Delhi District Court
State vs . Pankaj Mittal on 24 May, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 57471/16
State
Versus
Pankaj Mittal
S/o Sh. Ashok Mittal
R/o H. No. G153, Shakar Pur, J.J. Colony,
Delhi.
FIR No. : 65/10
Police Station : Mahendra Park
Under Sections : 376/313/384/312/201 IPC
Date of Committal to Sessions Court : 29.05.2010
Date on which Judgment reserved : 10.05.2019
Date on which Judgment announced : 24.05.2019
JUDGMENT
1. The police has forwarded Pankaj Mittal only to face rape and extortion trial. Dr. Nisha Jain was examined as PW7 and thereafter, she was roped in U/s 313/34 IPC. Against the order of charge, she filed a revision in the Hon'ble High Court in which she was let off.
2. FIR came into existence on the statement of prosecutrix to the effect that she used to reside in Jahangirpuri with her mother and was employed in VMart Company since 2008 where accused also used to work. He used to harass her and due to that reason, she left the job.
State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 1 of 25 When she did not attend the job, the accused met her mother at her house and expressed desire to marry her, but he was snubbed and threatened by her mother that if he again dared to meet her, he would be got arrested. But he did not lose heart and came to her house in midnight and called her by name in the mobile phone light. Her mother got up and when she opened the door, he had already run away on his bike. Her mother beat her that night without any fault. She was harassed so much by the accused that she attempted to commit suicide and was admitted by her mother in ESI Hospital. When he came to know that she was admitted in ESI Hospital, he got her discharged and took to the house of his friend Rinku, situated in IBlock, Jahangipuri where she was raped forcibly. Since then, it became routine for him to come to her house when her mother was away to office and establish physical relations due to which she became pregnant. The accused took her to Saroj Hospital where the doctor asked her to visit her private Nursing Home situated near M2K Pitampura. She visited that clinic and accused's mother asked her to undergo check up with the assurance that she would be got married with the accused. She was aborted there and thereafter, when her family members asked accused to marry her, he refused. His family members demanded Rs. 5 lacs in lieu of marriage. At one point of time, the accused rang her mother up for demanding Rs. 3 lacs saying that he had her (prosecutrix) clip. He harassed her physically as well mentally and used her whenever he desired and thereafter, fled away. Ultimately, he and his family members refused to marry her.
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3. Charge U/s 376/313/384 IPC was framed against accused Pankaj Mittal on 07.07.2010 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined 14 witnesses.
5. The prosecutrix deposed as PW1 that she was employed in VMart Company in 2008 where the accused was working before her joining. He told that he was in love with her but she did not have any feeling for him. He continuously harassed her to marry him and she had to complain to the Manager Giri Raj of the company and other employees namely Sukhdev, Rajender and Mahender Singh. She had to leave the company as the harassment continued. She next deposed that after leaving the company, the accused came to her house and told that if she did not want to have any physical relation, she should have atleast friendship. Thereafter, he started making her telephone call for doing long conversations. Through erstwhile employee Mahender Singh of VMart Company, he invited her to the house of his friend on the pretext of a birthday party. A former employee of VMart Company picked her up from Tri Nagar Metro Station and took to the venue where her another friend Nisha also came after sometime. She was offered cold drink by the boy by whom she was taken to the house and she lost consciousness after drinking the same and after gaining consciousness, she noticed accused there. On enquiry, he told that he had done everything with her and that she had no option than to live with him. She was dropped at bus stand State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 3 of 25 and she returned home. Thereafter, the accused started putting pressure upon her that she should marry with him as he had done everything with her. In one midnight, he came to her house and called her due to which she and her mother woke up. When her mother went outside to see as to who was calling, the accused ran away. Her mother felt annoyed to know that she was called by a boy and hence, beat her though she had told her mother that the accused used to harass her. On such information, her mother reported the matter to PS Shakar Pur where an acquaintance of accused assured that the accused would not trouble her any further. But the accused did not mend his way and kept on calling on phone saying that he had her some video clippings which he would make public if she did not meet him.
She next deposed that she had to meet the accused due to threats and during one meeting, he showed her clippings and threatened that if she did not marry him, he would show video clippings to her parents, neighbours and also telecast the same on cable network. At one point of time, he met her mother with the proposal of marriage, but the lady refused. She had also visited his house on one occasion when he introduced her to his parents and brother and told them that he wanted to marry her. They came downstairs after giving her Shagun and she was left alone with accused and he again established physical relation on the pretext that he had been engaged with her as Shagun had already been given to her. She felt disturbed as she was pregnant from him and hence, she consumed poison for which she was treated in ESI State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 4 of 25 Hospital. He got her discharged from there, raped her in the house of his friend Rinku under the threat of showing her MMS to everybody. Thereafter, she was taken to Saroj Hospital where Dr. Nisha Jain did ultrasound and blood test and pregnancy was terminated in a private clinic. Thereafter, the accused refused to marry her. His mother demanded Rs. 5 lacs and jewellery in lieu of marriage. She next deposed that the complaint Ex.PW3/C was bearing her signature on which FIR was registered. She had accompanied the IO to the house of the accused from where he was arrested on her pointing out, vide arrest memo and personal search memos Ex.PW11/A and Ex.PW11/B respectively. She had taken IO to the clinic of Dr. Nisha Jain and identified that place as the clinic where she was aborted.
PW9 Shashi Sharma is the mother of prosecutrix and she deposed that her daughter informed her that the accused used to harass her when she was working with VMart Company and used to visit her in her absence and due to physical relation with him, she became pregnant. She next deposed that her daughter further told her that the accused had taken her to Saroj Hospital and Nursing Home of Dr. Nisha Jain where she was aborted. After getting her daughter aborted, the accused and his mother came to her house and demanded Rs. 5 lacs in lieu of marriage. She next deposed that the accused had rung her up just before the Holi of 2010 that she should come to a hall in Raja Garden to take delivery of her daughter's clips. She went there but the accused had already left that place.
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6. PW7 Dr. Nisha Jain is running a surgical, maternity and child care clinic in the name of M/s Sunisha Panchwati Clinic in Sector7, Rohini and it was registered on 16.10.2002. She could not recollect if the accused and prosecutrix had visited her clinic on 30.09.2008, misrepresented themselves as husband and wife and got the prosecutrix aborted. Ld. Additional PP was given permission to cross examine the witness as she was resiling from the previous statement. In cross examination, she deposed that the accused and victim had come to her nursing home on 30.09.2008 and the girl had told her name as Isha saying that she was having pregnancy of few weeks which she wanted to abort. She had told her name wrongly as Sheetal Sharma. Signatures of the accused were taken on consent form Ex.PW7/A and he had written his name at pointB. The victim had got her name mentioned on the consent form Ex.PW7/A at pointC as Sheetal. She next deposed that in reply Ex.PW7/F to notice U/s 91 Cr.P.C. of the IO, she had stated that her clinic did not have record of the patient namely Isha. In Court question, she replied that as per the provisions of Section 3(2) of MTP Act, pregnancy may be terminated by registered medical practitioner where such medical practitioner, in case pregnancy is not more than 12 weeks and two medical practitioners, if the pregnancy is from 12 - 20 weeks is/are of the opinion in good faith that continuance of the pregnancy would involve a risk of grave injury to the physical or mental health of the woman. She next deposed that she conducted abortion because the accused and the girl had told her that it was an unwanted pregnancy. Due State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 6 of 25 to unwanted pregnancy, she formed an opinion that the girl would suffer such physical or mental abnormalities as to be seriously handicapped. In cross examination, she deposed that the girl had told her age as 23 years and from physical appearance also, she was looking major. The girl and her husband had told that they did not want the pregnancy and hence, wanted to have MTP. She next deposed that on oral enquiry, the girl told her that she had no problem for termination of the pregnancy.
7. PW5 Dr. S.S. Gupta from ESI Hospital, Rohini appeared in place of Dr. Prakash Vijay who had examined the prosecutrix on 11.12.2008 and prepared MLC Ex.PW5/A. The history sheet of the prosecutrix attached with MLC is Ex.PW5/B. He deposed that Dr. Prakash Vijay has left the service and his present whereabouts were not known. But he was conversant with his handwriting and signature.
PW12 ASI Shyam Singh was working as Emergency Officer in PS Jahangirpuri on 11.12.2008 when Duty Officer handed him over DD No. 38A for enquiry. He reached ESI Hospital, collected MLC of the prosecutrix and on enquiry, she told him that she had gone to her relative where she consumed cold drink when she was empty stomach and hence, started vomiting. She had further told him that she was taken to ESI Hospital by her mother. On his action taken report/ enquiry, DD No. 73B Ex.PW12/A was recorded.
8. PW4 Dr. Ekta Kale examined the prosecutrix in BJRM Hospital on 17.03.2010 and prepared MLC Ex.PW4/A, bearing her signature at pointA. On enquiry, the prosecutrix had told her that a State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 7 of 25 person had sexually assaulted her for 2½ years. Last intercourse was 18 days ago. Last menstrual period was on 14.03.2010. No injury mark was found on her body. Hymen was old ruptured. No injury mark was present on her private part.
PW6 Dr. Neeraj Chaudhary identified the signatures and handwriting of three doctors namely Dr. Danish, Dr. Vikas and Dr. Meet. He deposed that Dr. Danish, under the supervision of Dr. Meet, had examined the prosecutrix and prepared MLC Ex.PW4/A. Dr. Danish had examined the accused also on 18.03.2010 vide MLC Ex.PW6/A. After examination, he was referred to S.R. Surgery for potency test, where Dr. Vikas opined that there was nothing to suggest that the accused was not capable of performing sexual act. He claimed that he was conversant with the handwriting and signature of all three doctors as he had seen them writing and signing. He claimed that Dr. Danish and Dr. Vikas had left the service of the hospital and Dr. Meet was posted somewhere in Polio Programme.
9. PW2 Ct. Devender deposed that after handing over tehrir to Duty Officer on 16.03.2010, he alongwith IO, proceeded to H. No. F9Z, DDA Flats, Jahangirpuri where prosecutrix and her mother met them. On the pointing out of complainant, site plan of H. No. F9Z, Jahangirpuri was prepared. He next deposed that HC Chandervir came there at 10.30 pm and handed over original rukka and copy of FIR to the IO. The complainant was asked to accompany the IO to BJRM Hospital for medical examination, but she refused saying that she would undergo State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 8 of 25 medical examination some other day.
PW3 HC Suresh Chand deposed that he registered case FIR Ex.PW3/A on 16.03.2010 at 9 pm when SI Rajbala gave him a duly endorsed application of the prosecutrix. After registering the FIR, he made endorsement Ex.PW3/B on the rukka.
PW1 HC Chanderveer deposed that he took original rukka and copy of FIR to the house of prosecutrix on 16.03.2010 and handed over the same to the IO.
10. PW8 Mohd. Yusuf deposed that he never used mobile no. 9268580057 though the same has been issued in his name. He neither knows accused nor prosecutrix.
PW10 Sh. Durgesh Kumar, Executive, VMart Retail Ltd., placed on record the employment documents of the accused issued by VMart. He deposed that the accused had worked with his company from 01.03.2007 to 31.03.2008. In cross examination, he deposed that record of employment of prosecutrix was not available in his office.
11. PW13 Ct. Mohan Singh deposed that he alongwith ASI Rajbala reached to the house of prosecutrix on 17.03.2010 and took her to BJRM Hospital where she was medically examined. Thereafter, he alongwith IO went to the house of accused from where he was arrested vide arrest and personal search memos Ex.PW11/A and Ex.PW11/B respectively and was medically examined in BJRM Hospital.
PW14 Inspector Raj Bala is the IO. She deposed that she was posted in Sub Division Shalimar Bagh as SI on 16.03.2010 when she State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 9 of 25 was called by the Duty Officer of PS Mahendra Park. She went there and the complaint of the prosecutrix was assigned to her on which she made endorsement Ex.PW14/A, upon which Duty Officer registered the FIR. She next deposed that she alongwith Ct. Devender reached to the house of prosecutrix and met her and her mother. She asked the prosecutrix to accompany her to the hospital for medical examination, but she refused. She prepared rough site plan Ex.PW14/B at her instance. In the meantime, HC Chanderveer came to the spot and handed her over original rukka and copy of FIR. On 17.03.2010, she alongwith Ct. Mohan went to the house of prosecutrix in evening and took her to BJRM Hospital where her medical examination was done. Then she alongwith Ct. Mohan went to the house of the accused from where he was arrested vide arrest and personal search memos Ex.PW11/A and Ex.PW11/B respectively and his potency test was got conducted in BJRM Hospital. She next deposed that she collected employment record from VMart, Peeragarhi and abortion record of the prosecutrix from Sunisha Panchwati Nursing Home, Sector7, Rohini. She collected the CDR, CAF and Location Chart also of the mobile phones of the accused and prosecutrix. But the CAF of the mobile phone used by the accused was found belonging to one Mohd. Yunus. She had also collected the treatment record of the prosecutrix from ESI Hospital and also the proceedings done by the police when she attempted suicide.
12. Under Section 313 Cr.P.C., the accused took the defence of false implication.
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13. No witness has been examined by the accused in defence.
14. Ld. defence counsel argued that basis of the case is that the victim used to do job in VMart Company where accused was working. He harassed her to such an extent that she had to leave the job. He submitted that employment of the accused in that company has been proved by PW10 but he deposed that his company did not have employment documents of the prosecutrix. So the prosecutrix was not employed in VMart Company and hence, the very basis of the case is not established.
Next argument is that as per complaint, she had attempted suicide due to harassment caused by the accused. In cross examination, she deposed that she attempted suicide as she was feeling disturbed due to pregnancy by the accused. The third version of attempted suicide is in DD no. 38A and 73B to the effect that she had consumed cold drink when she was empty stomach due to which she had started vomiting. He argued that the prosecutrix had deferred in telling reason of attempting suicide.
The third argument is that as per complaint on which FIR was registered, the first incident of rape took place in the house of accused's friend Rinku situated in IBlock, Jahangipuri. She was admitted in ESI Hospital from where the accused got her discharged and raped in Rinku's house. He submitted that the prosecution has failed to prove that incident of rape. But as per her evidence, the first incident of rape had taken place in the house of accused's another friend where she State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 11 of 25 was invited on the pretext of a birthday party. At that time, her friend Nisha was also present.
The fourth argument of ld. defence counsel is that as per prosecutrix, she was aborted in a private nursing home by the accused on the promise that he would marry her. Simultaneously, she is trying to show that she was not aware that she had been aborted in private nursing home owned by PW7. He submitted that it has been proved by PW7 Dr. Nisha Jain that she, after the consent of the prosecutrix, had aborted the child because the prosecutrix alongwith accused had represented themselves before her as husband and wife and gave consent for MTP as the pregnancy was unwanted.
He next argued that for readiness of accused for marriage with victim, two versions have been given by the prosecutrix. At one place, she deposed that the accused had promised her marriage while she was working in VMart Company. He had visited her mother also to marry her but her mother refused. The second version is that the accused and his mother demanded Rs. 5 lacs for marriage. He submitted that both versions cannot coexist.
Next argument that it has been deposed by the prosecutrix time and again that she was raped by the accused on the threat that he had her clipping and MMS, which he would show to her family members and telecast on cable network also. The clippings have not been placed on record.
The next argument is that before coming into contact with the State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 12 of 25 accused, the prosecutrix had already married with one Bunty @ Chikna and that marriage was still subsisting. So even if the accused had promised to marry, her consent for intercourse was not due to that promise because the prosecutrix was already aware that due to subsistence of first marriage, she herself was incapable to marry the accused.
Last argument is that victim had got lodged two rape FIRs against two set of persons. She had also lodged a dowry FIR against her latter husband Sonu Khanna and that fact has come in case titled as State Vs. Rajiv @ Bunty etc., bearing FIR No. 779/05, PS Jahangirpuri. It has also come in that case that her husband had lodged a case against the victim for marrying with another boy while her marriage with him was still in existence. He next argued that the marriage photographs of Chikna and prosecutrix Ex.PW9/DA and Ex.PW9/DB were shown to the victim in cross examination but she did not identify even her own husband, whereas her mother had identified him in those photographs.
15. On the other hand, Ld. Additional PP argued that the non proof of employment of the victim in VMart, is not fatal to the prosecution case because it is an immaterial fact. He admitted that three versions are on the record for attempted suicide by the prosecutrix. He concurred with ld. defence counsel that first incident of rape stated in complaint and evidence are different ones. But on abortion, he argued that PW7 had aborted the girl not in good faith and without her consent and that is why she was summoned as accused no. 2. He submitted that State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 13 of 25 the investigation is tainted one and that is why police did not collect the clippings and MMS on the strength of which prosecutrix was raped. He next argued that accused Rajiv @ Bunty @ Chikna in FIR no. 779/05, PS Jahangirpuri had forced the complainant to undergo ceremonies of marriage. She was not aware that she was going to marry him. So, it cannot be said that before coming into contact with the accused, she was already married to Rajiv @ Bunty @ Chikna. He admitted that the prosecutrix had lodged two rape FIRs against two separate persons. He admitted that her second husband Sonu Khanna is also facing dowry harassment charges on the FIR lodged by her. Inturn, Sonu Khanna also lodged FIR against prosecutrix, her mother and brother.
16. The complaint Ex.PW3/C begins with the contention that the prosecutrix used to work in VMart Company where the accused was also working and he used to harassed her due to which she left the job. In evidence also, she deposed that she had left VMart due to harassment caused by the accused. In order to prove that accused and prosecutrix were both employed in that company, the prosecution examined Executive Durgesh Kumar who placed on record the employment papers of accused Ex.PW10/B as per which he had worked there from 01.03.2007 to 31.03.2008. He was asked in cross examination whether his company had any record of employment of prosecutrix and his answer is in negative. Had she been employed with VMart, the company would have definitely been in possession of her some record. Due to non production of employment record and non examination of any other State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 14 of 25 witness on her employment, the prosecution has failed to prove that the prosecutrix was ever employed with VMart Company. As per Ex.PW10/B, the accused had worked with that company only till 31.03.2008. As per cross examination of prosecutrix, she had left that company in July/ August 2008. Even if it is presumed that the prosecutrix was working with VMart, it was accused who had left the company first on 31.03.2008 and the prosecutrix left it in July/August 2008. So, it cannot be said that she had to leave the job due to harassment caused by the accused.
The prosecutrix admitted in cross examination that she did not lodge any complaint against the accused when he used to harass her while she was working with VMart. She volunteered that she had she had made complaint to the officials of the company. In order to prove that contention, the prosecution neither placed on record any complaint nor examined any official of that company.
17. As per complaint Ex.PW3/C, the accused kept on harassing her despite leaving the job due to which she had attempted suicide. But in deposition, she stated that she was feeling disturbed as she became pregnant from the accused and due to that reason, she had attempted suicide. When she was admitted in ESI Hospital on 11.12.2008, DD No. 38A was registered in PS Jahangirpuri on the same day at 5.11 pm to the effect that Geeta W/o S.L. Sharma, R/o F9Z, DDA Flats, Jahangirpuri had been admitted in ESI Hospital, Sector17, Rohini vide MLC No. 126/08 as she had consumed poison. The DD was marked to ASI Shyam State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 15 of 25 Singh for enquiry, who reached the hospital and on enquiry, the prosecutrix who told him that on that day i.e. 11.12.2008, she had consumed cold drink empty abdomen due to which she had started vomiting, her mother admitted her in ESI Hospital and that nobody should be blamed for that. It is pertinent to mention that name of the patient was wrongly mentioned as Geeta in DD No. 38A. On enquiry, ASI Shyam Singh came to know that the lady admitted in ESI Hospital was actually Isha who was taken there by her mother and after making enquiry, he filed action taken report on which DD No. 73B was registered on the same day. The DD No. 73B is not justifying the allegation of the prosecutrix that she had attempted suicide due to harassment caused by the accused or due to pregnancy by him.
18. As per complaint Ex.PW3/C, the prosecutrix was raped first time by the accused by taking her in his friend Rinku's house in Jahangirpuri. When the accused came to know that she had been admitted in ESI Hospital, he got her discharged from the hospital, took her to the house of his friend Rinku situated in IBlock, Jahangipuri and committed rape upon her. In examination in chief, she deposed that she was raped there under threat of showing her MMS to everybody. As per complaint, the said incident was the first incident when she had done sexual intercourse with the accused. It means that before that day, there was no sexual intercourse between them. If there was no physical relation before that date, how can there be any clipping or MMS in existence. Non existence of any clipping or MMS makes the first incident of rape in the State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 16 of 25 house of Rinku false. She admitted in cross examination that she did not tell any ESI Hospital staff that the accused was putting pressure upon her and taking her to his house without her consent. She volunteered that the accused had shown her MMS clipping due to which she got frightened. But existence of such clipping has already been ruled out.
As per the examination in chief of the prosecutrix, the accused had raped her first time in the house of a common friend by inviting her through coemployee on a birthday party. She deposed that she was invited there through erstwhile employee Mahender Bhaiya of VMart Company. She went to Tri Nagar Metro Station, from where she was picked up by another previous employee of VMart company and was taken to his own residence. After some time, her friend Nisha also came there and thereafter, she was offered cold drink by that person who had picked her up from Tri Nagar Metro Station. She next deposed that she did not know what happened thereafter as she lost consciousness and when she regained senses, she found the accused there who told that he had done sexual intercourse with her. It is quite interesting that the victim herself did not come to know that her privacy had been violated. Rather, it was the accused who told her that he had done sexual intercourse with her. In order to prove her presence in that house, the prosecution neither examined any of the former employee of VMart company through whom she was invited and who had taken her there. At that time, a lady namely Nisha was also present there, but she has also not been examined. It is not on the file to whom the house belonged. It is State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 17 of 25 not on the file as to whose birthday was on that day. So, that incident of rape has also remained short of proof.
19. On the issue of abortion, PW7 Dr. Nisha Jain deposed that the accused and prosecutrix came to her nursing home on 30.09.2008 and they told that the victim was pregnant of some weeks. It was the victim who asked her to abort the child and hence, she made entry in OPD register. She further deposed that the girl herself had told her name as Sheetal Sharma and disclosed that accused was her husband. The girl had got her name mentioned on the consent form as Sheetal. In response to Court Question, PW7 replied that the parties had told her that it was an unwanted pregnancy and that is why they wanted MTP. In further answer, she deposed that unwanted pregnancy causes mental agony if continued. She next deposed that the girl had told her age as 23 years and from physical appearance also, she was looking major. The girl and her husband/ accused had stated that they did not want the pregnancy and they wanted MTP. On oral enquiries from the girl, she stated that she had no problem with the termination of the pregnancy.
But the prosecutrix had deposed that she had undergone abortion because the accused had promised her marriage. The second impression she is trying to create is that same was carried out without her consent. But her second point has been cut to size by the evidence of PW7.
It is pertinent to mention that on the first day of her visit to Saroj Hospital, only tests, etc. were conducted. After tests, she was asked State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 18 of 25 by PW7 to come to her own personal clinic which she was running in the same vicinity. The accused and victim went there next day where MTP was done. She admitted in cross examination that after return from Saroj Hospital, she had not informed her mother that she had gone to hospital for abortion. She next admitted that on both days, she did not speak to any of the doctor either at Saroj Hospital or in the clinic of PW7. Had she been promised marriage, she would have given some indication either to her mother or to somebody in the hospital, which she did not give. So, her contention that abortion was done on the promise of marriage, is not believable.
20. Her claim regarding readiness of the accused for marrying her, are diverse. In examination in chief, she deposed that the accused had proposed her marriage when she was working in VMart. On the next page, she deposed that after raping her in friend's home after birthday function, he rang her up to tell that she will have to marry him as he had done everybody with her. In complaint Ex.PW3/C, it is mentioned that the accused had met her mother as he wanted to marry her (prosecutrix), but it was her mother who refused. All these assertions show that the accused was more than ready to marry the prosecutrix. But the prosecutrix took Uturn at page no. 6 of her evidence that mother of the accused demanded Rs. 5 lacs from her mother for his marriage. It is mentioned in complaint Ex.PW3/C that the accused demanded Rs. 3 lacs from her mother on the ground that he had her daughter's clipping. The second version of demand of Rs. 5 lacs for marriage, is irreconcilable State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 19 of 25 with the earlier version of the victim that the accused was more than ready to marry her.
21. It is the consistent stand of the prosecutrix that she was raped time and again on the threat of making clipping and MMS public. But it is an open secret which has been admitted by the IO also that no clipping or video was recovered during investigation.
22. In cross examination as PW2 in the case titled as State Vs. Rajiv @ Bunty arising from FIR No. 779/05, PS Jahangirpuri, the prosecutrix admitted that she had filed a complaint against her husband Sonu Khanna. She admitted that FIR No. 304/14, U/s 406/498A IPC Ex.PW2/DX2 was registered against her husband on her complaint. She further admitted that she had mentioned her name as Disha Khanna instead of Isha Sharma in her complaint. She next admitted that FIR No. 292/11, U/s 420/406/384/506/494/120B IPC, PS Amar Colony, Mark DX, was registered against her by her husband Sonu Khanna. She further admitted that she was arrested in that FIR on 23.07.2012. She next admitted that FIR Ex.PW2/DX3 No. 121/12 dated 04.05.2012, PS Mahendra Park, was registered against her mother and brother. During her cross examination, Ld. Additional PP had taken the stand that the prosecutrix was not an accused in that case. On such objection, her name as Nisha Sharma finding place in that FIR as one of the accused, was shown to her and her reply was that she did not know who that Nisha Sharma was. That reply is again false because appearance of name of Nisha Sharma as accused alongwith names of her mother and brother, State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 20 of 25 leads to only one conclusion that 3rd accused by the name of Nisha Sharma is none else than the prosecutrix. It is pertinent to mention that in earlier FIR, she had mentioned her name as Disha Sharma. Before PW7, she had disclosed her name as Sheetal Sharma. So, the prosecutrix had developed the habit of keeps on changing her name before different persons.
Contents of FIR No. 292 dated 06.08.2011 Mark DX registered by her husband Sonu Khanna against prosecutrix and other family members, are quite startling and eye opener. As per FIR, Sonu Khanna was married with prosecutrix on 13.02.2011 and the marriage was solemnized hurriedly on the insistence of her family members. She remained there till 28.02.2011 when she was taken to her home by her mother and brother. The reception was fixed for 03.03.2011 and when Sonu Khanna went to bring her back, she asked him to forget her as she did not want to leave with him. It is further mentioned that Sonu Khanna was shocked to know that the entire family of the prosecutrix was using her as a source of income by getting false cases registered against innocent persons U/s 376 IPC by making false allegations and getting them arrested and at last, bargaining with them in lacks of rupees. Then he gave reference of FIR Nos. 779/05 and 65/10 (present case), both registered under rape sections in the same PS Jahangirpuri.
There are two photographs Ex.PW9/DA and Ex.PW9/DB in which a boy and a girl are seen garlanding each other. In one of the photograph, the boy is putting vermilion in the maang of the girl.
State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 21 of 25
Presumably these are marriage photographs and both were put to PW9 i.e. mother of the prosecutrix and she admitted that those were of her daughter/ prosecutrix and Bunty @ Chikna, who is an accused in FIR No. 779/05. She denied the suggestion that the prosecutrix had married Bunty @ Chikna but she admitted that she had remained with Bunty @ Chikna for a week. But the prosecutrix exposed her bad conduct by deposing in cross examination that she did not know the boy appearing in photographs Ex.PW9/DA and Ex.PW9/DB. She deposed that she had never married with Bunty @ Chikna and that the photographs do not belong to her.
The above FIRs and evasive replies in cross examination are proving her conduct as bad.
23. It has been held in State vs. Rajiv @ Bunty's case that the prosecutrix had married with that accused in August 2005. The present incident had taken place in 2010. The prosecution did not place on record any document to show that the prosecutrix had taken divorce from Rajiv @ Bunty @ Chikna before coming in the contact with the accused of this case. It did not examine any witness who may have deposed that the prosecutrix had taken divorce from that accused. So, when she came into contact with the accused of this case, her marriage with that accused Bunty @ Chikna was subsisting. Hence, it cannot be said that her consent for sexual intercourse with accused was prompted by his promise of marriage because the prosecutrix was well aware that being already married, she herself was incompetent to marry with the accused. On this State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 22 of 25 score, the case of the accused is well covered by Prashant Bharti vs. State of NCT of Delhi, in Criminal Appeal No. 176 of 2013 (arising out of SLP (Criminal) No. 1800 of 2009), decided on 23.01.2013, in which following was held by Hon'ble Supreme Court of India: "16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecutrix against the appellant accused (in the supplementary statement dated 21.2.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.09.2008 reveals, that the complainant/prosecutrix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecutrix accused Prashant Bharti of having had physical relations with her on 23.12.2006, 25.12.2006 and 01.01.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/ prosecutrix, that the appellant - accused had State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 23 of 25 physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid married with Lalji Porwal.
Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the complainant/prosecutrix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, it would clearly emerge, that the complainant/prosecutrix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 01.01.2007 with the appellantaccused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecutrix, that she was induced to a physical relationship by Prashant Bharti, the appellant - accused, on the basis of a promise to marry her, stands irrefutably falsified".
24. Accordingly, accused Pankaj Mittal is acquitted of the offences, he was charged with.
25. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
26. However, in terms of Section 437(A) Cr.P.C., accused has furnished the fresh personal bond in the sum of Rs. 10,000/ with one State Vs. Pankaj Mittal FIR No. 68/10, PS Mahendra Nagar Page No. 24 of 25 surety of the like amount, which are accepted with the directions to appear before Higher Court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
Digitally signed by UMED UMED SINGH
SINGH GREWAL
Date: 2019.05.31
GREWAL 17:53:49 +0530
Announced in the open Court (Umed Singh Grewal)
On this 24th May 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State Vs. Pankaj Mittal
FIR No. 68/10, PS Mahendra Nagar Page No. 25 of 25