Delhi District Court
State vs . Aakash on 22 July, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.34/15.
Unique Case ID No. 02405R0051172015.
State Vs. Aakash
S/o Sh. Ombir Singh,
R/o B-1/64, Shukar Bazar Road,
Madhu Vihar,
New Delhi.
Date of Institution : 05.5.2015.
FIR No.223 dated 17.2.2015.
U/s. 376/328 IPC.
P.S. Dabri.
Date of reserving judgment/Order : 22.7.2015.
Date of pronouncement : 22.7.2015.
JUDGMENT
1. Accused Aakash had been chargesheeted by the prosecution for the offences u/s.376/328/506 IPC.
2. It is the case of the prosecution that the accused, who resided in the neighbourhood of the prosecutrix namely 'T' (real name withheld in order to conceal her identity). She was already married and living with her husband and her two children. The accused had fallen in love with the prosecutrix and had given his mobile number to her one day asking her to talk to him on phone.
SC No.34/15. Page 1 of 11When the prosecutrix did not make any call to him, he threatened her and accordingly prosecutrix started talking to him on phone. The accused then met her one day in nearby Balaji temple and gave her a packet of sleeping tablets telling her to mix the same in the meals of her husband and to call him when he would fall asleep. The prosecutrix did as told by the accused and her husband felt asleep after taking meals. Accused entered their room from the roof and committed forcible sexual intercourse with the prosecutrix. Meanwhile, the husband of the prosecutrix woke up and caught hold of the accused. He also made a call at telephone no.100. Fearing humiliation, the prosecutrix consumed phenyl in the bathroom.
3. Police officials reached and removed prosecutrix to DDU Hospital. Her statement was recorded in the presence of her husband by SI Kamlesh. FIR was registered and the investigation was commenced by SI Kamlesh. She recorded the statement of witnesses u/s.161 Cr.PC, inspected the spot of incident and prepared its site plan. She seized the exhibits of the prosecutrix from the hospital. Statement of the prosecutrix u/s.164 Cr.PC was got recorded. Accused joined investigation and was got medically examined in DDU Hospital. Exhibits given by the doctor were seized by the IO. All the exhibits were sent to FSL for forensic examination. The IO also obtained call details record of mobile phone to the prosecutrix as well as the accused. The IO seized Alprax tablets from the residence of the prosecutrix.
4. After completion of the investigation, Charge Sheet was prepared by the IO and laid before the concerned Magistrate.
SC No.34/15. Page 2 of 115. Upon committal of the case to the court of Sessions, Charge u/s.376 IPC, u/s.506 IPC and u/s.328/109 IPC was framed against the accused on 03.6.2015. Accused denied the charge and hence trial was held.
6. The prosecution has examined ten witnesses to bring home the guilt of the accused. Ld. APP also tendered in evidence the FSL result Ex.PA. The accused was examined u/s.313 Cr.PC on 22.7.2015 i.e. today wherein he admitted that he was in love with the prosecutrix and both used to talk to each other on phone as well as meet each other. He stated that the prosecutrix used to insist upon him to meet her and she had made a call to him from an STD Booth after her return from West Bengal. He has further stated that the prosecutrix herself used to make call to him at about 11.30 p.m. after her husband used to fall asleep. Thereafter, he used to reach the house of the prosecutrix. Both used to have physical relations with each other. He stated that the prosecutrix was always a consenting party to the sexual relations between the two and he never had physical relations with her against her consent. He further stated that the prosecutrix has lodged a false complaint of rape against him at the instance of her husband, who had seen both of them in compromising position. He chose not to lead any evidence in defence.
7. I have heard Ld. APP for State and have perused the entire record.
8. The prosecutrix has been examined as PW2. The SC No.34/15. Page 3 of 11 relevant portion of her examination in chief is reproduced hereunder:
"One day, about six months before the registration of FIR, accused met me in the gali and told me that he loves me. I told him that I am a married lady having two children. However, he kept on saying that he loves me. He asked me about my mobile number but I did not give him the same. He gave his mobile number to me written on a piece of paper and asked me to talk to him on phone. However, I did not make any call to him. But he started threatening me whenever he used to meet me in the gali. He told me that he would kill my husband and children if I did not talk to him on phone. Thereafter, I started making calls to him and we used to talk to each other on phone.
During our telephonic conversation, he used to insist upon me to meet him but I refused. One day, he came to our house and met me at the gate of our house. He asked me why I do not meet him anywhere else. I told him that I cannot meet him. My husband came to know about our relations. He took me to our native village in West Bengal. I stayed there for about one and a half months and then was brought back to Delhi by my husband. Accused again met me during Saraswati Puja in our neighbourhood and started telling me to talk to him on phone. I again showed my reluctance. On account of his repeated harassment in this regard, I made a call to him one day from a nearby STD Booth. He again insisted upon me to meet him. I told him that I cannot meet him as my husband would come to know about the same. However, he did not relent and insisted that I should meet him. Upon his repeated insistence, I agreed to meet him. I met him on the same day in Balaji temple. He gave me a sleeping pill saying that I should administer the same to my husband mixed in 'Dal' during dinner and he would then come to our house at 12 midnight.
I did as directed by the accused. I mixed the tablet in 'Dal' and administered the same to my husband. My husband fell asleep. Accused came to our house at about 12.30 a.m. from the roof. He asked me to have physical relations with him. When I refused, he SC No.34/15. Page 4 of 11 started threatening me. He then committed sexual intercourse with me despite my refusal and against my consent. Meanwhile, my husband, who was also sleeping in the same room, woke up and saw both of us in semi nude condition as we were not wearing our lower garments. My husband raised alarm. Neighbours gathered in our house on hearing the shouts of my husband. My husband also made a call at telephone no.100 and police officials reached our house. Accused was apprehended by the police officials. On account of shame and humiliation, I took phenyl in the bathroom in a bid to end my life. Police officials took me to DDU Hospital where my medical examination was conducted and treatment was given to me. My statement was recorded by the police in the hospital which is Ex.PW2/A bearing my signature at point A. The clothes which I was wearing were taken into possession by the doctor."
9. She further proved her statement u/s.164 Cr.PC as Ex.PW2/B. She also deposed that her husband had handed over the phenyl bottle to the police officials, from which she had taken phenyl. She was declared hostile at the request of Ld. APP on certain points and in the cross examination conducted by Ld. APP, she denied that the accused had threatened her not to disclose the rape incident to anybody and that she did not disclose the same to anybody in order to avoid humiliation. She admitted that accused used to threaten her not to complain against him to police or otherwise, he would kill them while going to their native village.
10. In the cross examination conducted on behalf of the accused, she stated that the accused gave her his mobile number first and she then gave him her mobile number after about one week. She did not tell her husband that the accused is threatening her and is demanding her mobile number. She conveyed her SC No.34/15. Page 5 of 11 mobile number to the accused by making a call on his mobile number. She admitted that her mobile number was 8802061885 and the accused was using mobile nos.9212953125 and 9650803728. She admitted that she used to give missed calls on the mobile number of the accused and thereafter accused used to call her. She further stated that her husband had heard her talking to accused on phone and thus became aware about her relations with the accused. She did not tell her husband that accused is harassing her or threatening her. She admitted that for this reason, her husband took her to West Bengal. She further stated that after about five days of return from West Bengal, she made a call to the accused from the STD Booth, near Balaji temple. She had taken the mobile number of the accused written on a paper alongwith her to the STD Booth. She met him on the same day in Balaji temple. The accused told her that the tablets which he had given to her are the sleeping tablets and no harm would be caused to her husband. She administered sleeping tablets to her husband on two occasions mixed in meals. She did not administer the sleeping tablets to her children.
11. She admitted that she used to talk to accused about 10 to 15 times in a day on phone. She admitted that when her husband used to be in sleep, she used to call the accused informing him that her husband has slept. The accused then used to come to their house after about half an hour and remained there for about half an hour. She stated that the accused had come to her home only twice during the night. Upon reaching their house, the accused used to knock on the door and she used to open the door for him. She stated that apart from the day when SC No.34/15. Page 6 of 11 she lodged complaint against the accused i.e. 16/17.2.2015, the accused had come to their house during the night about one week before and on that occasion also, he had physical relations with her. She did not apprise her husband about the said incident. On that day also, she had administered sleeping tablets to her husband and when her husband slept, she made a call to the accused, pursuant to which he came to their house. She stated that she had hidden the strip of tablets in a place in the gallery outside their room and there were 6 to 7 tablets in the strip.
12. The prosecutrix's husband has been examined as PW5. He deposed that on 16.2.2015 when he was in deep sleep during the night, he woke up at about 12.30 a.m. and found accused and his wife sleeping together. He saw them committing sexual intercourse with each other. He tried to beat both of them but they hid themselves underneath the bed. He raised alarm and upon hearing his shouts, neighbours had gathered around the house. The uncle of the accused also came to his house and took accused alongwith him. His wife started weeping and consumed phenyl. He made a call at telephone no.100. Police officials came to his house and took his wife to DDU Hospital. He also accompanied them to the hospital. He further deposed that he made enquiries from his wife in the hospital about the incident and she told him that the accused has been harassing her and threatening her that in case she did not meet him, he would kidnap their child. She also told him that the accused had given her sleeping pills to administer the same to him in order to facilitate sexual relations between them.
13. He stated that he handed over the phenyl bottle and SC No.34/15. Page 7 of 11 strip of sleeping tablets to the police officials.
14. In the cross examination, he deposed that he had heard his wife talking to the accused on phone and for that reason he took her to Bengal. They stayed in West Bengal from 04.12.2014 to 14.1.2015. He did not quarrel with her on that day. He had talked to the accused on phone and asked him why he is making calls to his wife and also abused him. He stated that his wife did not complain to him about the accused after return from West Bengal. He stated that on the night intervening between 16.2.2015 and 17.2.2015, when he was in sleep, he heard voices like 'Na - Na - Na' and woke up. He saw his wife and accused having physical relations with each other and both were wearing only their upper garments. They had taken off their lower garments. Upon seeing him wake up, accused hid himself underneath the bed.
15. As noted herein-above, the accused in his statement u/s.313 Cr.PC has stated that he had fallen in love with the prosecutrix and has admitted that he used to visit the house of prosecutrix at around midnight and used to have physical intercourse with her.
16. The conduct of the prosecutrix as reflected from her testimony does not give any indication at all that she had been pressurized or threatened by the accused to have sexual relations with him. It appears from her testimony that she too was in love with the accused and was enjoying consensual physical relations with him.
SC No.34/15. Page 8 of 1117. Following facts and circumstances stand out from the perusal of the deposition of the prosecutrix :
(i) She received the mobile number of the accused from him without any protest.
(ii) After about one week thereof, she gave her mobile number to the accused.
(iii)They used to talk to each other about 15 to 20 times daily on phone.
(iv)The husband of the prosecutrix had heard her talking to the accused on phone and came to know about the relations between the two and for this reason took her to West Bengal where they stayed for one and a half months.
(v) Upon return from West Bengal, she made a call to the accused from STD Booth and then met him on the same day in Balaji temple.
(vi)She took the sleeping tablets from the accused without any protest or hesitation and agreed to administer the same to her husband.
(vii) She did not apprise her husband that the accused has again started meeting her or that accused had given her sleeping tablets to administer the same to him.
(viii) She used to mix the sleeping tablets in the meals of her husband and when she found her husband in deep sleep, she used to make calls to the accused asking him to come to her house and thereafter they SC No.34/15. Page 9 of 11 used to have physical relations with each other.
(ix) When the accused reached their house, he used to knock on the door and she used to open the door for him.
(x) The prosecutrix and the accused had engaged in physical relations with each other in this manner several times and on none of the occasions, did she apprise her husband that the accused had raped her.
(xi) She did not complain against the acts of the accused to her husband at any point of time and it is when her husband saw them with his own eyes in compromising position that he raised alarm and made a call at telephone no.100.
18. These facts and circumstances clearly establish beyond doubt that the prosecutrix herself had developed liking and fancy for the accused and was inclined to have physical relations with him and was a consenting party to each and every sexual encounter with him. Had she not been inclined and interested in having sexual relations with the accused, she would not have received the sleeping pills from the accused or if it is assumed that she received those pills under fear and threat of the accused, she would have shown them to her husband and told him that the accused is pressurizing or forcing her to administer these sleeping pills to him. She would not have been mixing those sleeping tablets in the meals of her husband in order to put him to deep sleep. The fact that the prosecutrix herself used to make calls to the accused around midnight informing him that her husband had slept and asking him to come to her house makes it SC No.34/15. Page 10 of 11 manifest beyond doubt that she was doing all this voluntarily and without any force or threat from the side of the accused.
19. The evidence on record does not show or suggest that the accused had been forcing the prosecutrix to administer the sleeping pills to her husband or to have sexual relations with him.
20. The deposition of the prosecutrix does not inspire any confidence at all. The same appears to be neither credible nor trustworthy. Her overall conduct indicates that she used to administer sleeping pills to her husband willingly in order to ensure that he goes into deep sleep and she then used to call the accused to her house to have physical relations with him. Had her husband not caught them in compromising position in the dead of night, they would have carried on with their sexual relations in the same manner, the husband being oblivious of their relations. There would have been no complaint against the accused. It is a clear case of extra marital affair on the part of the prosecutrix, which has been given the colour of rape by her in order to show to her husband that she is a victim and to avoid humiliation in the society.
21. The prosecution has thus failed to lead any credible or trustworthy evidence to prove the guilt of the accused. The accused is liable to be acquitted and is hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 22.7.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.34/15. Page 11 of 11