Delhi District Court
State vs Kuldeep S/O Late Sh. Babu Lal, on 25 July, 2017
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 28004/2016
Sessions Case No. 13/2015
Assigned to Sessions. 20.02.2015
Arguments heard on 18.07.2017
Date of Judgment 25.07.2017
FIR No. 425/2014
State Vs Kuldeep S/o Late Sh. Babu Lal,
R/o. H. No.55, Sita Saran Colony,
Roshnara Road, Subzi Mandi,
Delhi.
Police Station Subzi Mandi
Under Section 366/328/376(2)(n)/506 IPC
JUDGMENT:
1. In the present case Station House Officer of Police Station Subzi Mandi filed a challan vide FIR No.425/2014 dated 29.08.2014 u/s 376/328/506 IPC for the prosecution of accused Kuldeep in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. After compliance of the requirement of section 207 Cr. P.C. the case was committed to this court being a designated Special Fast Track Court, for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and SC No.13/2015 State v. Kuldeep 1/30 "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being disclosed in the judgment.
2. In nutshell, the present FIR was registered on the statement of prosecutrix dated 29.08.2014 wherein she has stated that she and her husband was working as Safai Karamchari in MCD. They were having two sons aged about 14 years and 06 years respectively and she was living with her husband and children at Darya Ganj. She further stated in her statement that in the year 2012, she happened to meet accused who was also working as Safai Karamchari in the said department. She further stated that one day in March'2013, accused took the prosecutrix to Roshanara Bagh on the pretext of getting her familiar with the cervical pain exercises, served her Campa cold drink and that when she consume the cold drink she became unconscious. When prosecutrix regained consciousness, she found her Pajami was removed. It is further stated that when prosecutrix asked the accused about the same, first he started to avoiding the question and then he accepted to have establish physical relation with her and while stating that he had established physical relation with her several time. Accused also told her that if she would not come to meet, he would make her nude photographs public and would also show them to her husband. It is further stated by prosecutrix in her statement that accused established physical relation with her several time forcibly and that he had also got his photographs in her company snapped several times forcibly and established physical relation with her without her consent. On the basis of the said prosecutrix statement, prosecutrix sought legal action against the SC No.13/2015 State v. Kuldeep 2/30 accused.
3. Accordingly, FIR No.425/2014 u/s 376/328/506 IPC was registered against accused Kuldeep.
CHARGE:
4. On the basis of material available on record, ld. Predecessor of this court vide order dated 10.03.2015 framed charges against accused Kuldeep for the offence punishable u/s 366/328/376(2)(n)/506 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
5. In order to prove its case prosecution has examined 14 witnesses namely PW1 HC Ram Avtar, PW2 Prosecutrix , PW3 SI Prakash, PW4 W/Inspector Mukesh Devi, PW5 Dr. Navleen, PW6 SI Yogender Kumar, PW7 Ct. Lal Singh, PW8 Inspector Mukesh Devi, PW9 SI Meena Yadav, PW10 Dr. Ritesh Chauhan, PW11 Dr. Varun Garg, PW12 Sh. Saurabh Garg, PW13 Ms. Riya Guha and PW14 Dr. Dileep.
6. PW1 HC Ram Avtar is a formal witness being Duty Officer. This witness has proved computerized copy of FIR vide Ex.PW1/A and subsequent endorsement Ex.PW1/B and certificate u/s 65 B of Indian Evidence Act qua the present FIR vide Ex.PW1/C.
7. PW2 Prosecutrix is a material witness being victim and complainant.
SC No.13/2015 State v. Kuldeep 3/30This witness deposed that her date of birth is 01/08/1975 and she was working as Safai Karamchari in MCD and her husband was also working as Safai Karamchari in MCD. She has two children i.e. aged 14 years and 6 years respectively.
8. PW2 further deposed that she know accused Kuldeep present in the court today (correctly identified) since 1½ 2 years and accused Kuldeep is also working in MCD. PW2 further deposed that she was suffering from cervical pain and she used to go for exercise to ease cervical pain with accused and her husband in Mandir Wali Gali where one Guruji used to get exercise done for cervical pain and several other persons also used to come there for exercise. She went for such exercise two times in Mandir Wali Gali.
9. PW2 further deposed that one day in the month of March, 2013, accused made a call to her husband and asked him if they want to go with him for doing exercise and her husband asked her and she stated that she want to go for exercise. However, as her husband was on duty at that time, he sent her alone with the accused stating that he will pick her up after the exercise. PW2 further deposed that accused took her to Roshnara Park and she asked accused why he has brought her to Roshnara Park instead of Mandir Wali Gali.
10. PW2 further deposed that accused brought a cold drink i.e. campa and offered it to her and she became unconscious after consuming the said cold drink and when she regained consciousness, it had become dark. PW2 further deposed that she realized that her salwar SC No.13/2015 State v. Kuldeep 4/30 had been removed and accused was sitting there. PW2 further deposed that she asked the accused about her said condition. First accused refused and when she started crying, he told her that he had established physical relations with her when she was unconscious. She started crying loudly then accused threatened her that he has clicked her nude photographs and also threatened her to show the said photographs to her husband and to other persons and she came back to her house.
11. PW2 further deposed that her husband asked her the reason for coming late but due to fear, she did not tell him about the incident. PW2 further deposed that thereafter accused started calling her at different places including Feroz Shah Kotla, Purana Qila etc. by threatening her that he will send her aforesaid photographs to her husband and due to the said threat of accused, she used to meet him as directed by him and accused used to establish physical relations with her without her consent and accused also used to get clicked her photographs with him forcibly.
12. PW2 further deposed that on 28/07/2014, accused demanded money from her stating that he is in need of some money. However, she refused. PW2 further deposed that accused made a call to her husband after which her husband threw her out of the house. PW2 further deposed that she does not know what accused told to her husband and later she came to know that accused had also shown her objectionable photographs to her husband. PW2 further deposed that after her husband threw her out of the house, she went to the SC No.13/2015 State v. Kuldeep 5/30 house of her mother i.e. B16, MCD Flats, New Usman Pur, Delhi. She went to PS Chandni Mahal and made a verbal complaint against the accused but no action was taken.
13. PW2 further deposed that thereafter on 30/07/2014, she went to PS Subzi Mandi and made complaint against the accused. Accused was also called to the PS but police did not take any action against him. She visited PS Subzi Mandi several times but no action was taken by the police against the accused.
14. PW2 further deposed that on 09/08/2014, she gave a written complaint at PS Subzi Mandi but police did not take any action. She appeared before DCP concerned. Then on 29/08/2014, police called her at PS Subzi Mandi where police recorded her statement vide Ex.PW2/A and and got registered the FIR.
15. PW2 further deposed that she was taken to Hindu Rao hospital where she was medically examined and she did not give consent for her internal examination. This witness has proved her statement u/s 164 Cr.P.C. vide Ex.PW2/B.
16. This witness has proved the copy of complaint dated 19/06/2013 vide Ex.PW2/C and copy of complaint dated 18/11/2014 vide Ex.PW2/D.
17. This witness was cross examined by Sh. Mohd. Iqrar - Learned Addl. PP for State. In her cross examination, this witness admitted SC No.13/2015 State v. Kuldeep 6/30 that on 17/11/2014, she led the police to Roshanara Bagh where she pointed out the place of incident and police inspected the spot at her instance and prepared the site plan.
18. In her cross examination by Sh. Deepak Ghai- learned counsel for accused, this witness deposed that they were posted together in the same circle since last five years. This witness deposed that she visited the Guruji in Mandir Wali Gali for the first time in 2013. This witness further deposed that prior to the incident in March, 2013, she had visited there on two earlier occasions and both times her husband went with her and they went to Mandir Wali Gali at 7.00 am - 7.30 am on first two occasions. This witness deposed that her duty hours are from 6.30 am to 2.30 pm in winter season and from 7.30 am to 3.304.00 pm in summer season.
19. This witness further deposed that she does not have any mobile.
Mobile no.8860413036 is the mobile no. of her husband and her husband is also using another mobile phone bearing no.8447181338.
20. This witness further deposed that on the day of the incident, she went with accused to the Park from Lal Qilla where she was on duty. PW2 deposed that she cannot tell at what time she regained consciousness in the Park but it had become dark. She reached at Roshanara Bagh with the accused in about 30 minutes and she cannot tell at what time her husband reached home on that day. She reached home at about 8.00 pm. PW2 deposed that she was having cordial relations with her husband before July, 2014.
SC No.13/2015 State v. Kuldeep 7/3021. PW2 further deposed that she came alone to her house from Roshanara Bagh after the incident. PW2 further deposed that the place of incident was at about 20 minutes walking distance from the entrance of the Roshanara Bagh.
22. PW2 deposed that she does not know whether residents of nearby areas also come in the Roshanara Bagh in the evening for walk and she also do not know if children also come to the park for playing. This witness had denied to the suggestion that she is intentionally giving a evasive reply or that many persons and children were present in the park in the evening.
23. This witness admitted that she was given counselling and the NGO officials had asked her the facts of the case. This witness further admitted that she had told the NGO officials about two other incidents of rape after the incident of March, 2014. This witness further admitted that her husband used to accompany her to the office of Superintendent, Delhi Nagar Nigam, North Zone, before registration of FIR.
24. PW2 further admitted that on 31.07.2014 at 4:53 AM, she had made a call at 100 number from near Lala Ram Akhara, Roshanara Road, Delhi because on 31.07.2014 accused had demanded Rs.50,000/ from her and when she refused to give him that money, he called her husband and showed him her photograph and thereafter, there was a quarrel between her and her husband.
SC No.13/2015 State v. Kuldeep 8/3025. This witness admitted that before the registration of present case, she had got registered a case under Section 308/34 IPC against the accused Kuldeep and his wife Sushila and his sister Beena and son of accused namely Karan at PS Subzi Mandi itself. This witness has proved the certified copy of the said FIR i.e. FIR No.395/14 dated 16.08.2014 vide Ex.PW2/DC. This witness had denied to the suggestion that in the absence of her husband, she used to call the accused through Raj Kumar at her house or that her family knew about this fact. This witness had denied to the suggestion that she falsely implicated the accused in the present case as accused refused to accept her legal demands or that accused never committed any offence with her or that nothing happened in the matter as deposed by her in examination in chief or that she used to make call to the accused and used to call him at her house or that her husband, family members of accused were aware about their relations or that she is deposing falsely.
26. PW3 SI Prakash. This witness has given information in MCD regarding the registration of the FIR against the accused on 16.09.2014. This witness deposed that on 19/09/2014, accused got interim protection from the Court with the direction to join the investigation. This witness interrogated the accused vide Ex.PW3/A.
27. PW4 W/Inspector Mukesh Devi. This witness deposed that on 29.08.2014 at about 10.00 pm she was called to PS Subzi Mandi by Insp. Surender Kumar, where she met with prosecutrix and recorded her statement/complaint Ex.PW2/A and thereafter, she made SC No.13/2015 State v. Kuldeep 9/30 endorsement thereon vide Ex.PW4/A. This witness has got the prosecutrix medically examined vide MLC Ex.PW5/A. PW4 has got recorded the statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW8/A. This witness had moved an application for obtaining CDR of mobile phone of accused Kuldeep.
28. PW5 Dr. Navleen has proved MLC of the prosecturix vide Ex.PW5/A on behalf of Dr. Payal.
29. PW6 SI Yogender Kumar has got conducted medical examination i.e. potency test of accused from Hindu Rao Hospital vide MLC Ex.PW6/A. Doctor had not given any exhibits pertaining to medical examination of the accused.
30. PW7 Ct. Lal Singh. This witness deposed that in the intervening night of 29/30.08.2014 Duty Officer had handed over original Rukka already Ex.PW4/A and computerized copy of present FIR already Ex.PW1/A for handing over the same to IO W/SI Mukesh Devi. This witness had handed over the same to the IO at Hindu Rao Hospital.
31. PW8 Inspector Mukesh Devi. This witness deposed that on 29.08.2014 at about 10.00 pm she was called to PS Subzi Mandi by Insp. Surender Kumar, where she met with prosecutrix and recorded her statement/complaint already Ex.PW2/A, thereafter, she made endorsement thereon vide Ex.PW4/A and the Rukka Ex.PW4/A was handed over to Duty Officer, PS Subzi Mandi. This witness has got medically examined the prosecutrix from Hindu Rao Hospital vide SC No.13/2015 State v. Kuldeep 10/30 MLC Ex.PW5/A.
32. During the course of investigation, on 30.08.2014 she got recorded statement of prosecutrix under section 164 Cr.PC vide Ex.PW8/A and counseling of prosecutrix was done through Subhra Mendiratta, Advocate for DCW.
33. PW9 SI Meena Yadav has interrogated accused vide interrogation report Ex.PW9/A. This witness has sent request for obtaining CDR of mobile phone number of accused as well as prosecutrix.
34. PW9 has deposed that on 09.10.2014 prosecutrix came to PS and informed him that accused Kuldeep was threatening to her and she had lodged a complaint in PS Chandni Mahal. Accordingly, this witness added section 506 IPC in the present case. Prosecutrix had also given her typed complaint in this regard vide Ex.PW9/B. This witness has again interrogated accused at his home who denied regarding the threatening. This witness has prepared site plan Ex.PW9/C at the instance of prosecutrix.
35. In her cross examination by Sh. Deepak Ghai, ld. counsel for accused, this witness deposed that she had not inquired from the complainant as to from which phone number threat was extended to her. This witness further deposed that he did not collect any CDR regarding threatening.
36. PW10 Dr. Ritesh Chauhan has conducted the medical examination SC No.13/2015 State v. Kuldeep 11/30 vide MLC Ex.PW10/A.
37. PW11 Dr. Varun Garg has proved the MLC of accused vide Ex.PW6/A on behalf of Dr. Ashish Tyagi.
38. PW12 Sh. Saurabh Agarwal has been deputed by Sr. Nodal Officer of Vodafone Company on behalf of Sh. Anuj Bhatia who had also been working as Nodal Officer in Vodafone Company having its office at C48, Okhla Industrial Area, New Delhi. Sh. Anuj Bhatia, Nodal Officer, Vodafone Company vide his reply Ex.PW12/A to the notice u/s 91 Cr.PC has provided certified copy of Customer Application Form along with copy of ICard issued in the name of accused, copy of driving license vide Ex.PW12/B pertaining to mobile No.9873689915, Sh. Anuj Bhatia has also provided certified copy of Customer Application Form along with ID proof issued in the name of Dalip s/o Ram Charan, pertaining to mobile number 8860413036 Ex.PW12/C.
39. Sh. Anuj Bhatia, Nodal Officer, Vodafone Company has also provided certified copy of Customer Application Form along with ID proof issued in the name of Dalip s/o Ram Charan pertaining to mobile number 8447181338 Ex.PW12/D (colly), Sh. Anuj Bhatia has also provided certified copy of Customer Application Form along with ID proof issued in the name of Karan S/o Kuldeep, pertaining to mobile number 7838510133 Ex.PW12/E (colly).
40. PW12 Sh. Saurabh Aggarwal verified signature of Sh. Anuj Bhatia, SC No.13/2015 State v. Kuldeep 12/30 Nodal Officer, Vodafone Company of the verified documents. PW12 also identified the signature of Sh. Anuj Bhatia on the certificates under section 65 B of Indian Evidence Act, Ex.PW12/F, Ex.PW12/G, Ex.PW12/H and Ex.PW12/I qua the aforesaid mobile numbers, PW12 also identified the signature of Sh. Anuj Bhatia on the certified copy of the CDRs Ex.PW12/J, Ex.PW12/K, Ex.PW12/L and Ex.PW12/M in respect of aforesaid mobile numbers.
41. PW13 Ms. Riya Guha has recorded statement of prosecutrix under section vide Ex.PW2/B pursuant to the application Ex.PW8/A of PW8 W/Insp. Mukesh Devi.
42. PW14 Dr. Dileep has identified the signature and handwriting of Dr. Nikunj Jain on the MLC Ex.PW10/A. STATMENT OF ACCUSED U/S 313 CR.P.C.:
43. After prosecution evidence, statement of accused u/s 313 Cr. P.C. was recorded where accused denied all allegations, evidence and circumstances put to him Accused claimed that they both were working in MCD and they knew each other. Prosecutrix started demanding Rs. Two lacs from him to buy house. When he refused to give money she falsely implicated him in the present case.
44. Accused further claimed that on 30.07.2014 prosecutrix made a complaint at police station Subzi Mandi. He was called there and she compromised the matter and gave in writing that he was her best friend and she was not willing to make any complaint against him.
SC No.13/2015 State v. Kuldeep 13/3045. Accused further claimed that on 01.08.2014 prosecutrix alongwith her children came to his house and tried to stay forcibly in his house. After sometime she went back, however she again came to his house and again started doing the same thing. The matter was got settled with the intervention of his neighbours and he took a room on rent at house no. 2048, Mukeempura, Malka Ganj, Delhi. Prosecutrix stayed there for 34 days and introduced him as her husband to the landlord, Ms. Manju Gupta. After 34 days prosecutrix left the said room. Her husband had come there to pick her with him.
46. Accused further claimed that again on 16.08.2014 prosecutrix came to his house and created ruckus and when his family members tried to stop her she falsely implicated him in the present case. Later on she compromised the matter. Accused preferred to lead evidence in his defence.
DEFENCE EVIDENCE :
47. Accused examined DW1 SI Ravi Kumar, DW2 Sh. Veeru and DW3 Smt. Sushila, his wife in his defence.
48. DW1 SI Ravi Kumar is a summoned witness. This witness deposed that IO W/SI Meena Yadav had recorded his statement in the present case on 01.12.2014. He further deposed that in the intervening night of 30/31.07.2014, he was on emergency duty at PS Subzi Mandi. On that night pursuant to a call vide DD no.8A Ex.DW1/A, he alongwith Ct. Suraj Bhan reached Roshanara Road, SC No.13/2015 State v. Kuldeep 14/30 where caller/prosecutrix met them. This witness inquired the matter and filed the call vide DD no.33B. This witness has proved true copy of the same vide Ex.DW1/B.
49. DW2 Sh. Veeru deposed that today he is appearing on asking of the accused to depose in the court. He is working as a Safai Karamchari in MCD.
50. DW2 deposed that on 31.07.2014 at about 09.30 pm, accused Kuldeep telephoned him that he was in trouble and asked him to come at PS Subzi Mandi. He went there and met the accused Kuldeep in the police station. He further saw the prosecutrix saying that "tum mujhe apne saath rakhoge toh mein kuch nahi karungi, agar isne saath nahi rakha toh mein usse barbaad kar dungi aur jail kara dungi". She was addressing the accused Kuldeep at that time. Since it was late hours, he had taken the prosecutrix and accused to his house.
51. In cross examination by Sh. A.T. Ansari, Ld. Addl. PP for State, this witness deposed that he does not know who was the SHO at that time at PS Subzi Mandi. This witness had denied to the suggestion that he had not gone to police station or that he had not heard any conversation held between accused and prosecutrix in the police station.
52. DW3 Smt. Sushila is the wife of accused. She deposed that husband of the prosecutrix used to ask her husband to arrange a SC No.13/2015 State v. Kuldeep 15/30 house for him. She further deposed that on 21.07.2014 at about 04.00 am prosecutrix came to her house and she made call on telephone number 100 and knocked the door of her house and when she opened the same she entered her house and when she asked the reason for entering the house, she said to her that "mein Kuldeep se pyaar karti hoon, yahin rahungi". In the meantime police also reached the spot and took her husband/accused to police station. At the police station a compromise was entered between the accused and prosecutrix but she does not know the terms and conditions of the compromise. DW2 further deposed that next morning at about 09.00 am prosecutrix alongwith her husband/accused came to her house and said to her that "mein yahin rahungi". She replied to her that she would not allow her to live in her house. DW2 further deposed that one Veeru, friend of the accused was already present in her house and he took the prosecutrix and accused/her husband to his home at Gur Mandi. Both of them stayed there overnight. Thereafter, both of them took a room on rent in Malkaganj and started living there together and after twothree day husband of the prosecutrix took her away from the said rented room and her husband returned to home. Thereafter, husband of the prosecutrix used to invite her husband/accused and served him liquor.
53. DW2 further deposed that on 16.10.2014 at about 11.00 am when her son had gone for tuition and her husband and her elder son had gone to Rajasthan, prosecutrix and her husband again came to her house and started quarreling with her stating that "mein yahin rahungi aur mujhe 22.5 lac rupe dilwao, nahi toh mein case SC No.13/2015 State v. Kuldeep 16/30 karungi". Thereafter, she got the present case registered.
54. In cross examination by Sh. A.T. Ansari, Ld. Addl. PP for the State, this witness admitted that she had not made any complaint mentioning the aforesaid facts against the prosecutrix to any authority. Vol. At the time of registration of this case she had told the said facts to the police. This witness had denied to the suggestion that she had not told the said facts to the police. This witness had further denied to the suggestion that she has been tutored by the accused to depose the aforesaid concocted story. This witness admitted that he had not made any call on telephone number 100 on both the aforesaid alleged occasions. Thereafter, D.E. was closed and case was fixed for final arguments.
ARGUMENTS:
55. Ld. Addl. PP for the State argued and submitted that in case of such nature the Hon'ble Court is expected to be more sensitive to appreciate the evidence brought on record by prosecution and not to be swayed away by minor discrepancy or contradictions. The sole testimony of prosecutrix is found trustworthy and inspiring the confidence can be sole basis of conviction.
56. Ld. Addl. PP for the State further submitted that though the obsecene photographs could not be recovered by the I.O. in this case but the version of the prosecutrix that she had been blackmailing on the basis of said photographs and used to commit sexual intercourse with her cannot be discarded for want of recovery of photographs. Ld. SC No.13/2015 State v. Kuldeep 17/30 Addl. PP for the State further submitted that prosecutrix could not made complaint on time on account of such blackmailing of accused and when she got fed up she choose to make complaint against the accused. Ld. Addl. PP for the State further submitted that incident is not only of Roshanara Park but accused has also established physical relation with prosecutrix at different hotels under the aforesaid threat and blackmailing. The statement of prosecutrix is consistent on all the material aspects of the case and as such it is trustworthy to basis of conviction of the accused.
57. On the other hand, Ld. counsel for accused has filed written arguments wherein he has submitted that as per the prosecution story first alleged incident of rape took place in March'2013 but prosecutrix registered FIR on 29.08.2014 after unexplained delay of 17 months.
58. Ld. counsel for accused further submitted that prosecutrix admitted during the cross examination that her relation with her husband were cordial before July'2014, she even accepted that she has mother, who live in Usmanpur, Delhi and two elder brothers, one is two years elder and other is 6 years elder to her, but surprisingly she did not disclose them about the alleged incident.
59. Ld. counsel for accused further submitted that before registration of present FIR No.425/2014 dated 29.08.2014, prosecutrix has also got another FIR No.395/2014 u/s 308/34 IPC Ex.PW2/DC registered on 16.08.2014 wherein she stated that she has love affair with accused Kuldeep. She did not make any complaint regarding rape allegedly SC No.13/2015 State v. Kuldeep 18/30 committed by the accused at any point of time and did not disclose to any police official that she was threatened or blackmailed by the accused on the basis of any photograph.
60. Ld. counsel for accused further submitted that before the registration of FIR prosecutrix was given counsel by one representative from NGO and after making inquiries from the prosecutrix she made observation that both accused and prosecutrix had extra martial affairs and when her husband came to know about it he refused to accept her.
61. Ld. counsel for accused further submitted that during the eqnuiries from One Raj Kumar who was also working in MCD and posted near the house of prosecutrix. He also told to the IO that accused Kuldeep used to come at the house of prosecutrix and even family member of prosecutrix were aware about their relationship and prosecutrix used to ask him to call Kuldeep at her house by making call to him.
62. Ld. counsel for accused further submitted that prosecution has also annexed call detail record of prosecutrix and accused which shows that both used to make call to each other and in the call detail, it is clearly shown that till date 09.08.2014 prosecutrix used to make call to the accused at his mobile No.7838510133 from her mobile No.8860413036.
63. Ld. counsel for accused further submitted that it is admitted that place of incident i.e. Roshnara Park is a crowded place and at the SC No.13/2015 State v. Kuldeep 19/30 time of the alleged incident of rape i.e. in the evening time, as stated by prosecutrix, several children and resident of that locality remain present in the park and it is not a secluded place and even several police official remain present in the park on duty. So, such type of incident cannot take place because prosecutrix stated during the examination in chief that she was lying unconscious in the park and her salwar was removed, it is unbelievable because throughout the day children and resident of that area alongwith local police remain present in the park.
64. Ld. counsel for accused further submitted that prosecutrix is a Govt.
Servant aged about 38 year, mother of two children having family therefore by no stretch of imagination it can be believed that she would keep mum for such a long period of 17 months and would not raise her voice despite of having all the opportunities.
65. Ld. counsel for accused further submitted that in her FIR prosecutrix did not state anywhere that accused demanded money from her and blackmailed her by using her photographs.
66. Ld. counsel for accused further submitted that accused has examined his wife Sushila and one Veeru as defence witness and they have deposed true facts before the Hon'ble Court. On these grounds, ld. counsel for accused has prayed for acquittal of accused from the charges.
PERUSAL OF RECORD:
67. Record perused. On perusal of record, it is revealed that on the SC No.13/2015 State v. Kuldeep 20/30 statement of prosecutrix Ex.PW2/A, present FIR Ex.1/A was registered. It is stated by the prosecutrix in the statement that she knew accused one and half years - two years prior; she was suffering from cervical pain and she used to go for exercise with accused and her husband to ease the same in Mandir Wali Gali, where Guruji used to get exercise done for her cervical pain and prosecutrix went there twice. It is further stated that one day in the month of March, 2013 accused made a phone call to the husband of prosecutrix making inquiry for going for exercise but he was on duty and sent the prosecutrix PW2 with accused stating that he would pick her up after exercise and accused took her to Roshanara Park instead of taking her in Mandir Wali Gali stating that such exercise was also being done there. It is further stated by the prosecutrix that when she was sitting in the park accused brought Campa softdrink and offered to her; after consuming the same she became unconscious and when she regained consciousness, it was already become dark and she realized that her Salwar had already been removed and accused was sitting there; when prosecutrix asked about her said condition, accused firstly refused but when she started crying accused told her that he had established physical relation with her when she was unconscious; she started crying and accused threatened her that he had already clicked her photographs and would show the same to her husband and she returned to her house she did not tell the incident to her husband due to fear.
68. It is further stated by the prosecutrix that after the said incident he started calling the prosecutrix at different places including Firozshah SC No.13/2015 State v. Kuldeep 21/30 Kotla and Purana Qila etc. by threatening her that you would send her photographs to her husband and used to establish physical relations with her without her consent and also used to click her photographs with you forcibly and also used to demand money from her.
69. It is further revealed that on 09.08.2014 prosecutrix gave her written complaint at Subzi Mandi Police Station but police did not take any action; on 29.08.2014 police called her to Subzi Mandi Police Station and PW8 W/Insp. Mukesh Devi (this witness has wrongly been examined twice as PW4 and PW8) recorded her statement Ex.PW2/A; she made endorsement Ex.PW4/A thereon and got the present FIR Ex.PW1/A was registered by PW1 HC Ram Avtar; PW1 also gave his certificate, Ex.PW1/C u/s 65 B of Indian Evidence Act qua the said FIR.
70. It is further revealed that on 30.08.2014 statement of prosecutrix PW2, Ex.PW2/B under section 164 Cr.PC was recorded by PW13 Ms. Riya Guha, Ld. MM, Tis Hazari Courts, Delhi pursuant to the application Ex.PW8/A of PW8 W/Insp. Mukesh Devi.
71. It is further revealed that prosecutrix PW2 has also produced her two complaints dated 19.06.2013 and 18.11.2014, Ex.PW2/C and Ex.PW2/D respectively in the court.
72. It is further revealed that on 17.11.2014 prosecutrix PW2 pointed out the place of incident to the police; PW9 W/SI Meena Yadav prepared SC No.13/2015 State v. Kuldeep 22/30 site plan Ex.PW9/C in this regard.
73. It is further revealed that PW8 W/Insp. Mukesh Devi also got the medical examination of the prosecutrix PW2 vide MLC Ex.PW5/A; Dr. Payal had conducted her medical examination and PW5 Dr. Navleen has identified her handwriting and signature on the MLC.
74. It is further revealed that on 29.09.2014 PW9 W/SI Meena Yadav interrogated accused vide interrogation report Ex.PW9/A.
75. It is further revealed that on 09.10.2014 prosecutrix PW2 has given her another complaint Ex.PW9/B regarding threat extended by accused to her.
76. It is further revealed that on 19.09.2014 PW3 SI Prakash interrogated accused pursuant to the directions of the court vide interrogation report Ex.PW3/A.
77. It is further revealed that PW6 SI Yogender Kumar got accused medically examined vide MLC Ex.PW10/A; his medical examination was conducted by PW10 Dr. Ritesh Chauhan and Dr. Nikunj Jain; PW14 Dileep has identified the signature and handwriting of Dr. Nikunj Jain on the MLC Ex.PW10/A. His medical examination was also conducted by Dr. Ashish Tyagi vide MLC Ex.PW6/A; PW11 Dr. Varun Garg has identified the signature and handwriting of Dr. Ashish Tyagi on the said MLC.
78. It is further revealed that in the intervening night of 29/30.08.2014 SC No.13/2015 State v. Kuldeep 23/30 PW7 Ct. Lal Singh had handed over the FIR Ex.PW1/A and rukka Ex.PW4/A to PW8 W/SI Meena Yadav at Hindu Rao Hospital.
79. It is further revealed that Sh. Anuj Bhatia, Nodal Officer, Vodafone Company vide his reply Ex.PW9/A to the notice under section 91 Cr.PC has provided certified copy of Customer Application Form alongwith copy of Icard issued in the name of accused, copy of driving license of accused, Ex.PW12/B (colly.), pertaining to his mobile number 9873689915; Sh. Anuj Bhatia has also provided certified copy of Customer Application Form alongwith ID proof issued in the name of Dalip S/o Ram Charan, pertaining to mobile number 8860413036, Ex.PW12/C (colly.).
80. It is further revealed that Sh. Anuj Bhatia, Nodal Officer, Vodafone Company has also provided certified copy of Customer Application Form alongwith ID proof issued in the name of Dalip S/o Ram Charan, pertaining to mobile number 8447181338, Ex.PW12/D (colly.); Sh. Anuj Bhatia has also provided certified copy of Customer Application Form alongwith ID proof issued in the name of Karan S/o Kuldeep, pertaining to mobile number 7838510133, Ex.PW12/E (colly.).
81. It is further revealed that PW12 Sh. Saurabh Aggarwal has identified the signature of Sh. Anuj Bhatia, Nodal Officer, Vodafone Company on the aforesaid documents; PW12 also identified the signature of Sh. Anuj Bhatia on the certificates under section 65 B of Indian Evidence Act, Ex.PW12/F, Ex.PW12/G, Ex.PW12/H and Ex.PW12/I qua the aforesaid mobile numbers; PW12 also identified the SC No.13/2015 State v. Kuldeep 24/30 signature of Sh. Anuj Bhatia on the certified copy of the CDRs Ex.PW12/J, Ex.PW12/K, Ex.PW12/L and Ex.PW12/M in respect of the aforesaid mobile numbers.
82. Before reaching at any conclusion, let the relevant sections i.e. 366, 328, 376(2)(n), 506 IPC be reproduced, which are as under :
366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid).
Section 328 IPC. Causing hurt by means of poison, etc. with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 376 (2) (n) IPC:
(2) Whoever,
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
83. I have heard arguments of both the parties and perused the record.SC No.13/2015 State v. Kuldeep 25/30
The offence of rape centered around the theory of consent which can only be determined on the basis of facts and circumstances brought on record during the trial. The following facts emerging from the evidence adduced by the prosecution and defence clearly establish that the prosecutrix has been consenting party to the physical relation established by the accused with her:
A. That on 21.07.2014 prosecutrix made a call on 100 number for police assistance vide DD No.8A and it was attended by DW1 SI Ravi Kumar. When he reached at the spot from where call was made, prosecutrix along with accused met him at the spot. Prosecutrix revealed to him that both were working as Safai Karamchari in MCD and they were friend for the last two years and due to their friendship her husband raised suspicion upon her and on that account he had thrown her out of house at about 11:30 - 12:00 midnight and she came to the house of accused. Prosecutrix further stated to SI Ravi Kumar DW1 that family of the accused were opposing to her relation with the accused and that they did not allow him to live with her and for that reason she made call on 100 number. In the meantime, the husband of prosecutrix namely Dalip along with his children also came up at the spot and told the DW1 SI Ravi Kumar that he did not want to keep his wife/prosecutrix with him and that he also handed over two children to her.
Prosecutrix also stated to the DW1 that she do not want to live with her husband and thereafter, she along with her two children went along with accused Kuldeep and that she also gave in writing stating SC No.13/2015 State v. Kuldeep 26/30 that she was going with accused with her free will. Accused also written a note stating the same fact. DW1 SI Ravi Kumar recorded DD No.33 B Ex.DW1/B forming part of the chargesheet wherein the said facts are mentioned. Prosecutrix remained with the accused w.e.f. 31.07.2014 to 04.08.2014 at different places and during this period she did not made any complaint either to her husband or any of her relative. The afoersaid facts of the case is itself sufficient to demolish the whole case of the prosecution and the version put forth by the prosecutrix against accused.
B. Before registration of present case, prosecutrix has also got another FIR bearing No.395/2014 u/s 308/34 IPC registered on 16.08.2014 at PS Subzi Mandi against the accused, his wife, his sister and his son. In that FIR, she stated that she has love affair with the accused. She did not make any allegation of rape against the accused at any point of time nor she disclosed anything to the police that she was threatened by accused or blackmailed by him on the basis of any photograph. Had the case been otherwise prosecutrix certainly would have mentioned the same in her said FIR?
CDR of mobile phones of both accused and prosecutrix clearly establish that prosecutrix had been in continuous touch with the accused as she had been making calls to him on his mobile number frequently. The said record clearly belies the version of prosecutrix that accused used to establish physical relation with her under any threat that if she would not obey him he would show her objectionable photographs to her husband. More so, investigating SC No.13/2015 State v. Kuldeep 27/30 agency could not recover any such photographs.
C. The place of incident is stated to be Roshanara Park and time of the incident stated to be evening time. The park is surrounded by residential area where people come for evening walk. As per prosecutrix, when accused took her to the said park, he served her cold drink "Campa" and after consuming the same she became unconscious. It had already became dark and she realized that her salwar was removed and the accused was standing there. On her asking accused told her that he had established physical relation with her. Such type of incident is most unlikely to happen in a park surrounded by residential area that too in the peak hours of evening, when people prefer to go to park for walk and children visit there for playing. As such, the aforesaid allegation of prosecutrix is difficult to accept.
D. There is delay of 17 months in lodging the FIR. Keeping in mind the aforesaid fact and circumstances of the case, such an inordinate delay also caused serious doubt in the story put forth by prosecutrix that accused used to blackmail her and on account of that he used to establish physical relation with her.
E. Accused had already examined three DWs in his defence. DW1 SI Ravi Kumar who had attended the call of prosecutrix recorded vide DD No.8A Ex.DW1/A and file the same vide DD No.33B Ex.DW1/B as elaborated in the preceding paragraphs of the judgment.SC No.13/2015 State v. Kuldeep 28/30
DW2 Veeru is also an employee of MCD and also a colleague of accused who deposed in the court that on 21.07.2014 at 9:30 p.m., accused called him at PS Subzi Mandi. When he reached there he heard the prosecutrix saying that "tum mujhe apne saath rakhoge toh mein kuch nahi karungi, agar isne saath nahi rakha toh mein usse barbaad kar dungi aur jail kara dungi".
DW3 Smt. Sushila is the wife of the accused who also deposed that prosecutrix visited her house on 21.07.2014 in odd hours at 4:00 a.m., she knocked the door and when she opened the same prosecutrix entered her house and when DW3 asked reason for the same, prosecutrix said to her that "mein Kuldeep se pyar karti hoon, yahin rahungi". A quarrel was ensured and prosecutrix made call at 100 number. Both prosecutrix and accused were taken to police station Subzi Mandi and a compromise was entered between them.
Next morning prosecutrix along with accused came to her house and said to DW3 "mai yahi rahungi". DW2 Veeru friend of the accused also happened to be there. He took both prosecutrix and accused to his house when DW3 did not allow prosecutrix to live in her house and they stayed there overnight. Thereafter, they also lived at different place for 4 days.
DW3 further deposed that on 16.10.2014 at about 11:00 a.m. when accused and his son gone to Rajasthan prosecutrix came at her house and started quarreling with her stating that "main yahi rahungi".
SC No.13/2015 State v. Kuldeep 29/30The aforesaid deposition of DW3 is in full consonance with the fact emerged during cross examination of prosecutrix by defence counsel and as such it strengthen the case of defence and further established that prosecutrix was obsessed towards the accused and wanted to live with him by hook or crook.
84. From the aforesaid scrutiny of evidence available on record, it is well established that prosecutrix indulged in physical relation with accused with her free will & consent and as such prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Kuldeep is acquitted from the charges u/s 366/328/376(2)
(n)/506 IPC.
85. In terms of Section 437 A Cr. P.C., accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
86. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 25.07.2017.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
SC No.13/2015 State v. Kuldeep 30/30