Delhi District Court
State vs Pankaj Sharma on 30 March, 2015
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 67/2013
Unique ID No. : 02401R0205482013
State Versus Pankaj Sharma
S/o Sh. Ashok Sharma
R/o Flat No. G2, Plot No. 96C,
Bal Vihar, PS Jhotwara, Jaipur,
Rajasthan
Case arising out of:
FIR No. : 10/2013
Police Station : Hauz Qazi
Under Section : 376/328/342/506/509 IPC
Judgment reserved on : 24.03.2015
Judgment pronounced on : 30.03.2015
JUDGMENT
Brief Facts:
1. The above named Accused is facing trial in this case on the charges that during the period w.e.f. 12.07.2012 to 26.10.2012 at different places including Hotel Hari Kripa, Pahar Ganj, Delhi and Jaipur, he committed rape upon the Prosecutrix 'PS' [name withheld to protect the identity of Prosecutrix] and that he criminally intimidated her by threatening to harm her reputation by circulating her photographs on internet and MMS and also by threatening to kill her husband and daughter.
Case as per Chargesheet:
2. The case in hand was registered on the basis of complaint made by Complainant/Prosecutrix 'PS' [name withheld to protect the identity of Prosecutrix] wherein she stated that she is residing on rent in Delhi alongwith her husband. She got married to one Virender Sharma on 23.07.2007 at Firozpur, Punjab. She gave birth to a girl child on 02.05.2009. Thereafter, she came to Delhi alongwith her husband on 19.08.2011 and lived on rent. She stated that she started living alongwith her husband and child to the house of her father.
3. Prosecutrix stated that in April 2012 Accused Pankaj Sharma, who is friend of her husband, started visiting her house. He used to treat her as sister and used to address her husband as jija. On 12.07.2012 Accused Pankaj came to her house and told her husband that he wants to purchase some articles for his sister. Her husband agreed to send her with Accused. Then, she alongwith her daughter went with Accused to Eerri Chowk, Pahar Ganj for purchasing articles for sisters of Accused. Accused Pankaj asked her to eat something, but she refused. On his persistent requests, Accused took her to hotel Hari Kripa at Pahar Ganj where he had already booked a room. Accused took her I card. Accused ordered for food and drink in the room and after consuming the drink, she had a headache and her head started spinning. In the evening at around 5 PM, she regained consciousness and found that her daughter was crying. She realized that Accused had established physical relations with her. Prosecutrix alleged that Accused threatened her that he had made her MMS and also took some photographs and if she disclosed anything to anyone or complaint in the police, he will upload the same on internet. Prosecutrix alleged that Accused also told that her will have to come wherever he call her. Thereafter, on 24.07.2012 Accused called her at hotel Hari Kripa where Accused established physical relations with her. Accused again called her on 09.08.2012 and established physical relations with her without her consent and under threat. She alleged that Accused made her write a letter under threat which was against her husband and family members. He also made her write that she is willingly leaving her house alongwith her daughter. On 13.08.2012 she alongwith her daughter left her house due to threats of Accused after leaving a letter and went to Jaipur by train. Accused Pankaj met her at the railway station and took her to hotel Mahadev where they stayed from 13.08.2012 to 17.08.2012 and treated her as his wife. From 18.08.2012 to 05.09.2012 he kept her at Govindpuri, Jaipur in a rented accommodation and from 05.09.2012 to 11.09.2012 he took her at hotel Mahadev, Jaipur where they stayed like husband and wife. They stayed in a rented accommodation at Vaishali, Jaipur from 12.09.2012 to 26.10.2012 by making her as his wife and forcibly established physical relations with her without her consent.
4. On 26.10.2012 Prosecutrix came to Delhi from Jaipur. Prosecutrix alleged that Accused used to tell her that she should not have any relations with her husband and if she refused to pick up his phone, he used to text her obscene messages and also threatened her to kill her husband and daughter.
5. Prosecutrix further alleged that Accused got married on 28.11.2012 and even after that he established physical relations with her and used to threaten her and also used to text her obscene messages. Finally, she confided in her husband and jija Rohit Sharma and she made a complaint against Accused in the PS. Prosecutrix alleged that Accused made a call to her and asked her to withdraw her complaint and also offered her money for the same.
6. On the basis of aforesaid, case under Section 328/342/506/509/376 IPC was registered against Accused.
7. During investigation, Prosecutrix was taken to LNJP Hospital for medical examination. However, she refused to give her consent for the same. At the instance of Prosecutrix, pointing out memo of room of the hotel was prepared. Documents regarding entry in hotel register were seized and statement of witnesses were recorded.
8. During investigation, Prosecutrix led the police to Mahadev Hotel, Vaishail, Chittrakut and Govindpuri at Jaipur where she stayed alongwith Accused as husband and wife and Accused established physical relations with her without her consent. Site plans of places of incident were prepared. At the instance of jija of Prosecutrix, Accused Pankaj Sharma was arrested. Disclosure statement of Accused was recorded. During PC remand of Accused his clothes, two mobile phones and SIM cards were seized from his house. Mobile phone of victim was also seized. Blood sample of Accused was also seized. Seized mobile phone was sent for data retrieval and blood sample was sent for opinion to FSL, Rohini. Charges:
9. On the basis of material on record, Accused Pankaj Sharma was charged for offence punishable under Section 376/506 IPC. Accused pleaded not guilty and claimed trial when the charges were read over and explained to him.
Prosecution Evidence:
10. The Prosecution though cited as many as 20 witnesses, however, only 07 witnesses were examined on record. PW1, 2 and 3 were examined by Prosecution in order to prove the entries in the guest register of hotel Hari Kripa, Pahar Ganj, Delhi with regard to stay of Accused and the Prosecutrix in the said hotel. The relevant entries are Ex. PW1/B to Ex. PW1/D. The guest register was seized vide seizure memo Ex. PW1/A.
11. The Prosecutrix was examined as PW4. Her statement in court shall be discussed in detail during the course of discussion in the judgment.
12. PW5 is Duty Officer, who register FIR and made computerized copy of the same Ex. PW5/A.
13. Husband of the Prosecutrix was brought into the witness box as PW7 while IO/SI Sangeeta was examined as PW6. PW6 SI Sangeeta deposed that on 22.01.2013 she was posted as SI at PS Chandni Mahal. On that day, she was called at PS Hauz Qazi. Prosecutrix 'PS' met her alongwith her brother in law namely Rohit Sharma in PS Hauz Qazi. She recorded the statement of Prosecutrix Ex. PW4/B and prepared a rukka Ex. PW6/B and got registered the FIR. SI Sangeeta took the Prosecutrix to LNJP Hospital where she was medically examined. Prosecutrix refused to get conducted her internal examination. She collected the MLC. Prosecutrix led them to hotel Piorko at Pahar Ganj and pointed out the same stating to be the place of incident vide memo Ex. PW4/C.
14. SI Sangeeta served the notice to the Manager of Hotel Piorko and seized the documents as per seizure memo already Ex. PW1/A and the said documents are alreadyd Ex. PW1/B to Ex. PW1/J. On 25.01.2013 Rohit Sharma came to PS and handed over the mobile phone of Prosecutrix to her which she seized vide seizure memo Ex. PW6/B.
15. PW6 SI Sangeeta further deposed that on 28.01.2013 she alongwith Prosecutrix, her brotherinlaw and staff went to Jaipur in search of Accused. In Jaipur Prosecutrix point out the hotel Mahadev stating to be the place of incident vide memo Ex. PW4/D. She also seized the relevant document from hotel Mahadev vide seizure memo Ex. PW6/B1. They also went to the house of Accused in Jaipur. Accused was apprehended at the instance of Rohit Sharma. On interrogation, Accused Pankaj Sharma was arrested vide arrest memo Ex. PW6/B and his personal search was conducted vide memo Ex. PW6/D. They came back to Delhi. Accused was medically examined in LNJP Hospital and his potency test was conducted vide MLC Ex. PW6/E [not disputed by Accused]. Accused was taken on PC remand. The blood sample of Accused was taken vide MLC Ex. 6/F [not disputed by Accused]. Exhibits were deposited in the malkhana.
16. PW6 SI Sangeeta further deposed that they again went to Jaipur alongwith the Accused. Accused pointed out a house i.e. Plot D45, Shri Ram Nagar Kirni Fatak 80 feet road and Plot No. 185, Balaji Vihar, Govind Pura, Jaipur, where the Prosecutrix was stated to be kept by Accused. SI Sangeeta prepared the pointing out memo which is Ex. PW6/G. She also seized one mobile phone make Nokia and one mobile phone make Samsung. One SIM card was also seized from the possession of Accused vide seizure memo Ex. PW6/H. Clothes of the victim were seized vide seizure memo Ex. PW6/I. They came back to PS and SI Sangeeta deposited the exhibits in the malkhana.
17. During investigation, SI Sangeeta sent the exhibits to FSL, Rohini, recorded the statements of witnesses, collected the relevant copies of DD entry which are Ex. PW6/J1 to Ex. PW6/J7. After completion of investigation, chargesheet was prepared and filed in court. The FSL result is Ex. PW6/K [running into 06 sheets] [not disputed by Accused]. Statement of Accused and Defence Evidence:
18. The incriminating evidence on record was put to the Accused in his statement recorded under Section 313 CrPC. It is noteworthy that though the Accused admitted having entered into physical relations with the Prosecutrix/PW4, however, he claimed that said physical relations were established with the consent of the Prosecutrix.
19. He also claimed that he is innocent and has been falsely implicated by the Prosecutrix in this case. He stated that he got in touch with Prosecutrix in May, 2011 through Facebook. In November, 2011, PW4/Prosecutrix again contacted him and thereafter, they started chatting through Facebook on regular basis and developed friendship. Prosecutrix was not having cordial relations with her husband. She herself came to meet him in Jaipur and at her request, he arranged rented accommodation for her. Prosecutrix also established physical relations with him with her consent. The mobile phone number 9829839392 was being used by Prosecutrix herself and it used to remain with her exclusively and all the messages were sent by Prosecutrix herself and not by him.
20. Accused further stated that Prosecutrix made false complaint against him as he got married on 28.11.2012 and thereafter, he refused to remain in touch with her. He also refused to lend her money after he got married and that is why she has falsely implicated him in this case.
21. Accused thereafter moved an application under Section 315 CrPC and examined himself in his Defence as DW1. In his detailed testimony, he again reiterated that he was having consensual sexual relations with the Prosecutrix.
Arguments, Analysis and Findings:
22. I have considered the submissions made by Ld. Defence Counsel as well as Ld. Addl. PP and gone through the entire evidence on record in minute detail.
23. Undoubtedly, in the present case, it being a case for offence under Section 376 IPC, the most important witness of the Prosecution is none other than Prosecutrix herself. The entire Prosecution case hinges on her testimony and it thus, needs to be scrutinized carefully.
24. Prosecutrix 'PS' stepped into the witness box as PW4. She deposed that she was married in the year 2007 and is having 4 ½ years old daughter. She started living at the house of her parents at Sita Ram Bazar in April, 2012. She deposed that Accused was friend of her husband and used to visit her and call her as his sister.
25. As per Prosecutrix, on 12.07.2012 Accused came to her house and requested her husband to allow him to take her alongwith him to the market for purchasing some articles. Her husband agreed and she alongwith her daughter went to the market with Accused, but Accused took her to hotel Hari Kripa at Pahar Ganj and told her that they should eat something before purchasing articles. Accused ordered for food and drink in the room and after consuming the drink at about 1 PM, she became unconscious. As per PW4, she regained her consciousness at about 5 PM and realized that she had been raped by the Accused. When she asked the Accused about the same, he threatened her that he had prepared a MMS clips and photographs and would upload them on the internet, if she disclosed it to anyone. He also threatened to kill her daughter and stated that as and when he will call her, she have to come. Due to the aforesaid threats, she did not tell about the incident to anyone.
26. As per PW4, Accused again called her in the said hotel where she alongwith her daughter reached there and Accused raped her after giving her same threat. This was again repeated on 09.08.2012 as per testimony of Prosecutrix. She also claimed that she was forced by the Accused to write a letter to her husband stating that she is leaving her house willingly. On 13.08.2012 under threat of Accused, she left her house while leaving a letter at home. She got a train from Old Delhi Railway Station and reached Jaipur where Accused met her and took her to hotel Mahadev where they stayed till 17.08.2012. PW4 also deposed that from 18.08.2012 to 05.09.2012 she stayed in a rented house at Govindpuri, Jaipur as his wife and then again from 05.09.2012 to 11.09.2012 they stayed at hotel Mahadev. Thereafter, he made her stay as his wife in a rented house at Vaishali, Jaipur and during her stay, he continued to commit rape upon her while threatening her in the aforesaid manner. She also claimed that Accused used to give beatings to her daughter. On 26.10.2012 she managed to escape alongwith her daughter and came back to Delhi.
27. As per Prosecutrix on the next date, she went to Ahmedabad to the house of her parents, who had shifted there in 2011. She claimed that Accused continued to call her and send her obscene messages even after he got married on 28.11.2012. She finally made a complaint to the police on 10.01.2013 which is Ex. PW4/A. She was called to PS on 22.01.2013 where her statement under Section 4/B was recorded and the case in hand was registered thereupon.
28. On the basis of the aforesaid testimony of Prosecutrix/PW4, Ld. Addl. PP strongly argued that Prosecutrix was raped by the Accused and the charges for offence under Section 376/506 IPC stands duly proved on record against him and that he should be convicted for the same.
29. On the other hand, Ld. Defence Counsel vehemently opposed the case of the Prosecution. He drew my attention to the complaint Ex. PW4/A and submitted that Prosecutrix was duly confronted with said complaint where she has mentioned that on 12.07.2012, Accused took her outside Delhi when she was in state of intoxication. He submitted that contents of the said complaint are clearly at variance with case of the Prosecution and testimony of Prosecutrix in court is clearly an improvement over her earlier version. Ld. Defence Counsel further pointed out that Prosecutrix admitted in her crossexamination recorded on 06.11.2013 that when Accused had taken her to Jaipur, he had given her his SIM card and one mobile phone and that he was using that phone in Jaipur.
30. It is contended that Prosecutrix did not make any attempt to escape, despite the fact that she was in possession of mobile phone in Jaipur, which was incidently given to her by the Accused himself. It is further submitted that admittedly she purchased train ticket for going to Jaipur on 13.08.2012. Moreover, as per her own statement, she remained in Ahmedabad in the house of her parents till 09.12.2012 after returning to Delhi from Jaipur, but admittedly she did not make any complaint against Accused even during her stay at Ahmedabad i.e. at house of her parents.
31. Ld. Defence Counsel also drew my attention to the photocopy of register sheets Ex. PW4/DA [colly], which are admittedly in the handwriting of the Prosecutrix. He also pointed out that it is admitted by PW4 that the first sheet was written by her in Jaipur on 22.10.2012. He argued that if as per version of Prosecutrix, she was kept by the Accused in the house at Jaipur under threat, there was no occasion for her to write the said register sheets Ex. PW4/D. Moreover, it is not the claim of the Prosecutrix at any time prior to recording of her testimony that Accused ever used to give any beatings to her daughter. Hence, her testimony that Accused used to given beatings to her daughter is clearly an improvement and cannot be accepted.
32. Lastly, Ld. Defence Counsel took me through cross examination of PW6 IO/SI Sangeeta. She admitted in her cross examination that during the course of investigation, she made enquiries from one one Veena Rughani, who was landlord of H. No. 224, Sector6, Chitrakoot, Jaipur where Accused and victim had lived for rent. PW6 IO/SI Sangeeta also admitted that she had recorded statement of Veena Rughani, which is Ex. PW6/DA. Ld. Defence Counsel submitted that though Veena Rughani was not brought into the witness box by the Prosecution, however, a bare perusal of her statement Ex. PW6/DA recorded during investigation would clearly reveal that Accused and Prosecutrix alongwith daughter of the Prosecutrix lived in the house of Veena Rughani as husband and wife. He submitted that entire case of the Prosecution is false. In fact, Prosecutrix had entered into physical relations with Accused with her consent and falsely implicated him later on after he refused to remain in touch with her after getting married on 28.11.2012.
33. I have carefully considered the submissions made before me and gone through the evidence on record.
34. It certainly appears on going through the testimony of the Prosecutrix 'PS' that she lived at various places including hotel Hari Kripa at Pahar Ganj and in a rented house at Jaipur with Accused out of her own will.
35. It is noteworthy that Prosecutrix PW4 claimed that she did not disclose about the alleged rape committed by the Accused upon her as the Accused had threatened to upload her objectionable photographs/MMS on the internet. However, the Prosecutrix in her entire testimony, did not even whisper that she had ever seen any such MMS or objectionable photographs or that Accused even showed her at any point of time. It is also pertinent to note that as per her own claim, she was unconscious when Accused allegedly committed raped upon her on 12.07.2012 in the hotel. Hence, it cannot be accepted that she had seen Accused making any such objectionable photographs/MMS. Moreover, Prosecution failed to bring on record any scientific evidence for proving that mobile phone of the Accused which was seized during the course of investigation had any such objectionable photograph or MMS of the Prosecutrix. Rather, as per report of FSL Computer Forensic Unit Ex. PW6/K, the facility to examine mobile phones was not available in FSL laboratory and data could not be retrieved. Significantly, the Investigating Agency made no further attempt to send mobile phone of the Accused to any other laboratory in order to verify where it had any photographs or MMS of the Prosecutrix. Accordingly, it is apparent that Prosecution has completely fail to establish its case that Accused had any objectionable photographs or MMS of the Prosecutrix.
36. Consequently, the case of the Prosecution that Accused continued to rape her on the threat of uploading her any such objectionable photographs or MMS must also necessarily fail.
37. I also find myself inclined to accept the submissions of Ld. Defence Counsel that there was no reason whatsoever as to why Prosecutrix could not seek help from anyone from Jaipur during the period when she was allegedly kept by Accused as his wife. Admittedly, she was having mobile phone with, her which incidently was given to her by the Accused himself. Further, there is no plausible explanation as to why she did not make any complaint against Accused even from the house of her parents at Ahmedabad where she lived till 09.12.2012. The claim of the Prosecutrix that she was afraid due to the threats of the Accused has already been rejected in view of the above discussion.
38. From a perusal of entire evidence on record and the aforesaid discussion, it thus appears that allegations for offence under Section 376/506 IPC do not stand proved on record.
39. Consequently, Accused Pankaj Sharma S/o Sh. Ashok Sharma is hereby acquitted for offence under Section 376/506 IPC.
40. File be consigned to Record Room.
Announced in the Open Court on 30.03.2015 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
State Vs. Pankaj Sharma FIR No. 10/13 PS : Hauz Qazi SC No. : 67/13 30.03.2015 Present : Sh. Mohd. IqrarLd. Addl. PP for the State.
Accused on bail with Ld. Counsel Sh. R. P. Singh, Adv. Vide judgment announced of even date on separate sheets, Accused Pankaj Sharma is acquitted for offence under Section 376/506 IPC.
Accused is directed to furnish bail bond to the tune of Rs. 15,000/ with one surety in the like amount in terms of Section 437A CrPC.
Bail bond furnished and accepted.
File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.