Delhi District Court
This Order Shall Dispose Of The Argument ... vs Unknown on 30 May, 2012
In the court of Sh. Atul Kumar Garg, Additional Sessions Judge,
South District, Saket Court, New Delhi.
Sessions Case No. 21/2012.
In the matter of :
State
Versus
Rupesh Kumar,
S/o Sh. Jai Prakash,
R/o 158, Harijan Basti,
Rajkari Pahari, New Delhi.
FIR No. : 424/2010
Under section. : 376/384 IPC.
Police Station : Mehrauli.
Case received on : 04.01.2012.
Reserved for order on : 30.05.2012.
Date of decision : 30.05.2012.
Order on Charge
1.This order shall dispose of the argument on the point of charge. Learned counsel for the accused has argued that the present case is the counter blast of the case filed by the accused under section 420 Cr.P.C. State v. Rupesh Page No.1/10 He had argued that during the course of investigation, police had not prepared any site plan where rape was alleged to have been committed. He argued that in the present case, the IO did nothing except to file the chargesheet. Even no objectionable photographs were ever seized. Even the IO had not recorded the disclosure statement of accused regarding the fact that whether he had committed the offence. He submitted that even from the bare perusal of the complaint, it appears that the complainant had only mentioned in the complaint that the applicant had established the physical relation with her upon the promise of marriage otherwise there was no material on judicial file to connect the accused for the said offence. Moreover as per MLC, doctor has mentioned the history of medical termination of pregnancy one and half year back and the IO has not investigated the case in this regard.
2. On the other hand, learned counsel for the State has admitted that there are lapses in the investigation as the IO has not prepared the site plan where the accused had made physical relation with the complainant. Neither the IO recorded the statement of the prosecutrix nor she had seized anything from the place where the physical relation State v. Rupesh Page No.2/10 had been established. He further conceded that the IO had not investigated the case in respect of the history of medical termination of pregnancy one and half year back, as mentioned in the MLC. But he has submitted that the case under section 376 clause (2) IPC is made out because the accused had made physical relation with the complainant on the promise of marrying her.
3. I have heard the argument at bar and gone through the record of the present case as well as the law in which the accused was charged by the police. As per judicial record, the present FIR was registered on 09.10.2010 on the complaint of the prosecutrix where she had alleged that she and the accused in 20032004 were doing the course at Akshay Prathisthan School. There one Nidhi Sehrawat also did the course and she was her friend and she and the accused used to meet each other. Accused was also studying one class ahead and therefore she also met with him. She was having love affair with the accused since 2007 and accused used to call her at her home on phone and call at Mehrauli Bazar, there accused had made physical relation with her on the pretext of marrying her and also took her some objectionable photographs. Thereafter, behaviour of the accused was changed and State v. Rupesh Page No.3/10 he was keeping distance from her. He also told her that he was having some photographs of her and on that basis he will blackmail her. On 12.01.2010, accused had called her through telephone at Mehrauli Bazar and had given some papers having tickets and she was made to sign. On 22.01.2010 accused had called her to come at D3, Vasant Kunj and also told her that Bharat, his maternal brother, had also come and he will show the photographs to her family members as well as post them to TV. She was also asked to sign some papers. She had also come to know on the basis of that papers, accused had filed the case. She submitted that accused had cheated her.
4. During the course of investigation, police collected the Call Detail Record of accused where he was found to talk with the complainant so many times. Police had also come to know that the accused had filed a case against the prosecutrix and her family members. The case property was sent to FSL. Result has also being filed on record.
5. Section 225 to 228 of Cr.P.C., deals with the trial of sessions cases before the court of sessions. For the sake of convenience, State v. Rupesh Page No.4/10 section 225 to 228 Cr.P.C. are reproduced hereunder :
225. Trial to be conducted by Public Prosecutor.In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
226. Opening case for prosecution.When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and sating by what evidence he proposes to prove the guilt of the accused.
227. Discharge.If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial State v. Rupesh Page No.5/10 Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrantcases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
6. From the abovesaid sections, it appears that upon the commitment of the case, it is the duty of the prosecution to open its case by describing the charge brought against the accused and stating that by what evidence it proposed to prove the guilt of the accused. If the court considered after hearing the submissions of the accused and the prosecution and considering the record and documents that there is no sufficient ground to proceed against the accused then he shall discharge the accused. If the court reach to the conclusion that there was a ground of presuming that the accused had committed an offence, then the court shall frame the charge. State v. Rupesh Page No.6/10
7. Herein the accused was charged for the offence under section 376 and 384 IPC. Section 375 of IPC defines the offence of rape. There are six circumstances enumerated in section 375 IPC when a man can be charged with the offence punishable under section 376 IPC. Section 384 IPC provides the punishment of the offence. Section 375 and 384 of IPC reproduced herein for the sake of convenience :
375. Rape.A man is said to commit "rape"
who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First.Against her will.
Secondly.Without her consent.
Thirdly.With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.With or without her consent, when she is State v. Rupesh Page No.7/10 under sixteen years of age.
384.Punishment for extortion.Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
8. Now considering the evidence brought by the prosecution to prove the abovesaid case. The prosecution is in possession of the evidence of the prosecutrix as well as the doctor and the Nodal Officer. Prosecutrix in her statement has herself mentioned that the accused has filed a case upon her. She has not described the nature of the case but the case has been filed under section 420 IPC against the prosecutrix as well as her family members and the trial is still pending.
9. The prosecution has charged the accused for the offence under section 376 IPC stating that the accused used to make physical relation with the prosecutrix, but no date, time and place has been disclosed by the prosecutrix where the physical relation were alleged to have been made by the accused. Mehrauli Bazar is a public place and the accused is not expected there to have made physical relation with the prosecutrix. The IO has not made any efforts as to where the physical relations have been established and what was seized from there. Even State v. Rupesh Page No.8/10 the IO has not recorded the disclosure statement nor she had made any effort for recovery of the objectionable photographs nor the accused was asked for getting recovered the abovesaid photographs, on which basis the prosecution has alleged that accused blackmailed the prosecutrix. The papers had already been signed and the prosecutrix had come to know about those documents before registration of the case as it was revealed from the complaint itself on which basis, the accused had also filed a case against her and her family members. The more startling fact herein is that the IO had collected the MLC of the prosecutrix in which history was mentioned by the doctor about one medical termination of pregnancy about one and half year back. Neither the prosecutrix has stated anything about this fact nor the accused was ever been asked about to disclose this fact. There was no mark of any injury when the prosecutrix was medically examined. From the evidence brought by the prosecution herein, it appears that the prosecution has not in possession of sufficient material to proceed against the accused either under section 376 or 384 IPC.
10. Considering that there is no sufficient ground to proceed against the accused either under section 376 or 384 IPC, the accused is State v. Rupesh Page No.9/10 discharged from the abovesaid offences. His bail bond and surety bond stand cancelled and discharged. File is consigned to record room.
Announced in the open Court (Atul Kumar Garg) On 30.05.2012. Additional Sessions Judge04, South District, Saket Courts, New Delhi.
State v. Rupesh Page No.10/10