Delhi District Court
State vs Subhash Betha on 13 April, 2015
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0035402015
SC No. 18/15 Date of assignment : 29.01.2015
FIR No. 961/14 Date on which arguments
PS. Mandawali were heard : 13.04.2015
U/s. 342/328/370/109 Date of judgment : 13.04.2015
r/w sec. 376/376(2)(n) IPC
& U/s 3/4/5/9 of ITP Act
State Versus Subhash Betha
S/o Vakil Betha
R/o C-240, 1st Floor, Pandav Nagar,
Delhi
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 15.10.2014 DD No.15B dated 15.10.2014 regarding some quarrel at the spot i.e. Behind Radha Krishan Mandir, Pandav Nagar was received at the police station Mandawali. The said DD was marked to HC Arvind Kumar for taking appropriate action who reached the spot. Thereafter the case was marked to SI Deepa who reached at LBS Hospital where the prosecutrix and Ct. Manju were already present. SI Deepa called counselor SC No.18/15 State vs. Subhash Betha page 1 of 14 Meenakshi from NGO and the statement of the prosecutrix was recorded in the presence of the said counselor. In her statement, the prosecutrix made following allegations against the accused:
(a) Five years back, the prosecutrix came to Delhi from her village alongwith her aunt Anjali of her village for working as a domestic made servant.
Prosecutrix started working as a maid servant at South Extension. There she met the accused Subhash who was resident of village Tarnia, East Champaran, Bihar. Prosecutrix and the accused got married with each other.
(b) After about six months of their marriage, the prosecutrix came to know that the accused was part of prostitution trade at a rented room at Laxmi Nagar. Accused also brought the prosecutrix at Laxmi Nagar and he beat and forced her to indulge in prostitution. Three years ago, she gave birth to a female child. The accused forced her to indulge in prostitution even after the birth of their daughter. Accused also sent the prosecutrix to Dehradoon and Mussorie for prostitution. Accused used to call other girls for prostitution at his house and one lady Tina used to assist him in this work. On the day of lodging the present complaint i.e. on 16.10.2014 accused had called four or five persons to his house who forcibly made physical relations with the prosecutrix against her will.
SC No.18/15 State vs. Subhash Betha page 2 of 14 When the prosecutrix refused, accused beat her. On getting an opportunity, the prosecutrix managed to escape and made a phone call to the police. She requested that action be taken against the accused.
2. On the basis of the complaint of the prosecutrix, the present FIR No.961/14 u/s 323/342/370/376 IPC was got registered against the accused. Prosecutrix was medically examined at LBS Hospital on 15.10.2014. Statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the learned MM on 18.10.2014. Thereafter the accused was arrested. Accused Teena could not be arrested as her address could not be found. After completion of investigation, chargesheet under sections 323/370/376/34 IPC and under sections 3/4/5 Immoral Traffic (Prevention) Act was filed against the accused.
3. Since the major offence in this case was triable by the Court of Sessions, vide order dated 24.01.2015, learned M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
4. Vide order dated 31.03.2015, a charge under sections 342/323/370 IPC, under section 109 read with section 376/376(2)(n) IPC and under sections 3/4/5/9 SC No.18/15 State vs. Subhash Betha page 3 of 14 Immoral Traffic (Prevention) Act was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined two witnesses i.e. the prosecutrix as PW1 and Mrs. Reema Singh as PW2.
6. PW1 (prosecutrix) has not supported the case of prosecution on material aspects. She deposed that she is a permanent resident of village Varasaat, State of West Bengal. About five years back prior to lodging of this case, her aunt Anjali brought her to Delhi and she got her the job of domestic maid servant at South Extension, New Delhi where she met the accused Subhash who is resident of village Tarania, Bihar. Prosecutrix and the accused became friends and they got married. After their marriage, the prosecutrix alongwith the accused started living at Pandav Nagar, Delhi. Three years prior to this case, she gave birth to a female child. Prosecutrix further deposed that at the time of marriage, the accused was doing some private job at a shop. After some time, he started consuming alcohol and he stopped looking after her and her daughter. Accused also stopped giving money to her for household expenses. On 15.10.2014, some dispute occurred between her and the accused on the issue of giving money for day SC No.18/15 State vs. Subhash Betha page 4 of 14 to day expenses and the accused beat her. She came out of the house and made a call at 100 number to the police. After some time a PCR van came there and took her to LBS Hospital. Some police officials also reached there and the prosecutrix told them about the quarrel between her and her husband. At that time police had also called a member from NGO. She was counselled by that NGO member who advised her to make allegation of rape by other persons at the instance of her husband so that he may mend himself. Accordingly prosecutrix made allegations of commission of rape on her by other persons at the instance of accused to the police but the accused had not done so. She also deposed that at that time the police had obtained her signatures on some papers. She admitted having lodged the complaint Ex.PW1/A and being medically examined vide MLC Ex.PW1/B. On 18.10.2014 she was produced before the learned Magistrate and she was asked by the police officials to repeat the same allegations as made in the complaint. She further deposed that she made her statement under section 164 Cr.P.C. Ex.PW1/C against the accused at the instance of police officials which was not true and correct. She deposed that the accused made physical relations with her repeatedly with her free will and consent. Prosecutrix deposed that after registration of this case, her husband was arrested and later on he was SC No.18/15 State vs. Subhash Betha page 5 of 14 released on bail. She has deposed that since then she has been living happily in the matrimonial alongwith her daughter and husband (accused). She has further deposed that the accused never pressurised her to indulge in the prostitution and never beat her.
7. Since the prosecutrix did not support the case of the prosecution, she was cross examined by the learned Addl. Public Prosecutor. During her cross examination also, she did not support the case of prosecution and denied that she had voluntarily made the complaint Ex. PW1/A to the police. Prosecutrix also denied the accused brought her to a room at Laxmi Nagar and by force got her involved in prostitution. She also denied that the accused sent her to Dehradoon and Mussorie for prostitution. Prosecutrix also denied that on 16.10.2014 the accused had called four or five persons and they committed sexual intercourse with her by force and when she objected, accused beat her. She further denied that her husband had got her sexually assaulted by other persons also against her will and consent. She denied that the accused used to confine her at a room at Laxmi Nagar and used to beat her. She further denied that accused used to call other persons for committing rape on her.
SC No.18/15 State vs. Subhash Betha page 6 of 14
8. This witness was also cross examined on behalf of the accused. During her cross examination, the prosecutrix maintained that the accused never compelled or pressurised her to make physical relations with other persons. Prosecutrix admitted that she and the accused made sexual intercourse as husband and wife and no other person had performed sexual intercourse with her either on 15.10.2014 or before that. She maintained that she has been residing happily in the matrimonial home with her daughter and the accused and she does not want any action against the accused.
9. PW2 Smt. Reema Singh deposed that she is running a beauty parlor and a purse shop. She has also deposed that she knew the prosecutrix through the accused Subhash as he used to come to her house. She further deposed that the accused used to beat the prosecutrix and this witness made the accused understand not to beat his wife. She deposed that with her intervention the disputes between the prosecutrix and the accused got settled at the police station twice and even after that the accused used to beat his wife and he forced her to do wrong acts i.e. prostitution. This witness further deposed that she was running a committee and the accused was the member of that committee. She deposed that the SC No.18/15 State vs. Subhash Betha page 7 of 14 accused never deposited any installment of the committee and in May, 2014 his membership was discontinued.
10. During her cross examination on behalf of accused, this witness admitted that she herself has filed a complaint case under section 376/384 IPC against one Rakesh Pandey. She also admitted that she had also filed two or three complaints against two brothers of Rakesh Pandey also for extending threats to her.
11. In the testimony of PW1 (prosecutrix), no incriminating evidence has come on record against the accused to show that he had committed the alleged offences. The prosecutrix has deposed that the accused is her husband and she has been residing happily with the accused and their daughter and the complaint was got lodged due to some matrimonial dispute and the contents thereof are not true.
12. Perusal of chargesheet and material attached with the chargesheet would show that the remaining prosecution witnesses were either the police officials who were involved in the investigation of this case, the doctors who medically examined the prosecutrix and the accused, the learned MM who recorded the statement of the SC No.18/15 State vs. Subhash Betha page 8 of 14 prosecutrix under section 164 Cr.P.C and Ms. Meenakshi, representative of NGO. None of these witnesses have personal knowledge about the allegations made by the prosecutrix against the accused as would apparent from the material attached to the chargesheet. Since the material witness i.e. prosecutrix did not support the case of prosecution, no useful purpose would have been served in examining the remaining witnesses. Thus, the prosecution evidence was closed and statement of accused under section 313 Cr.P.C. was also dispensed with.
13. I have heard arguments addressed by learned Additional Public Prosecutor for the State and learned defence counsel and perused the record.
14. The accused is facing trial for the commission of offences punishable under sections 342/323/370 IPC, 109 read with section 376/376(2)(n) IPC and under section 3/4/5/9 of Immoral Traffic (Prevention) Act.
15. As far as offences punishable under sections 370 IPC and 109 read with section 376/376(2) IPC is concerned, the prosecutrix has deposed that the accused is her husband and they have one daughter aged about three years out of this wedlock. She has further deposed SC No.18/15 State vs. Subhash Betha page 9 of 14 that after a few years of their marriage, accused started consuming liquor and stopped looking after the prosecutrix and their daughter. He also stopped giving money to her for household expenses. Prosecutrix has further deposed that on 15.10.2014 some dispute arose between her and the accused and thus she made a call to the police at 100 number. She has deposed that after some time PCR van reached there and took her to LBS Hospital. She also deposed that one NGO lady had advised her to make allegations of rape against the accused so that he may mend himself and accordingly she (the prosecutrix) made allegations of rape by other persons at the instance of accused. In fact accused had not done so. She also deposed that she made her statement under section 164 Cr.PC. at the instance of the police officials which was not true and correct. She also deposed that after releasing on bail in the present case, her husband (accused) has been maintaining properly and she has been living happily in the matrimonial home with her family. She also deposed that the accused never pressurised her to indulge in prostitution and he never beat her. During cross examination on behalf of prosecution, she denied that the accused involved her in prostitution. She also denied that the accused sent her Dehradoon and Mussorie for prostitution. She was also denied that the accused used to SC No.18/15 State vs. Subhash Betha page 10 of 14 call other girls at her house to carry prostitution. Prosecutrix also denied that on 16.10.2014 accused had called four or five persons who had performed sexual intercourse with her forcibly and when she objected, the accused beat her. The prosecutrix has also denied that the accused had got her sexually exploited.
16. During her cross examination on behalf of accused also, the prosecutrix reiterated that the accused never compelled or pressurised her to make physical relations with other persons. She also deposed that she made physical relations with the accused with her will and consent as accused is her husband. She also deposed that she does not want any action against the accused.
17. No incriminating evidence has come on record in the statement of the prosecutrix to show that the accused had pressurised the prosecutrix to make physical relations with other persons.
18. PW2 has no personal knowledge about the allegations as she deposed that one Shivali who is mother of her friend and was working as maid servant in the house of accused had informed her that the accused used to force the prosecutrix to indulge in prostitution. The SC No.18/15 State vs. Subhash Betha page 11 of 14 prosecutrix has denied that the accused had got her indulged in prostitution or used to beat her. In view of the statement of the prosecutrix, the deposition of PW2 is of no consequence. Testimony of PW2 is at best in the nature of hearsay evidence. The accused is entitled to be acquitted of the alleged commission of offences punishable under sections 370 IPC and 109 read with section 376/376(2) IPC.
19. As far as offences punishable under sections 342/323 IPC is concerned, during her cross examination, the prosecutrix has denied that accused used to beat her or confine her in his room at Laxmi Nagar or at Pandav Nagar. During her cross examination on behalf of accused, she has admitted that the accused had never beaten her nor threatened her in any manner. Prosecutrix also deposed that she is living happily with her husband (accused) in the matrimonial home alongwith their daughter and she does want any action against the accused. In these circumstances, no incriminating evidence has come on record to connect the accused with the commission of offences punishable under sections 342/323 IPC. Thus, the accused is acquitted of the offences punishable under sections 342/323 IPC.
20. The prosecutrix has also not supported the case SC No.18/15 State vs. Subhash Betha page 12 of 14 of the prosecution as far as offences punishable under sections 3/4/5/9 of Immoral Traffic (Prevention) Act are concerned. She has deposed that the accused never made her indulge in prostitution and he never beat her. The prosecutrix has denied that the accused was carrying prostitution at tenanted room at Laxmi Nagar and he also involved the prosecutrix in the trade of prostitution. She also denied that the accused had got her sexually exploited by other persons against her will and consent. She also denied that the accused used to force her to make physical relations with other persons for money or used to call other girls for his customers. During her cross examination on behalf of accused, the prosecutrix has admitted that the accused never compelled her to make physical relations with other persons. She has also stated that the accused never received any money from prostitution and he never involved her in prostitution business either on 15.10.2014 or before that. She also deposed that the accused is her husband and she is residing happily with her with their daughter.
21. No incriminating evidence has come on record in the statement of the prosecutrix to connect the accused with the alleged commission of offences punishable under sections 3/4/5/9 of Immoral Traffic (Prevention) Act. Thus, SC No.18/15 State vs. Subhash Betha page 13 of 14 the accused is entitled to be acquitted of the offences punishable under sections 3/4/5/9 of Immoral Traffic (Prevention) Act.
22. In view of above discussion, it is held that the prosecution has not been able to prove its case against the accused for the offences punishable under sections 342/323/370 IPC, 109 read with section 376/376(2)(n) IPC and under sections 3/4/5/9 Immoral Traffic (Prevention) Act. Thus, the accused Subhash Betha is acquitted of the offences punishable under sections 342/323/370 IPC, 109 read with section 376/376(2)(n) IPC and under sections 3/4/5/9 Immoral Traffic (Prevention) Act. It is ordered accordingly.
23. File be consigned to record room after necessary compliance.
Announced in the open court on 13.04.2015 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No.18/15 State vs. Subhash Betha page 14 of 14