Delhi District Court
State vs 1. Mr. Ajay Dutta on 24 March, 2015
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 11/2015
Unique Case ID Number : 02401R0630202014.
State versus 1. Mr. Ajay Dutta
Son of Mr.Tajender Dutta.
R/o G-1/14/548, Paschim Vihar, Delhi.
...........(Proclaimed Offender)
2.Ms. Parveen Dutta
Wife of Mr. Ajay Dutta.
R/o G-1/14/548, Paschim Vihar, Delhi.
...........(Facing Trial).
First Information Report Number : 557/13
Police Station Tilak Nagar,
Under sections 376/328 of the Indian Penal Code.
Date of filing of the charge sheet before : 04.12.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 28.01.2015.
Court of ASJ (SFTC)-01, West, Delhi
Arguments concluded on : 24.03.2015.
Date of judgment : 24.03.2015.
Appearances: Ms. Promila Singh, Additional Public Prosecutor
for the State.
Accused Mr.Ajay Dutta is Proclaimed Offender.
Accused Ms.Parveen Dutta is on bail.
Mr. Naveen Kumar Bhardwaj, counsel for accused Parveen
Dutta.
Ms.Shubra Mendiratta, counsel for Delhi Commission for
Women.
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Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar,
Under sections 376/328 of the Indian Penal Code.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Ms.Parveen Dutta, the accused, has been charge sheeted by Police Station Uttam Nagar, Delhi for the offences under sections 417 and 419 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that during the period of 2011 till October 2013 at 2/9 Tilak Nagar, New Delhi, accused Ms.Parveen Dutta personated herself as a sister of co-accused Mr.Ajay Dutta (whereas she was wife of co-accused Ajay Dutta, who is Proclaimed Offender) with intention to extort money from the complainant and also she along with co-accused Mr.Ajay Dutta (who is Proclaimed Offender) cheated the prosecutrix/complainant of Rs.30 lacs.
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 04.12.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 28.01.2015.
Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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3. After hearing arguments, charge for offence under sections 417 and 419 of the IPC was framed against the accused Ms. Parveen Dutta vide order dated 25.02.2015. The accused pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined as many as 01 witness. The prosecutrix as PW1.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. PW1, the prosecutrix, has deposed that in the year 2009, she went to Raghvir Nagar market for purchase some articles on the event of Dhan Teras. The accused namely Ajay Dutta was also making some purchase of the articles (accused Ajay Dutta is Proclaimed Offender). She stated that accused Ajay Dutta is not present in the court today. She stated that accused Ajay Dutta asked her to help him to choose a dinner set. Initially she refused to help him but on the insistance of the accused Ajay Gupta, she choose a dinner set for him. The accused had shown his gratefulness for the help and he had given her his mobile number and also asked her to contact him in case of Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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any need. At that time, she was running a beauty parlour. She gave her mobile number to accused Ajay Dutta and told him that she was running a parlour. Accused Ajay Dutta asked her if she can do make up of his cousin as the cousin was going to be married soon. The accused started coming to her parlour on one or other pretext. She asked the accused Ajay Dutta whether he was married or unmarried. The accused Ajay Dutta told her that he was unmarried and one sister lives with him. The accused kept on contacting her. One day accused Ajay Dutta came to her parlour and asked her to for a coffee. The accused Ajay Dutta took her in South Delhi. They both had coffee. There was a garden in front of Coffee shop. The accused Ajay Dutta took her to the garden and he shared his personal details with her. The accused also stated about the problems being faced by him in the life and he also shown interest in her for a life parter. The accused also asked her to start a joint business. Initially the accused started working with her in her parlour. Accused Ajay Dutta used to sit at the cash counter while she used to attend to the clients. Since she was not much educated, therefore, accused Ajay Dutta used to manage her whole business and he had never shown her the accounts and used to carry the case without telling me about the income of the day. After a period of six seven months, this business was closed down as there were huge loss. Complainant may also mention that during the abovesaid period she also met accused Parveen Dutta as she was introduced to her by the accused Ajay Dutta as his sister. After the closing down of the parlour, the accused Ajay Dutta asked her to invest money in the business of footwear and hand bags as he had experience in this business and he also told her that there was good margin in the business of footwear and hand bags. She had no money with her Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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but there was a property in the name of her mother. That property was sold off and that money was invested in the business of footwear and hand bags as per the wishes of accused Ajay Dutta at Tilak Nagar. She stated that initially for a period of two years the accused Ajay Dutta had shown her profit in the business of footwear and hand bags but slowly this business was also started showing loss. This business was also closed down some one year back probably in the year 2013/2014. She asked the accused Ajay Dutta to marry her since they started business at parlour but accused Ajay Dutta always refused on the pretext that since he was not earning. Accused Ajay Dutta mis represented to her clients as my husband. She further deposed that accused Ajay Dutta made physical relation in the year 2009 as since then onwards he kept always making physical relations in the state of intoxication. The accused used to drink in the parlour and shop at Tilak Nagar. She got pregnant thrice due to the physical relation with the accused Ajay Dutta. The accused forcibly induced termination of pregnancy with pills on two occasions and on third occasion accused Ajay Dutta took her to a doctor at Janak Puri where her pregnancy was terminated. She stated that she may be granted time to verify from her documents whether or not she has the documents regarding the termination of my third pregnancy (the Additional Public Prosecutor has submitted that the documents are not required at this stage as accused Ajay Dutta is Proclaimed Offender and the documents are relevant regarding the allegations against him). She was continuously requesting accused Ajay Dutta to marry her but he refused every time saying that the business was to be settled. In November/December, 2013, accused Ajay Dutta told her to take loan of Rs.30 lakhs from ICICI bank for business. However as her mother told Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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her not to take loan since she had already lost Rs. 30 Lakhs in business to accused Ajay Dutta, she did not apply for loan. Her mother had earlier sold her property for Rs. 26 lakhs and had given that money for business to her which she had given to accused Ajay Dutta alongwith her jewellary worth about Rs. 3 lakhs. That money had been lost and her mother did not want her to take any loan for the business with accused Ajay Dutta. She had again requested Ajay Dutta to marry her but he refused and he started torturing her by using bad language. Accused also told her he would not marry her and she should so inform her mother. Accused also told her to start her parlour again and he would work else where. During this period, accused Ajay Dutta continuously had physical relations with her after making her drink liquor. He had also assured marriage to her due to which she had physical relations with him. Accused Ajay Dutta used to his residence at GS-14, LIG Society, near White House, Radison Hotel, Paschim Vihar, Delhi and had introduced her to his friends and family including his uncles i.e Chachas and Mamas. She did not remember the exact date and month but it was in the year 2009, the accused Ajay Dutta had taken her to a temple in Tilak Nagar where he had put vermillion (sindoor) in the parting of her hair and Manglesutra. Accused Ajay Dutta had told her soon after meeting her that his family comprised only of his sister namely Praveen and his parents had since expired. She had met accused Praveen Dutta for the first time in the year 2009 when accused Ajay Dutta had brought her to her parlour and introduced her as his sister. She identified the accused Praveen Dutta. She had gone to Police Station Tilak Nagar and given her complaint (Ex.PW1/A). She was taken by the police to Deen Dayal Upadhyay hospital where she was medically examined. She was produced Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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before the Court of learned Metropolitan Magistrate, Tis Hazari Courts and she recorded her statements under section 164 Cr.P.C. (Ex.PW1/B). During investigation she was told that accused Ajay Dutta was absconding. She knew that he had come to the Police Station and the police had let him go. She had appeared in the Court during the hearing of the anticipatory bail application of accused Praveen Dutta. Prosecutrix has deposed that she did not have any grievance against accused Praveen Dutta as she used to be busy in the call center where she was working or with her friends. She had come with her and accused Ajay Dutta a few times but had not said anything. She did not want any legal action against accused Praveen Dutta as she has not committed any offence against her nor done anything wrong against her. She further deposed that accused Praveen Dutta could have told her about accused Ajay Dutta but she did not tell her anything. Accused Praveen Dutta has filed a divorce petition on the ground of cruelty against accused Ajay Dutta in which she has been made respondent number 2. However she has no concern with the said divorce petition. She has prayed that accused Ajay Dutta may be arrested and punished. She further deposed that she did not want to say anything else.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
8. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that she has read the portion X1 to X2. It is correct that she had gone to Vaishno Devi and Darbar Sahab with accused Ajay Dutta and Praveen Dutta and they had posed as brother and sister. She Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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stated that by "Sehyog" mentioned between X1 to X2, she means that accused Praveen Dutta used to go out of the house for her work leaving her and accused Ajay Dutta in the house where he used to have physical relations with prosecutrix. Accused Praveen Dutta was aware that she was doing business with accused Ajay Dutta. She had given the money to accused Ajay Dutta in the presence of accused Praveen Dutta. She used to said that accused Ajay Dutta and accused Parveen Dutta could do anything and she should be given money for running the house. On the specific query by the Additional Public Prosecutor as which of the version, in the complaint and statement under section164 Cr.P.C, is correct, the prosecutrix has deposed that the version in complaint against accused Ajay Dutta is correct. She denied the suggestion that she has been deliberately making contradictory statements in regard to accused Praveen Dutta as she has been won over by accused Parveen Dutta. She denied the suggestion that she is deliberately deposing falsely before the court. She denied the suggestion that accused Praveen Dutta has cheated her of Rs.30 lakhs alongwith accused Ajay Dutta. She denied the suggestion that between 2011 to October, 2013 at 2/9 Tilak Nagar, New Delhi, accused Praveen Dutta impersonated herself to be the sister of accused Ajay Dutta in order to extort money from her. She has denied the suggestion that she has settled the matter with accused Praveen Dutta and she is deposing against her and did not want any legal action against her.
9. She has also been cross examined on behalf of accused Parveen Dutta. She has deposed that she did not want any legal action against accused Praveen Dutta as she has not committed any offence against her nor done Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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anything wrong against her. She admitted to be correct that accused Praveen Dutta has not impersonated as the sister of accused Ajay Dutta in order to extort money from her nor cheated her of Rs.30 lakhs. She has pray that accused Praveen Dutta may be acquitted.
10. The prosecutrix, has not deposed an iota of evidence of her being cheated at all by accused Praveen Dutta. She has not deposed anything incriminating against the accused Parveen Dutta regarding cheating her by impersonating as the sister of accused Ajay Dutta.
11. In the circumstances, as PW1, the prosecutrix, who are the star witness has turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused Parveen Dutta, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix, the material witnesses, have not supported the prosecution case and is hostile.
12. Statement under section 313 of the Cr.P.C. of the accused Parveen Dutta is dispensed with as there is nothing incriminating against her when the prosecutrix, PW1 is hostile and nothing material has come forth in her cross examination by the prosecution.
Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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13. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
14. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that their deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
15. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
16. Consequently, no inference can be drawn that the accused Parveen Dutta is guilty of cheating the prosecutrix and extort money of Rs. 30 lacs from her during the period 2011 till October, 2013 at 2/9, Tilak Nagar, New Delhi, by impersonating herself as a sister of co-accused Ajay Dutta (who is Proclaimed Offender) with intention to extort money from the complainant and cheated her. There is no material on record to suggest that the prosecutrix was ever cheated by the accused Parveen Dutta. No case is made out against the accused Parveen Dutta as there is no incriminating evidence against him. Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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17. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused Ms. Parveen Dutta is innocent and have not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
18. Consequently, no inference can be drawn that the accused Ms. Parveen Dutta is guilty of the charged offence under sections 417 and 419 IPC. There is no material on record to show that during the period of 2011 till October 2013 at 2/9 Tilak Nagar, New Delhi, accused Parveen Dutta personat- ed herself as a sister of co-accused Ajay Dutta (whereas she was wife of co- accused Ajay Dutta,who is Proclaimed Offender) with intention to extort money from the complainant and also she along with co-accused (Ajay Gupta, who is Proclaimed Offender) cheated the prosecutrix/complainant of Rs.30 lacs .
19. From the above discussion, it is clear that there is no evidence of the prosecution against the accused Ms.Parveen Dutta and the prosecution has failed to establish cheating. The evidence of the prosecutrix, makes it highly improbable that such an incident ever took place.
20. Therefore, in view of above discussion, the conscience of this Court is Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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completely satisfied that the prosecution has failed to bring home the charge against the accused Ms. Parveen Dutta , for the offence under sections 417 and 419 of the IPC.
21. Consequently, accused Ms. Parveen Dutta, is hereby acquitted of the charge for the offence under sections 417 and 419 of the IPC.
22. Compliance of section 437-A Cr.P.C. is made in the order sheet.
23. Case property be destroyed after expiry of period of limitation of appeal.
24. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
25. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
26. The evidence of the prosecutrix today shall be considered as the evidence under section 299 Cr.P.C. qua accused Ajay Dutta who is a Proclaimed Offender.
27. The file be requisitioned from the Record Room and be taken up again as and when accused Mr.Ajay Dutta is apprehended.
Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 24th day of March, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 11 of 2015.
Unique Case ID Number : 02401R0630202014.
FIR No. 557/2013, Police Station Tilak Nagar, Under sections 376/328 of the Indian Penal Code.
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