Delhi District Court
State vs . Deepak on 31 August, 2017
IN THE COURT OF MS. ANU GROVER BALIGA
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No. 9419/16
FIR No. 518/15
PS Vasant Kunj (S)
U/s. 376/506 IPC
State Vs. DEEPAK
S/o Sh. Kaptan Singh
R/o VPO Udlepur (Tharu), PS Sadar,
Sonipat, Distt Sonipat, Haryana
Date of Institution - 03.10.2015
Date of Committal - 01.07.2016
Arguments heard/Order reserved - 25.08.2017
Date of judgment - 31.08.2017
Final order - Acquittal.
JUDGEMENT
1. The accused has faced trial in the present case for having committed the offences punishable U/s. 376(2)(n), 313, 354D and 506 of Indian Penal Code (hereinafter referred to as 'IPC').
Page 1 of 202. Briefly stated the relevant facts are as follows:
(a) On 08.05.2015, the prosecutrix made a complaint at PS Vasant Kunj (S) wherein she inter alia narrated that she is a graduate and she resides with her family in Sonepat and that in the year 2012, she was working at SMC Global Securities Ltd., Daryaganj and she used to travel to Delhi from Sonepat in a local passenger train.
(b) She has further narrated that on 21.03.2012, she met the accused for the first time while travelling in the local train and gradually both of them became friends and started going out.
(c) It was further alleged in the said complaint that on 24.03.2013, the accused, Deepak, took her to the house of his friend, one Ashwani, at Rangpuri and that when the said friend left the said house for a little while, the accused forcibly established physical relationship with her and thereafter assured her that he would be marrying her.
(d) It was further alleged in the complaint that on the basis of the assurances given by the accused, the prosecutrix continued to meet him and continued to maintain a physical relationship with him and that during this period, she also became pregnant, twice, and that the accused got the said pregnancy terminated by giving her some pills.Page 2 of 20
(e) It was also further alleged in the complaint that in August 2014, the prosecutrix came to know that the accused had got married and that therefore, she did not want to continue her relationship with him but that the accused was continuing to harass her and threaten her that in case she does not continue her relationship with him, he would inform her brother about the same.
(f) It was further alleged in the said complaint that on 28.02.2015 and 26.04.2015, the accused forcibly took the prosecutrix to Shivam Palace, Karol Bagh, and established forcible sexual relationship with her by threatening her.
3. The grievance of the prosecutrix was thus that the accused firstly had sexually exploited her by falsely assuring her that he would be marrying her and was now continuing to harass her though she was now not wanting to continue her relationship with him.
4. Pursuant to the filing of the aforesaid complaint, the present FIR was registered, the prosecutrix was taken for medical examination and her statement under section 164 Cr.PC was got recorded by Ld. MM. In the said statement, the prosecutrix reiterated the allegations made by her in the complaint dated 08.05.2015.
Page 3 of 205. On the basis of the complaint made by the prosecutrix, the accused was arrested and after investigation, the present charge sheet was filed.
6. On the basis of the material available on record, the Ld. Predecessor of this court had framed charges against the accused for having committed the offences punishable under section 376(2)(n), 313, 354D and 506 of IPC.
7. In support of its case, the prosecution has examined 5 witnesses in all. PW1 is the prosecutrix herself, PW3 is Ashwani, the friend of the accused in whose premises the accused for the first time established forcible sexual relationship with the prosecutrix, PW2 is the landlord of PW3 i.e. Ashwani, PW5 is the main investigating officer and PW4 ASI Mangal Ram is one of the police officials who had assisted the IO in the investigation of the present case.
8. For the sake of brevity, the evidence given by each of these witnesses is not being spelt out in detail herein and will be discussed in the later part of this judgment.
9. During trial, the Defence had admitted the medical examination report of the prosecutrix and that of the accused, the registration of the FIR, recording of the statement of the prosecutrix by the Ld. MM under section Page 4 of 20 164 Cr.PC, the CDRs of the prosecutrix and the accused, FSL report, Visitors Register of hotel Shivam Palace, Karol Bagh. Accordingly, vide orders dated 15.02.2017, the Ld. Predecessor of this court had exhibited the said documents and had allowed the prosecution to drop the witnesses who were to be summoned for proving the said documents.
10. The depositions of the five witnesses that the prosecution had produced and the aforementioned admitted documents were put to the accused and his statement was recorded under section 313 Cr.PC. In the said statement, the accused has inter alia taken a stand that he never had sexual relations with the prosecutrix but that he was good friends with her. Apart from the statement i.e. recorded in court, an additional written statement under section 313 (5) Cr.PC was also placed on record by the Defence. No defence evidence has been led by the accused and after the statement of the accused was recorded under section 313 CrPC, on behalf of the state, Additional Public Prosecutors Sh. Inder Kumar and Sh. Kamal Akhtar have advanced final arguments and on behalf of the accused Ld. Counsel, Sh. Amit Balyan has made his submissions. Written submissions have also been filed on record by the Defence. It is also relevant to mention herein that during final arguments, this court has viewed DVD1, which had been prepared by the FSL expert Sh. Kailash Kumar and admittedly contains the images/ pictures found to be stored in the memory card of the mobile of the accused.
Page 5 of 2011. On behalf of the State, Sh. Kamal Akhtar, Ld. Addl. PP, has submitted that the deposition of the prosecutrix reveals that not only did the accused forcibly establish sexual relationship with the prosecutrix on the promise of marriage, but that he also continued sexual relationship with the prosecutrix even after getting married to somebody else in February 2014 and thereby deceived the prosecutrix. According to the Ld. Addl. PP for the state, the fact that the accused got married in February 2014 and did not disclose this fact to the prosecutrix clearly reveals that his intentions were always malafide and he wanted to only use the prosecutrix to satisfy his lust and this proves the commission of the offence punishable under section 376 of IPC, by him.
12. It is further contended by the Ld. Addl. PP for the state that the deposition of the prosecutrix also proves that the accused used to continuously harass and threaten her that in case she refused to continue her relationship with him, he would defame her in society. Ld. PP for the State has submitted that this deposition of the prosecutrix is fully corroborated by the DVD1 proved on record by the prosecution. He has pointed out that the memory card of the mobile used by the accused , during investigation had been sent to a Forensic Expert, Sh. Kailash Kumar and the said Forensic Expert had retrieved the images from the memory card belonging to the accused and had copied the same in DVD1 and that Page 6 of 20 during trial the accused had categorically admitted the report of the Forensic Expert. It is his contention that in view of the said admission, the images in the DVD1, have to be read in evidence and if the same is done, it is clear that the accused had in his possession, nude/semi nude photographs of the prosecutix which he had been using to blackmail and threaten her and that this conclusively proves the commission of offences punishable under section 354D and 506 of IPC by the accused. It has also been pointed out by the Ld. PP for the State that the prosecutrix has also stated in her deposition that she had twice become pregnant and that it was the accused who got her pregnancy terminated by giving her some pills. This statement of the prosecutrix is according to the Ld. Addl. PP for the State, is sufficient to hold the accused guilty for the offence punishable under section 313 of IPC.
13. It has further been contended by the Ld. Addl. PP for the state that this court must bear in mind that the accused is a police official and therefore was in a position of power to threaten and influence the prosecutrix. It has also been contended by the Ld. Addl. PP for the state that the accused had blatantly lied in his statement under section 313 Cr.PC that he never had sexual relations with the prosecutrix though no such thing was suggested to the prosecutrix during her cross examination and the defence that was put forward during the cross examination of prosecutrix was that the accused and the prosecutrix had consensual physical relations.
Page 7 of 20According to the Ld. Addl. PP For the State the fact that the accused has chosen to blatantly speak false facts under section 313 Cr.PC, proves that it is the prosecutrix who has spoken the truth before the court and the contention therefore is that the sole testimony of the prosecutrix should be deemed sufficient by this court to hold the accused guilty of all the offences he has been charged with.
14. On the other hand, in rebuttal, the Ld. Defence counsel has submitted that the admissions made by the prosecutrix in her cross examination clearly prove that she had willingly entered into a physical relationship with the accused, knowing very well that he had never promised to marry her. He has pointed out that the prosecutrix had categorically admitted in her cross examination that the accused had never promised that he intends to marry her and that it is she who was in love with the accused and had presumed that he would marry her.
15. It has also been submitted by the Ld. Defence counsel that the admission of the prosecutrix in the cross examination that it is she who had got the hotel room booked at Shivam Palace, Karol Bagh, on 26.04.2015 makes it apparently clear that it was she who was wanting to have physical relationship with the accused despite being aware that he was married. It is thus his contention that the offence under section 376(2)(n) IPC is not at all made out against the accused.
Page 8 of 2016. As regards the reliance of Ld. Addl. PP for the state on DVD1 to argue that the accused is guilty of the offence punishable under section 354D and 506 of IPC, Ld. Defence counsel has pointed out that the accused has clearly explained to this court during final arguments and in his written submissions filed under section 313 (5) Cr.PC that the photographs in DVD1 were infact sent to him by the prosecutrix via whatsappp which further go on to show that the prosecutrix and the accused had a consensual physical relationship. As regards the allegation of the prosecutrix that she was being threatened by the accused, the submission is that though in the court, the prosecutrix has deposed that the accused was threatening that he will tell about their affair to the brother of the prosecutrix, Ex.PW1/F which is a complaint dated 09.05.2015, given by the complainant to PS Vasant Kunj, one day after registration of the FIR, reveals that in the same, the prosecutix has deposed that the accused was blackmailing her that the prosecutix should send her nude photographs to the accused or else he will make an obscene video that he has of the prosecutrix, public. The contention therefore is that the prosecutrix has been changing her versions according to her convenience and she is therefore not a credible witness at all. It is also the contention that not a word has been spoken by the prosecutrix about this alleged videoclip, in her deposition in court and further that the memory card of the mobile of the accused has not revealed any such obscene video allegedly taken by the accused. It is thus the Page 9 of 20 contention that the accused cannot be convicted even for the offence punishable under section 354D and 506 of IPC.
17. As regards, the offence punishable under section 313 IPC for which, the accused has also been charged, Ld. Defence counsel has submitted that the statement of the prosecutrix that she consumed the medicines which were given to her by the accused without knowing that the same would lead to the termination of the pregnancy cannot be believed at all for it simply belies logic. It has been pointed out that the prosecutrix has admitted in her cross examination that she was not suffering from any illness and the contention therefore is that when there is no reason given by her as to why would she then consume any medicine without knowing its nature, her deposition becomes completely illogical. Ld. Defence counsel has also submitted that on the mere statement of the prosecutrix that she was pregnant and that her pregnancy was terminated twice by the accused, when there is no medical evidence that she was ever pregnant, cannot be made the basis for holding the accused guilty of the offence punishable under section 313 Cr.PC moreso when the said deposition is hardly trustworthy.
18. Ld. Defence counsel has also vehemently contended that merely because accused is a police official, the court should not have a bias in mind that he was in a position to threaten/harass or blackmail the Page 10 of 20 prosecutrix in any manner. He has also contended that the mere fact that the accused has chosen to take a stand in his statement under section 313 Cr.PC that he did not have any sexual relationship with the prosecutrix, is not sufficient for this court to accept the testimony of the prosecutrix as absolute truth. It is his contention that the deposition of the prosecutrix is absolutely not credit worthy to hold the accused guilty of any offence, more so when it is not even corroborated by any evidence on record.
19. In support of his contentions, Ld. Defence counsel has relied upon the following judgements:
• Judgment pronounced by the Hon'ble Supreme Court of India in Appeal (crl.) 1086 of 2007 (arising out of SLP (Crl.) No. 3072 of 2006) in the case titled as Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar.
• Judgment pronounced by the Hon'ble Supreme Court of India in Appeal (crl.) 336 of 1996 in the case titled as Uday Vs. State of Karnataka.
• Judgment pronounced by the Hon'ble Madras High Court in CRL.A. (MD) No. 321 of 2011 in the case titled as Karthick Theodre Vs. State.
20. The aforementioned rival contentions made by the Ld. Addl. PP for the State and the Ld. Defence counsel cull out the following points for Page 11 of 20 determination:
(i) Whether or not the accused obtained the consent of the prosecutrix for establishing sexual relationship with her on the assurance that he would be marrying her and hence whether or not the accused can be held guilty of the offence punishable under section 376 IPC.
(ii) Whether or not the DVD1 proved on record by the prosecution corroborates the deposition of the prosecutrix that she was being blackmailed and threatened by the accused and hence whether or not the accused can be held guilty of the offence punishable under section 354D and 506 IPC.
(iii) Whether or not the statement of the prosecutrix itself is sufficient to hold the accused guilty of the offence punishable under section 313 IPC in the absence of any medical evidence that the prosecutrix was ever pregnant or that her pregnancy was terminated.
21. Before proceeding further to spell out the findings of this court on the aforementioned issues, it will be relevant herein to note that the prosecutrix in her deposition has more or less reiterated the allegations that she made to the investigating agency at the first instance and the same have already been narrated in para 2 of this judgment. The only material difference is that though in the original complaint, she had stated that the accused had taken her to Shivam Palace on two occasions i.e. 28.02.2015 Page 12 of 20 and 26.04.2015, in her deposition before the court, she has only narrated about the incident that took place on 26.04.2015 and has not made any allegations with respect to 28.02.2015. (the deposition is not being spelt out in detail here only to avoid repetition) FINDINGS ON THE 1ST POINT FOR DETERMINATION CHARGES OF RAPE UNDER SECTION 376(2)(n) OF IPC
a) After going through the entire evidence on record, this court is of the considered opinion that it cannot be held that the accused had, in the month of March/ May 2013, forcibly made physical relations with the prosecutrix and that thereafter on many other occasions the prosecutrix had consented to have sexual relationship with the accused only because he had given an assurance or promised her that he would be marrying her. Though in her examination in chief, the prosecutrix has deposed that in the month of March/May 2013, the accused had taken her to the premises of his friend one Ashwani and at the said premises had forcibly made physical relations with her, she in her cross examination on being asked what forcefully means has deposed that the accused was adamant to make physical relations with her and since she was in love with the accused, she did not resist. She has also admitted in her cross examination, that the accused, at no point of time, ever told her that he intends to marry her. According to Page 13 of 20 her statements in the cross examination, since she was in love with the accused, she presumed that the accused would marry her. She further admits that in case her family had come to know that she wanted to marry the accused, her family would have killed her that is to say in other words, she herself was aware that she may not be able to marry the accused. In the considered opinion of this court, in view of such statements made by the prosecutrix (who is a graduate and working woman) herself in her cross examination, the accused cannot be held guilty of having raped the prosecutrix in March - May 2013 at the premises of his friend or thereafter having obtained the consent of the prosecutrix for sexual relationship on the false promise of marriage.
b) Similarly, her deposition that on 26.04.2015, the accused had forcibly taken her to Shivam Palace, Karol Bagh, by threatening her and had again made physical relations with her forcibly does not appear to be true because she admits in her cross examination that it is she who had got the hotel room booked at Shivam Palace on 26.04.2015 in her name. Though she has volunteered to state that the accused had told her that he wants to meet her and that is the reason, she had booked the hotel room, it has been rightly contended by the Ld. Counsel for the accused that firstly the said admission shows that she was not forcibly taken to the room as alleged and secondly as per her own statement, the accused had only desired to meet her and for the said purpose, there was no requirement for her to book a hotel room and the fact that she however, did book a hotel room points out that she herself Page 14 of 20 was interested in having a sexual act with the accused on the said date. The said fact further also shows that despite being aware by the said time that the accused was married, the prosecutrix was still desirous of maintaining a sexual relationship with the accused and therefore it cannot be held that the accused had concealed the fact of his marriage from the prosecutrix and had thereby obtained her consent for sexual relationship fraudulently. In such view of facts in the considered opinion of this court, the accused cannot be held guilty, at all, of the charges of rape framed against him under section 376 (2)(n) of IPC.
ON THE 2nd POINT FOR DETERMINATION CHARGES UNDER SECTION 354D AND SECTION 506 IPC
a) With respect to the said charges, the prosecutrix in her examination in chief has deposed that after she became aware in August 2014, that the accused was already married, she told him that she does not want to meet him or continue her relationship with him but that the accused started mentally harassing her and threatening her that in case, she does not agree to have relations with him, he would defame her by telling her brother about their affair. She has also deposed that in the month of March/April 2015, after her engagement was fixed with a boy, the accused threatened that he would not let her get married and again threatened her that he would defame her in the society and that she would not be able to do anything against him. She has further stated that on 26.04.2015, he forcibly took her to Shivam Palace, Karol Bagh, and made physical relations with her Page 15 of 20 forcefully. She has further deposed that the accused told her that he would want to continue physical relations with her even after her marriage and according to the prosecutrix the accused was aware that the family of the prosecutrix, was an orthodox family and if they came to know about their relations, they would have forced her to leave her job and that the accused was aware of the said fact and took advantage of the same.
b) Now as regards the allegation of the prosecutrix that on 26.4.2015, the accused had threatened her and had forcibly taken her to Shivam Palace, Karol Bagh and had raped her, this court has already observed that the said allegations cannot be believed. Further as regards the contention of Ld. Addl. PP for the State that the DVD1 containing the images downloaded from the mobile phone of the accused proves that the accused had in his possession, nude/semi nude photographs of the prosecutix which he was using to blackmail and threaten her, and the same corroborates the aforementioned testimony of the prosecutrix that she was being threatened by the accused, it is to be firstly noted that the prosecutrix has not uttered a word in her deposition before the court that the accused was blackmailing her in any such manner . Secondly, it has to be borne in mind that the prosecutrix even in her initial complaint dated 08.05.2015 had not made any such allegations that the accused had in his possession her nude photographs which he had been using to blackmail her and infact it was the accused himself who had brought it to the notice of the IO that he had in his mobile nude/semi nude photographs of the prosecutrix, which she had Page 16 of 20 sent him on her own via whatsapp and he was relying upon the same to contend that it was the prosecutrix who had been after him and had a consensual physical relationship with him despite being aware that he was married. The record reveals that after the accused was arrested, he had informed the aforementioned facts to the IO and the prosecutrix on being told of the said assertion of the accused had then written Ex.PW1/F i.e. her second complaint dated 09.05.2015 to the concerned SHO wherein she admitted that she had sent her nude/ semi nude photographs to the accused. She however took a stand in the said complaint that she had been forced to send these photographs to the accused because he had told her that he was having an obscene video of her and that in case she does not send her nude photographs to him, he would make the said video viral. As per record, keeping in view these allegations being made by the prosecutrix and the accused, the IO had called upon both of them to produce their mobile phones along with their memory cards and though the accused had produced his mobile phone and memory card , the prosecutrix had only handed over a mobile phone instrument to the IO and had not handed over any SIM Card/ Memory card to her. The record also reveals that thereafter the memory card of the phone of the accused was sent to a Forensic expert, Sh. Kailash Kumar, Jr. Forensic/ Assistant Chemical examiner, RFSL, Chanakyapuri, and the said expert after examining the memory card, retrieved the images therefrom and copied the same in DVD1 which was then placed on judicial record and was found to contain nude/semi nude Page 17 of 20 photographs and is now being relied upon by the Ld. Addl. PP for the State. What the aforementioned facts reveal is that the prosecutrix had not cooperated during investigation and had not wanted her mobile phone data to be examined and it was the accused who had brought the fact of nude/semi nude photographs of the prosecutrix in his mobile phone to the notice of the investigating agency. Clearly in view of such facts, it cannot be believed that the accused had been blackmailing the prosecutrix on the basis of such photographs, as contended by the Ld. Addl. PP for the State. Further, it also appears that the defence is rightly contending that the prosecutrix should not also be believed because she has been changing her versions as per her convenience - as narrated herein above, though in Ex.PW1/F, the complaint given by her to the investigating agency, she had alleged that the accused was blackmailing her on the basis of some obscene video that he had taken of her, in her deposition before the court, she has alleged that it was the threat of the accused that he would disclose about their affair to her brother and family that forced her to continue her sexual relationship with the accused. The said inconsistency in the versions being given by the prosecutrix, in the considered opinion of this court, does raise a grave doubt about her veracity and her credibility moreso, when the memory card of the mobile phone of the accused admittedly on examination by the forensic expert was not found containing any obscene video and the said fact infact gives rise to an inference that the prosecutrix had made false assertions even in her complaint Ex.PW1/F. Page 18 of 20
(c) No doubt, the testimony of a prosecutrix alone can held to be sufficient for holding an accused guilty of the offences that a prosecutrix has alleged against him, but, such a testimony as per the well settled judicial dicta relied upon by the Ld. Defence counsel, has to be of sterling quality and in a case like the present one, where the statement of the prosecutrix is not found to be consistent credible and sufficiently trustworthy, the same, in the considered opinion of this court cannot be made the basis to hold the accused guilty of the offences punishable under section 354D and 506 IPC. As such, this court hereby holds that the accused cannot be held guilty of the said offences also.
ON THE 3rd POINT FOR DETERMINATION CHARGES UNDER SECTION 313 of IPC.
(a) With respect to the allegations that the prosecutrix had twice become pregnant and on both occasions, her pregnancy was got forcibly terminated by the accused, yet again in the absence of any medical evidence to support this allegation, the court has only the testimony of the prosecutrix to determine the guilt of the accused and as discussed herein above, the said testimony does not inspire much confidence in this court. It is also being rightly contended by the counsel for the accused that the statement of the prosecutrix in her cross examination that she simply ate the pills given to her by the accused without asking him what the same were, does belie logic. In view thereof, the finding on this issue is also to be in favour of the accused and it is to be held that the prosecution has not brought sufficient Page 19 of 20 evidence on record beyond all reasonable doubts to prove that the accused is guilty of the offence punishable under section 313 IPC.
22. In view of the discussion herein above, this court is of the considered opinion that the accused cannot be held guilty of any of the offences for which he has been charged as the testimony of the prosecutrix has not been found to be sufficiently trustworthy and credible. As such, the accused hereby stands acquitted of all the offences namely under section 376(2)(n), 506, 354D and 313 of IPC.
Announced in Open Court On 31st of August, 2017 (Anu Grover Baliga) Court No.7, Lock UP Building ASJ / FTC / PHC / NDD New Delhi /31.08.2017 Page 20 of 20