Delhi District Court
State vs Nitin Siwal And Another. -:: Page 1 Of 11 ... on 21 November, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 118 of 2014.
Unique Case ID Number : 02401R0524182014.
State versus
1. Mr. Nitin Siwal
Son of Mr. Ramesh Kumar,
Resident of House No.A 25 A Shivangi Kunj,
Madipur, Opp F-Block, New Delhi.
2. Mr. Mool Chand @ Mukesh
Son of Mr. Lala Ram
House no. B-29, Madipuri, New Delhi
First Information Report Number : 578/2014.
Police Station Khyala
Under sections 376/506 of the Indian Penal Code.
Date of filing of the charge sheet : 27.09.2014
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 28.10.2014.
Court of ASJ (SFTC)-01, West, THC, Delhi
Arguments concluded on : 21.11.2014.
Date of judgment : 21.11.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State is on leave.
Mr. Ateeq Ahmed, Substitute Additional Public Prosecutor for
the State.
Accused Nitin Siwal has been produced from judicial custody.
Accused Mool Chand @ Mukesh on bail.
Ms. Suman Kapoor, counsel for accused Mr.Nitin Siwal.
Mr. Deepak Ghai, counsel for accused Mool Chand @ Mukesh.
Prosecutrix is present along with her counsel Mr. Praveen
Dabas.
Ms. Shubra Mehndiratta, counsel for Delhi Commission for
Sessions Case Number : 118of 2014.
Unique Case ID Number : 02401R0524182014
FIR No.578/2014, Police Station Khyala
Under sections 376,506 of the Indian Penal Code.
State versus Nitin Siwal and another. -:: Page 1 of 11 ::-
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Women.
IO/SI Bimla is present.
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."............ Kurt Cobain ************************************************************* 1 The charge sheet has been filed against two accused persons, namely Mr. Nitin Siwal and Mr.Mool Chand @ Mukesh, by Police Station Khyala, Delhi for the offence under sections 376/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 26.07.2014 at house no. 25 A Shivangi Kunj, Madipur, Delhi near Shamshan Ghat, Khyala in the house of accused Mr.Nitin Siwal, he com- mitted rape upon the prosecutrix (name mentioned in file but withheld to protect her identity) and on 01.08.2014, he demanded Rs. 5000/- from the prosecutrix and threatened her not to disclose about the incident and ac- cused Mr. Mool Chand @ Mukesh called the prosecutrix (name mentioned in file but withheld to protect her identity) on her mobile phone and said objectionable words (gandi gandi baatein).
2. After completion of the investigation, the charge sheet against accused Mr. Nitin Siwal was filed before the Court of the learned Metropolitan Magistrate on 27.09.2014 and supplementary challan against accused Mr. Mool Chand @ Mukesh was filed before the Court of the learned Metropolitan Magistrate on 09.10.2014 and after committal, the Sessions Case Number : 118of 2014.
Unique Case ID Number : 02401R0524182014 FIR No.578/2014, Police Station Khyala Under sections 376,506 of the Indian Penal Code. State versus Nitin Siwal and another. -:: Page 2 of 11 ::-
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case has been assigned to this Court of the Additional Sessions Judge (Spe- cial Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 28.10.2014.
3. After hearing arguments, vide order dated 28.10.2014, charge for offence under sections 376 IPC and under section 384/506 IPC was framed against accused Mr. Nitin Siwal and charge for the offence under section 354 IPC was framed against accused Mr. Mool Chand @ Mukesh to which they pleaded not guilty and claimed trial 4 In order to prove its case, the prosecution has examined the prosecutrix as PW1.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6 The prosecutrix, as PW1, has deposed that earlier she was residing in Orissa with her husband and they had moved to Delhi about one year ago. She knew accused Mr.Nitin Siwal and Mr.Mool Chand @ Mukesh as they were friends of her husband Mr. Akash and she has identified them. She has deposed that both the accused persons have not Sessions Case Number : 118of 2014.
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committed any offence against her. She had physical relations with accused Nitin Siwal with her free consent and without any coercion, force, influence or threat. Both the accused persons are innocent and she has prayed that they may be acquitted. She did not want to say anything else.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Substitute Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
8 In her cross examination by the Substitute Additional Public Prosecutor, the prosecutrix has admitted that her signatures at points A, B and C in the statement (Ex.PW1/A) and that she had gone to PS Khyala on 07.08.2014 and her statement was recorded by the police on 07.08.2014 (Ex. PW1/A). She has voluntarily deposed that the same was made due to some misunderstanding and on the wrong advise of well wishers and she had physical relations with accused Mr.Nitin Siwal with her free consent. Both the accused persons have not committed any offence against her. She has denied the suggestion that she had made complaint (Ex. PW1/A) based on true and correct facts and not due to some misunderstanding and on the wrong advise of well wishers. She admitted that she was taken by the police to DDU hospital where she was medically examined vide MLC (Ex. PW1/B) and she had told the doctor that she had been raped by accused Mr.Nitin Siwal. She has voluntarily deposed that she had given the statement to the doctor due to some misunderstanding and on the wrong advise of well wishers and she had physical relations with him with Sessions Case Number : 118of 2014.
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her free consent. She has denied the suggestion that whatever she told the doctor in the MLC (Ex. PW1/B) was based on true and correct facts and not due to some misunderstanding and on the wrong advise of well wishers. She admitted that she was produced by the police in Tis Hazari Courts where her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex. PW1/C) was recorded by the learned Metropolitan Magistrate. She has voluntarily deposed that she had made this statement at the instance of her well wishers, on their wrong advise and due to some misunderstanding. She has denied the suggestion that whatever she told the learned Metropolitan magistrate in her statement under section 164 of the Cr.P.C. (Ex.PW1/C) was based on true and correct facts and not due to some misunderstanding and on the wrong advise of well wishers. She did not remember the name of her well wishers and also did not remember the nature of misunderstanding. She has denied that she cannot tell the name of her well wishers nor the nature of misunderstanding as she was deliberately not deposing the truth before the Court and her complaint and other statements are true. She had not shown the places of alleged incident to the police. She has voluntarily stated that no incident had occurred and for this reason there was no occasion to show any place of alleged incident vide the site plans dated 07.08.2014 and 10.08.2014 (Mark A and Mark B respectively). She has admitted that car bearing car registration no. DL 3C AB 6530 Silver Santro Hyundai Xing belonging to accused Mr.Nitin Siwal was seized by the police in her presence vide seizure memo (Ex. PW1/D). She has denied the suggestion that on 27.09.2014 she had told the police in her statement (Mark C) that she had received many phone calls on her mobile phone (number deposed Sessions Case Number : 118of 2014.
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in evidence and withheld to protect the identity of the prosecutrix) from mobile no.9555615113 which is the mobile phone of accused Mool Chand @ Mukesh and he said objectionable words to her (gandi baatein karta tha). She has voluntarily deposed that she did not use the mobile phone number as it does not belong to her or her husband. She has denied the suggestion that on 26.07.2014, accused Mr.Nitin Siwal committed rape upon her in his house and on 01.08.2014, he demanded Rs. 5000/- from her and threatened her not to disclose about the incident. She further denied the suggestion that accused Mr.Mool Chand @ Mukesh had said objectionable words (gandi gandi baatein), on her mobile phone. She voluntarily deposed that she again says that both the accused persons namely Mr.Nitin Siwal and Mr.Mool Chand @ Mukesh have not committed any offence against her. The statement to the police and other statements were made by her due to some misunderstanding and on the wrong advise of her well wishers. She had physical relations with accused Mr.Nitin Siwal with her free consent. She has prayed that both of the accused may be acquitted since they have not committed any offence against her. She has denied the suggestion that she is deposing falsely as she has been won over by the accused.
9 In her cross examination by accused Mr.Nitin Siwal, the prosecutrix has admitted that he is innocent and has not committed any offence against her. She has also admitted that she had physical relations with him with her free consent and accused Mr.Nitin Siwal has never raped her nor tried to extort money from her nor threatened her.
10. In her cross examination by the accused Mr.Mool Chand @ Mukesh, Sessions Case Number : 118of 2014.
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the prosecutrix has admitted that the accused Mool Chand @ Mukesh is innocent and has not committed any offence against her and also admitted that accused Mr.Mool Chand @ Mukesh has not outraged her modesty.
11. The prosecutrix, PW1 has not deposed an iota of evidence of her being raped by accused Mr. Nitin Siwal who had attempted to extort money from her or threatened her. The prosecutrix, PW1 has not deposed an iota of evidence that accused Mr.Mool Chand has called the prosecutrix on her mobile phone and said objectionable words (gandi gandi baatein). She has not even mentioned the word "rape" by accused Mr. Nitin Siwal nor objectionable words by accused Mool Chand @ Mukesh in her evidence nor has deposed anything incriminating against them. In fact, she has deposed that both of them are innocent and has not attributed any criminal role to them. She has even prayed for their acquittal.
12. In the circumstances, as PW1, the prosecutrix who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused persons, the prosecution evidence is closed, declining the request of the Substitute Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.
13. Statements under section 313 of the Cr.P.C of both the accused Sessions Case Number : 118of 2014.
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are dispensed with as there is nothing incriminating against them when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
14. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
15. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the most material witness, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
16. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
17. Consequently, no inference can be drawn that accused are guilty of committing any offence. There is no material on record to suggest that the prosecutrix was ever raped by accused Mr. Nitin Siwal or that he attemoted to extort Rs.5,000/- from her or that he threatened her. There is no material on record to suggest that accused Mr.Mool Chand @ Mukesh Sessions Case Number : 118of 2014.
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has called on her mobile phone and said objectionable words. No case is made out against the accused Mr. Nitin Siwal and Mr.Mool Chand @ Mukesh as there is no incriminating evidence against them. In fact, the prosecutrix has deposed that she had physical relations with accused Nitin Siwal with her free consent and accused Nitin Siwal has never raped her not tried to extort money from her nor threatened her. Even, accused Mr.Mool Chand @ Mukesh is innocent and has not committed any offence against her and has not outraged her modesty.
18. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused persons have not committed any offence against her. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
19 Consequently, no inference can be drawn that accused Mr.Nitin Siwal is guilty of the charged offences under section 376 IPC and under sections 384/506 IPC and accused Mr.Mool Chand @ Mukesh is guilty of the charged offences under section 354 IPC. There is no material on record to show that on 26.07.2014 at house no. 25 A Shivangi Kunj, Madipur, Delhi near Shamshan Ghat, Khyala in the house of accused Mr.Nitin Siwal, he committed rape upon the prosecutrix and on 01.08.2014 he demanded Rs. 5000/-from the prosecutrix and threatened her not to dis- close about the incident .
Sessions Case Number : 118of 2014.
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20. Consequently, no inference can be drawn that accused Mr. Mool Chand @ Mukesh is guilty of the charged offences under section 354 IPC. There is no material on record to show that accused Mr.Mool Chand @ Mukesh called the prosecutrix on her mobile phone and said objection- able words (gandi gandi baatein).
21. From the above discussion, it is clear that the case of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offence of attempt to rape, attempt to extort, threat and outrage the modesty. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. In fact, the prosecutrix has deposed that accused Mr.Nitin Siwal and Mr. Mool Chand @ Mukesh are innocent and have not committed any offence against her.
22. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr. Nitin Siwal due to complete lack of evidence for the offence under section 376 IPC and under sections 384/506 IPC and accused Mr. Mool Chand @ Mukesh for the offence under section 354 IPC.
23. Consequently, the accused, Mr. Nitin Siwal is hereby acquitted of the charge for the offence under section 376 IPC and under sections 384/506 IPC and Mr. Mool Chand @ Mukesh is hereby acquitted for the offence under section 354 IPC. Sessions Case Number : 118of 2014.
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24. Compliance of section 437-A Cr.P.C. is made in the order sheet.
25. Case property be destroyed after expiry of period of limitation of appeal.
26. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence or where the prosecutrix is hostile, as in the present case, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
27. One copy of the judgment be given to the Substitute Additional Public Prosecutor, as requested.
28. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 21th day of November, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
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