Delhi District Court
Sc No: 455/17 State vs . Vipin Sharma on 14 May, 2018
SC No: 455/17 State Vs. Vipin Sharma
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 455/17
FIR No. 176/17
Police Station Dwarka South
Under Section 376/354/506 IPC
State
Versus
Vipin Sharma
S/o Sh. Dharam Pal
R/o H. No. 1/45, Gali No. 25,
Raja Puri, Uttam Nagar,
New Delhi. .....Accused
Date of institution 24.07.2017
Judgment reserved on 28.04.2018
Judgment Pronounced on 14.05.2018
Decision Acquitted
Judgment Page No 1 of 19
SC No: 455/17 State Vs. Vipin Sharma
JUDGMENT
1. Accused Vipin Sharma is facing trial on allegations of committing rape upon prosecutrix, threatening and outraging her modesty.
2. FIR in question was registered on 15.04.2017 on complaint of prosecutrix who alleged that she runs an office of Saras Travel at Dwarka Mor and knows accused Vipin Sharma since last 2-3 years. Accused used to take tickets from her at Royal Destination Travels and thereafter she used to work with him on commission basis at Easy-2 Travels. She alleged that accused established physical relations with her on pretext of marrying. Accused tortured her mentally and physically. Prosecutrix alleged that she went with accused to different hotels where they established physical relations. Accused also established physical relations with her at his office in Dwarka. Accused then started telling that she is married and mother of 3 children and used bad words against her. When family of prosecutrix sent a proposal for Judgment Page No 2 of 19 SC No: 455/17 State Vs. Vipin Sharma marriage to house of accused, they rejected proposal. She alleged that accused used abusive language, threatened her and called her prostitute. Prosecutrix also alleged that when she went to the office of accused, he pushed her from chest.
3. Prosecutrix was got counseled and was medically examined. Her statement was got recorded u/s 164 Cr.P.C. Accused joined the investigation. He was charge-sheeted. Charge for offence punishable U/s 376 (2) (n)/506/354 IPC was framed against accused. Accused pleaded not guilty and claimed trial.
4. Prosecution examined 5 witnesses.
PW Name of witness Nature of Documents proved witness 1 V Prosecutrix Supported prosecution version, proved her complaint as Ex. PW1/A, her statement recorded U/s 164 Cr.P.C as Ex PW1/B, site plan Ex. PW1/C, pointing out memo Ex. PW1/D, seizure memo of printout of photographs as Ex. PW1/E, photographs Ex. PW1/F-1 to F-9, Judgment Page No 3 of 19 SC No: 455/17 State Vs. Vipin Sharma chat conversation between her and accused as Ex. PW1/G-1 to G-25 and a marriage certificate as Ex. PW1/H. 2 Chatter Singh Record Keeper Proved marriage certificate as Ex. PW1/H, affidavit of Ram Dayal and prosecutrix as Ex. PW2/A & B, copy of passport of Ram Dayal as Ex. PW2/C, election I-card and mark-sheet of High School of prosecutrix as Ex. PW2/D & E. 3 Rakesh Kumar Police Proved DD No. 20A ( Ex PX-5) in respect of a call made by prosecutrix on 15.04.2017.
4 W/Insp. Kusum Police Proved rukka as Ex. PW4/A, Lata arrest & personal memo of accused as Ex. PW4/B & C, his disclosure statement as Ex. PW4/D, seizure memo of exhibits of accused as Ex. PW4/E, got recorded statement of prosecutrix U/s 164 Cr.P.C, prepared site plan and pointing out memo, seized documents as per seizure memo as Ex. PW1/E. 5 Ms. Rita Sharma Aunt of Deposed that prosecutrix prosecutrix introduced accused to her in October 2015, on 15.04.2017 she went with prosecutrix to office of accused where accused abused and assaulted prosecutrix.
Judgment Page No 4 of 19 SC No: 455/17 State Vs. Vipin Sharma
5. Accused gave a statement admitting FIR in question, certificate U/s 65-B Indian Evidence Act, his medical examination, medical examination of prosecutrix and DD No. 20A. Accused admitted statement of prosecutrix recorded U/s 164 Cr.P.C as well. In view of his statement, relevant witnesses to prove the aforesaid documents were dropped from array of witnesses.
6. Statement of accused was recorded U/s 313 Cr.P.C. wherein accused stated that due to financial dispute between him and prosecutrix he has been falsely implicated and he never committed any sexual assault on her.
7. It is contended on behalf of accused that it stands proved on record that prosecutrix was already married to Ram Dayal and as such there prosecutrix knew that there was no possibility of marriage between prosecutrix and accused. It is argued that due to financial dispute prosecutrix has falsely Judgment Page No 5 of 19 SC No: 455/17 State Vs. Vipin Sharma implicated him. It is submitted that testimony of prosecutrix is neither truthful nor worthy of credence.
8. On the other hand Ld Addl. PP submits that prosecutrix in all her statements categorically stated that accused established physical relations on false pretext to marry her. It is submitted that there is no evidence on record to indicate marriage between prosecutrix and Ram Dayal. It is argued that incident dated 15.04.2017 of physical assault on prosecutrix is duly corroborated by PW5 and since no material contradiction has come in testimony of prosecutrix as such case against accused stands proved beyond any reasonable doubt.
9. I have given thoughtful consideration to arguments advanced at bar and perused the entire material on record. I have also gone through written submissions filed on behalf of prosecutrix.
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SC No: 455/17 State Vs. Vipin Sharma
10. Statement of prosecutrix was recorded U/s 164 Cr. P.C. as Ex. PW1/B and its English translation reads as under:-
"I know Vipin Sharma since 2-3 years. I was partner in Royal Destination travels and Vipin used to book tickets from us. Talks increased and he promised to marry. He also told that my money is his and his money is mine. Vipin is owner of Easy-2 Travel, Sector-11, Dwarka ticketing company. We both had a good bonding. I told Vipin that other partner of Royal Destination namely Ram Dayal has made a false marriage certificate and I have filed a case at Patiala House Court. Vipin told that he is with me, I should work with him, don't work with Royal Destination. Vipin always used to ask me to have physical relations. Whenever we used to go to hotels, stay overnight, celebrate valentine's day, we established sexual relations. Thereafter, I told my family that I want to marry Vipin. When my family members sent a proposal for marriage to the house of Vipin, he retracted and told that we are just friends. I told him you promised for marriage. He told that he never promised for marriage.
In market, he told that I am pregnant, mother of 3 children, till today he has not given me accounts. I used to work on commission basis for him but when I asked him about my money, he told me that I am a prostitute.
On 15.04.2017 I went to his office. He used bad words and pushed me on my chest and threatened me that I cannot do anything against him. I called at 100 and 1091 number."
Judgment Page No 7 of 19
SC No: 455/17 State Vs. Vipin Sharma
11. Allegations against accused appearing in all the statements of prosecutrix is that accused established physical relations with prosecutrix on promise that he would marry her. In her testimony, prosecutrix testified that in April 2015, accused established physical relations with her and sometimes they used to go to hotels and also used to establish sexual relations in office.
12. To controvert allegations of prosecutrix, it has been argued on behalf of accused that prosecutrix was already married to one Ram Dayal and as such, she was never in any kind of misconception that accused would marry her.
13. Prosecutrix in her deposition herself produced a marriage certificate Ex. PW1/H. Certificate pertains to marriage between prosecutrix and one Ram Dayal on 14.07.2011. During her cross-examination, prosecutrix in respect of her marriage with Ram Dayal and in relation to certificate Ex. PW1/H, she deposed as under:
Judgment Page No 8 of 19
SC No: 455/17 State Vs. Vipin Sharma
" ..... I did not file any divorce petition. I did sign a petition sent by Ram Dayal for divorce on the ground of mutual consent. It is correct that in that petition I have signed as a wife of Ram Dayal. It is correct that I also signed an affidavit accompanying the mutual consent divorce petition. At this stage, a petition under section 13 B (1) of HMA Act is shown to the witness. Witness identifies her signatures at point A as petitioner No. 2. A copy of petition is now Ex. PW1/D-1. Witness also identifies her signatures on her affidavit accompanying the petition at point A. An affidavit is now Ex. PW1/D-2...."
.......... Petition for seeking divorce on ground of mutual consent has already been withdrawn. Vol. I filed a complaint against Ram Dayal for forging documents at PS Sarojini Nagar after signing the divorce petition. At the time of signing the petition, I was not aware that I was signing the divorce petition. I appeared before the Family Court for 7 dates of hearing and each time with my Advocate."
14. Aforesaid testimony of prosecutrix proves that she did sign a petition signed by Ram Dayal seeking divorce on the ground of mutual consent which is Ex. PW1/D-1 and in the said petition, prosecutrix signed as wife of Ram Dayal and affidavit Ex. PW1/D-2 is proved on record to that effect.
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SC No: 455/17 State Vs. Vipin Sharma
15. In her sworn affidavit Ex. PW1/D-2 prosecutrix admits that she married Ram Dayal on 14.07.2011. Prosecutrix in her deposition categorically deposed that she appeared in the Family Court for 7 dates of hearing each time with her Advocate. Though prosecutrix tried to wriggle out her marriage with Ram Dayal by deposing that she has filed a complaint against Ram Dayal for forging documents but the fact of the matter is that prosecutrix not only filed a divorce petition Ex. PW1/D-1 filed by mutual consent with Ram Dayal but she also sworn an affidavit to the effect that she got married to him on 14.07.2011. Prosecutrix duly appeared before the Family Court after filing of the petition.
16. Moreover PW2 Chhattar Singh, Record Keeper of Arya Samaj Mandir produced record in respect of marriage between prosecutrix and Ram Dayal. He proved their marriage certificate dated 14.07.2011 as Ex. PW1/H, affidavit filed by Ram Dayal as Ex. PW2/A and affidavit filed by prosecutrix as Ex. PW2/B. He also proved the relevant record produced by Judgment Page No 10 of 19 SC No: 455/17 State Vs. Vipin Sharma prosecutrix and Ram Dayal to prove their date of birth at the time of marriage. In her affidavit Ex. PW2/B given before Arya Samaj Mandir, prosecutrix stated that she is marrying from her free will and choice to Ram Dayal.
17. Prosecutrix in her testimony did not explain that if she did not marry Ram Dayal then how marriage certificate Ex. PW1/H along with her affidavit and relevant documents came into existence. Prosecutrix also failed to explain that if she never married to Ram Dayal then under which circumstances she signed mutual consent petition Ex. PW1/D-1 and appeared before the Ld. Family Court.
18. Presuming that the certificate Ex. PW1/H was got prepared by Ram Dayal or that prosecutrix did not solemnize her marriage with Ram Dayal but it is unexplained that if it was the case then why she did appear before Ld. Family Court.
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19. PW4 Insp. Kusum Lata, Investigating Officer categorically deposed that she verified the genuineness of marriage certificate of prosecutrix and the same was found to be genuine. There is no investigation in respect of claim of prosecutrix that marriage certificate Ex. PW1/H is a forged document, rather PW4 during her cross examination testified that she did not make any inquiry or investigation from Ram Dayal which could discredit the genuineness of marriage certificate.
20. Fact of the matter is that there is no evidence on record to indicate that the marriage certificate Ex. PW1/H is forged or fabricated document. Rather PW2 Chhattar Singh, Record Keeper of Arya Samaj Mandir, Yamuna Bazar has duly proved the marriage between prosecutrix and Ram Dayal as per certificate Ex. PW1/H. Thus, it is evident that prosecutrix in her testimony as well as in her complaint has concealed the material fact that she was already married to Ram Dayal.
Judgment Page No 12 of 19
SC No: 455/17 State Vs. Vipin Sharma
21. Prosecutrix being an educated girl and was running a private business of traveling could not be under any kind of misconception that her marriage with accused in the light of the fact that she was already married to Ram Dayal and was litigating with him. There is no evidence on record to indicate that prosecutrix obtained divorce before entering into a relationship with accused and as such prosecutrix would be aware that during persistence of her marriage with accused she cannot re-marry.
22. Prosecutrix deposed that to celebrate Valentines day, she went with accused to Fortune Park Hotel on 13.02.2016. In this regard, testimony of prosecutrix reads as under:-
" ...... On 13.02.2016 accused took me to Fortune Park, Manesar. After doing the checking formalities when we went inside the room, accused offered me a drink which he took out from his bottle and put it in glass which he brought along with him. After drinking it I became drowsy. I sat down. I fell unconscious. When I regained little conscious, I found that accused was lying on me without clothes. I was also not wearing any clothes. Then I pleaded accused to leave me but accused stated that I should believe him and then established forcible relations with me.... "
Judgment Page No 13 of 19
SC No: 455/17 State Vs. Vipin Sharma
23. Testimony of prosecutrix in relation to this incident is material improvement to her earlier statements Ex PW1/A & B and in none of her earlier versions prosecutrix alleged that accused established forcible sexual relations with her after intoxicating her.
Nonetheless, if at all accused established forcible relations with prosecutrix then why she did not make complaint against him on that day of incident itself. Instead of severing her relationship with accused, prosecutrix continued to establish physical relations with her. Conduct of prosecutrix in doing so indicates her willful participation in the relationship with accused.
24. Incident of sexual assault dated 15.04.2017: In respect of this incident prosecutrix deposed as under:-
"After this accused called me in his office to clear my accounts. I went to his house with my Maasi to take my dues. As soon as I opened the door of the office, accused abused me that 'Aaja Randi Raand, tu le apna hisab'. I told accused to behave properly. Accused then started shouting on me and held my breast tightly and pushed me outside the door of his office. Then I immediately called at 100 & 1091 numbers. Police came and took me to the police station."
Judgment Page No 14 of 19
SC No: 455/17 State Vs. Vipin Sharma
25. It is submitted on behalf of prosecution that in all her versions, prosecutrix has maintained that on 15.04.2017 when she went to the office of accused, accused abused her and then shouting on prosecutrix held her breast and pushed her outside the door of the office.
26. In this regard, prosecution has also examined PW5 Rita Sharma (Maasi of prosecutrix) who testified as under:-
"On 15.04.2017, I went with prosecutrix to office of accused. The moment prosecutrix opened the door of the office, accused started hurling abuses towards prosecutrix in obscene language "Aaja randi raand apna hisab le le aa kar". I got shocked after hearing language used by accused. When prosecutrix objected to the language of accused, he groped breast of prosecutrix and pushed her towards the door. Thereafter prosecutrix went outside crying and called PCR. PCR came to the spot and took me and prosecutrix to PS."
27. On 15.04.2017, a DD No. 20A (Ex PX-5) was recorded that at about 12.45 pm a call has been made in respect of misbehavior with a girl. PW3 SI Rakesh Kumar testified that on receipt of Ex. PX-5, he reached at spot where prosecutrix informed Judgment Page No 15 of 19 SC No: 455/17 State Vs. Vipin Sharma him that she would come to police station and would file a complaint there. PW3 testified that in evening prosecutrix came to police station and handed over a handwritten complaint to him.
28. Deposition of PW3 Rakesh Kumar is different to the version of the incident given by prosecutrix and her Maasi (PW5). Both of them stated that after the incident they went to police station but PW3 clarified that they did not accompany him to police station rather after telling him that they would come in the evening went from there.
29. More so, though in her testimony prosecutrix deposed that PW5 (her massi) went along with her in the office of accused but in her initial complaint prosecutrix does not mention so. Prosecutrix in Ex PW1/A stated that when she went to take account from accused, accused abused her. Prosecutrix does not mention about presence of PW5 with her. In her statement Ex PW1/B (recorded U/s 164 Cr.P.C) as well prosecutrix does not Judgment Page No 16 of 19 SC No: 455/17 State Vs. Vipin Sharma mention that PW5 went along with her to office of accused. PW3 Inspector Rakesh Kumar also does not say that when he went to spot, Massi of prosecutrix was present there with her.
30. Presence of PW5 at the spot has not been verified even in the investigations of the case. Name of PW5 does not appear in the list of witnesses in the charge-sheet. It is evident that PW5 was later on examined by prosecution to improve it's case and to lend support to the version of prosecutrix in respect of incident dated 15.04.2017. No reason is appearing as to why prosecutrix did not lodge the compliant at the time when PW3 reached the spot. As per IO, no public person verified the incident. IO testified that there was a financial dispute between accused and prosecutrix, hence, false implication of accused cannot be ruled out. Thus, there is enough doubt as to truthfulness in respect of the incident dated 15.04.2017.
Judgment Page No 17 of 19
SC No: 455/17 State Vs. Vipin Sharma
31. From above stated discussions it emerges that :
i) Prosecutrix is a married lady not yet divorced.
ii) There is no evidence that she entered into relationship with accused under misconception of any fact.
iii) There is material improvement and inconsistency in the versions of prosecutrix in respect of incident dated 13.02.2016.
iv) Testimony of prosecutrix that accused established physical relations with her after intoxicating her is not worthy of credence as prosecutrix even after alleged act did not report the matter.
v) There is no evidence on record to establish that accused obtained consent of prosecutrix for physical relations with her deceitfully.
vi) Prosecution has failed to prove incident dated 15.04.2017 beyond reasonable doubt.
32. Conclusion: In the light of above discussions, it is held that prosecution has failed to bring on record clear, cogent and consistent evidence against accused. Accordingly, he is acquitted. His surety is discharged. Bail bond stands canceled.
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SC No: 455/17 State Vs. Vipin Sharma
Accused is directed to furnish a personal & surety bond in sum of Rs. 10,000/- each under Section 437-A Cr.P.C which shall remain in force for period of six months.
File be consigned to record room after due compliance. Announced in the open court on 14th day of May, 2018.
Digitally signed
GAUTAM
by GAUTAM
MANAN GAUTAM MANAN
MANAN
Date:
2018.05.15 Addl. Sessions Judge (SFTC)
16:14:06
+0530 South-West, Dwarka Courts, Delhi
Judgment Page No 19 of 19