violation of provisions of Section 138 of Negotiable Instruments Act and she responded to the said notice through her counsel Sh. Om Dutt Sharma, Advocate, vide Ex.PW9/DX1 and Ex.PW9/DX2 which bear her signatures. She admits that in the said communications, she had mentioned that she was introduced to Bhupender Singh through the Granthi of the Gurudwara and admits that even before that, she had met the accused in the court. She has admitted that even Sh. D. K. Aggarwal and Sh. H. S. Kohli, Advocates, had also represented her and has explained that Sh. H. S. Kohli, Advocate, was not permitted to appear in the State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 50 of 59 court by the accused Bhupender Singh. All this does not appear to be probable and truthful because had it been so that she wanted to engage Sh. H. S. Kohli, Advocate as her counsel and discharge the accused Bhupender Singh, the accused Bhupender Singh could have under no circumstances insisted upon appearing on her behalf as her Attorney and this aspect would have been reflected in some judicial proceedings which is not the case.
(58) Fifthly the prosecutrix has admitted that in the litigation with the accused Bhupender Singh in respect of a case under the provisions of 138 NI Act she had approached the Delhi High Court under Section 482 Cr.P.C. wherein she had filed a petition Ex.PW9/DX3 where she had even personally appeared before the Hon'ble Mr. Justice S. N. Dhingra (as he then was) and made submissions to him in person in the open Court. If that was so, then what it that prevented the prosecutrix 'K' a mature adult as she was who was being defended by battery of Advocates, to have disclosed this aspect of sexual exploitation by accused Bhupender Singh to Hon'ble Mr. Justice Dhingra while she was being given a Court hearing? She had sufficient opportunity to expose Bhupender Singh and his misdeeds. Why was it that she chose to keep silent? It is not as if the prosecutrix was born yesterday. She is a worldlywise women, living in a metropolitan city, aware of her State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 51 of 59 rights, who was not only into litigations with her first husband but also with her own counsel who had previously defended her in the litigation against her husband. Why then despite opportunity she kept silent before the court where she was otherwise agitating her legal rights against the accused Bhupender Singh? It is this long silence of the prosecutrix which is highly damaging for her and indicative of the fact that either there was no such incident and the attempt was to overreach the accused Bhupender Singh with whom the prosecutrix was into a heavy litigation; and if that is not so, then it was a consensual affair between two mature adults. There could be no other explanation forthcoming for this long delay by the prosecutrix of six to seven years in reporting this matter which she did not highlight previously despite opportunity. (59) Sixthly, the prosecutrix further admits that she also made complaint to the Commissioner of Police vide Ex.PW9/DX3 on which petition had been filed before the Delhi High Court and report was submitted vide Ex.PW9/DX7 wherein it was reported that the allegations against the accused Bhupender Singh were false but even there she had not made any allegations regarding sexual harassment by the accused. She has further admitted that the accused had filed a civil case against the prosecutrix under Section 37 CPC where she had filed her leave to defend where again she did not State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 52 of 59 make any allegation of sexual harassment by the accused Bhupender Singh. She has further admitted that she had given a complaint against the accused Bhupender Singh on 25.8.2006 wherein she again did not make any allegations against him about the sexual exploitation by him, which complaint is Ex.PW9/DX11. The prosecutrix has further admitted that she has also filed a criminal complaint against the accused Bhupender Singh and his sons Raman Deep Singh and Saran Jeet Singh vide Ex.PW9/DX12 but again in this complaint also she did not made any allegation against the accused of sexual exploitation and the said complaint was dismissed by the court vide order dated 17.8.2009 vide Ex.PW9/DX13. She has also admitted that pursuant to the dismissal of her complaint (Ex.PW9/DX12), the accused Bhupender Singh had filed a defamation case against the prosecutrix vide Ex.PW9/DX14. This being the background of bitter relations and litigations between the prosecutrix and the accused where there is the possibility of the accused Bhupender Singh again approaching the prosecutrix for reviving his physical relations. The entire story put forth by the prosecutrix does not inspire confidence of this court nor does it appear to be convincing, probable or truthful. (60) Seventhly, it has come on record and is evident from the copies of various litigations filed by the prosecutrix against various State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 53 of 59 persons, that she was also into a heavy litigation with her first husband and her brotherinlaw (Devar from the first marriage) and during this period had been assisted by battery of advocates which include Sh. D. K. Aggarwal, Sh. H. S. Kohli, Sh. G. P. Singh, Sh. A. L. Dua, Sh. Ravinder Singh, Sh. Jai Veer Singh, Sh. Bigule, Sh. Om Dutt Sharma and even now she has been assisted Sh. Naveen Yadav, Advocate, (who was earlier representing her first husband against her) and was under advise by these advocates. The prosecutrix has admitted that during this spate of litigation with her first husband and his family she had also filed a complaint with the National Commission for Women against her brother in law (i.e. younger brother of her first husband) regarding sexual harassment wherein allegations of his having torn her clothes and trying to molest her (izzat lootne ke koshish ke) were made with further allegations that her motherinlaw and husband simply watched the scene, which complaint is Ex.PW9/DX16. This being the background, I am more than convinced that in case if something as alleged by the prosecutrix in the present case (sexual exploitation by her counsel Bhupender Singh) would have taken place without her consent at any point of time, she would not have kept quiet or delayed the reporting of the same particularly so when she was already into heavy litigation with Sardar Bhupender Singh and also had a wonderful opportunity of exposing him (Bhupender Singh) in the Court when she was State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 54 of 59 personally heard by Hon'ble Mr. Justice S. N. Dhingra in the Delhi High Court. Also being aware of her statutory rights and legal procedures she would have reported the matter to the police as she had previously done against the brother and family of her first husband, which she surprisingly did not do.
(61) Lastly, I may observe that the only evidence on record is the sole testimony of the prosecutrix which does not find any corroboration from any other source. The mother of the prosecutrix Paramjeet Kaur (PW8) has testified on the basis of what was told by the prosecutrix many years later. She has admitted that she was not aware of these facts previously.
(62) Hence in view of my aforesaid discussion, I hereby hold that the case in hand is an exception. Ordinarily a lady would not put her character at stakes but on factual matrix of the case, her statement does not appear truthful and probable specifically keeping in view the admitted animosity between the accused and the prosecutrix after the year 2006 and she had been representing by battery lawyers thereafter and had ample opportunity for highlighting this aspect of sexual abuse at various forums including the Hon'ble High Court of Delhi, which she did not do and it is for the first time this plea has been raised by her in her statement dated 27.7.2010 and 28.7.2010. It is for the first time that this defence has been raised by the prosecutrix in the said case, which defence has never reflected in her State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 55 of 59 cross examination prior to the same.
(63) Therefore, in view the aforesaid aspects which have now emerged; an inordinate delay in lodging the FIR for which no valid explanation is forthcoming; the silence of the prosecutrix despite the tough legal battle pending between her and the accused since 2006 to 2010 wherein she did not make any allegation of sexual harassment against the accused; there being no independent corroboration to her testimony coupled with the fact that the allegations made against the accused by the prosecutrix are highly vague in terms of date, time and place of the occurrence and the allegations made by the prosecutrix 'K' of being raped by the accused at a isolated spot on the pahari / hilltop (in ridge) way to the court and on another occasion at a flat at Vasant Vihar, details of which she is unable to give makes her testimony unconvincing, unbelievable and unreliable. Under the given circumstances I am not inclined to rely upon the uncorroborated testimony of the prosecutrix and there being no independent corroboration forthcoming the benefit of the same is being given to the accused Bhupender Singh.
FINAL CONCLUSION:
(64) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 56 of 59 which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(65) Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Bhupender Singh stands established and that at the time of the alleged incident that prosecutrix 'K' was aged about 33 years and was into a matrimonial dispute/ litigation with her first husband and his family. It also stands established that during this period of litigation with her first husband and his family the prosecutrix was being represented by many Advocates initially by Sh. D.K. Aggarwal Advocate and thereafter by many others including the accused Sardar Bhupender State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 57 of 59 Singh. Though it is alleged by the prosecutrix that during this period while the accused Sardar Bhupender Singh was defending her in Court cases she was wrongly confined in his office and residence from time to time and sexually exploited during this period 2004 to 2006 and the accused also criminally intimidated her, yet the prosecution has not been able to prove and substantiate these allegations made by the prosecutrix beyond reasonable doubt. (66) It is apparent from the evidence which has come on record that he prosecutrix 'K' and Sardar Bhupender Singh were into very heavy litigation and during this period the prosecutrix had even appeared before the High Delhi Court in the Court of Hon'ble Mr. Justice S.N. Dhingra (where she was given a personal hearing) but throughout this period still the year 2011 she did not disclose this fact regarding sexual exploitation by the accused and there is no explanation/ justification for this long delay in reporting the matter. Rather, on the contrary it has been established that the prosecutrix 'K' is an educated lady, worldly wise and well acquainted with her statutory rights and legal procedures who is being defended by a battery of Advocates for the last many years and there being no independent, reliable and credible corroboration forthcoming to the testimony of the prosecutrix 'K', the benefit of the same is required to be given to the accused Bhupender Singh.
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 58 of 59
(67) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The material brought on record by the prosecution are insufficient to hold that the accused is guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused Sardar Bhupender Singh. Crucially, the materials and evidence on record do not bridge the gap between "may be true" and must be true" so essential for a court to see, while finding the guilty of an accused. (68) Keeping in view the above, I hold that the prosecution has not been able to prove and substantiate the allegations against the accused Sardar Bhupender Singh for the offences alleged and benefit of doubt is given to the accused Sardar Bhupender Singh who is hereby acquitted of the charges under Section 342/376/506 Indian Penal Code. The surety of the accused be discharged, as per rules.
(69) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 20.10.2012 ASJ (NW)II: ROHINI
State Vs. Sardar Bhupender Singh etc., FIR 123/11, PS Rani Bagh Page 59 of 59