Delhi District Court
State vs . 1. Balinder on 8 January, 2016
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 77/15.
Unique Case ID No. 02405R0118582015.
State Vs. 1. Balinder
S/o Sh. Ramphal
R/o H.No.249 Village Kultaran,
Distt. Kaithal (Haryana).
2. Ramphal
S/o Late Sh. Jia Lal,
R/o H.No.249 Village Kultaran,
Distt. Kaithal (Haryana).
3. Suresh Kumar
S/o Sh. Pirthi,
R/o H.No.249 Village Kultaran,
Distt. Kaithal (Haryana).
4. Veerbhan
S/o Late Sh. Chandu Ram,
R/o Village Surjakhera,
Tehsil Narwana,
District Jind (Haryana).
5. Smt. Bala (Already discharged on 04.11.2015)
W/o Sh. Ramphal,
R/o H.No.249 Village Kultaran,
Distt. Kaithal (Haryana).
Date of Institution : 10.9.2015.
FIR No. 843 dated 20.12.2014.
U/s. 376/506 IPC.
P.S. Dwarka South.
Date of reserving judgment/Order : 05.1.2016.
Date of pronouncement : 08.1.2016.
SC No.77/15. Page 1 of 15
JUDGMENT
1. Accused Balinder, his parents Ramphal and Smt. Bala, his uncle Suresh Kumar and his maternal grandfather Veerbhan were chargesheeted by the prosecution for the offences u/s. 376/506/109/34 IPC.
2. It is the case of the prosecution that accused Balinder was residing at Delhi in the neighbourhood of the prosecutrix namely 'K' (real name withheld in order to conceal her identity) and had become friend of her husband. He was on visiting terms to their house. One day, he visited the house of the prosecutrix in the absence of her husband and raped her. He also prepared obscene video of the prosecutrix and threatened her that if she narrated the incident to anybody, he would defame her as well as her husband and would also kill her husband as well as her children. On account of fear, the prosecutrix kept quiet. One day accused Balinder told her that he has talked to a wealthy person in Chandigarh and would arrange a permanent house for her there but for that purpose, she would have to give a proof of her marriage with him. She refused, upon which accused threatened her that it is not a big deal for him to kill any person and she would have to agree to what he says or otherwise, he would eliminate her husband and her children. In order to save the lives of her husband and her children, she accompanied Balinder to Chandigarh where he took her signatures on various blank documents. He also prepared false marriage documents and filed an application in Punjab & Haryana High Court for police protection. Thereafter, he took the prosecutrix to her native village Surjakhera and told her that she would have to live with him there.
SC No.77/15. Page 2 of 15When she refused to live with him, his father Ramphal, uncle Suresh and maternal grandfather Veerbhan gave severe beatings to her and asked her to remain quietly there. When her husband alongwith some other persons reached village Surjakhera in her search, Ramphal, Suresh and Veerbhan asked Balinder to take her to village Surjakhera. Accordingly, accused Balinder took her forcibly to village Shergarh, District Patiala, where he again took her signatures on blank papers. He also made her to file a false case for maintenance against her husband. He also committed rape upon her at Shergarh. One day, she succeeded in escaping from the confinement in the absence of accused Balinder and came to Delhi. She narrated her entire ordeals to her husband.
3. The prosecutrix had then reached police station on 20.12.2014 where she submitted a typed complaint which was entrusted to SI Kusum Lata for necessary action. She made inquiries from the prosecutrix, prepared rukka and got the FIR registered. After the registration of the FIR, investigation was commenced by SI Kusum Lata. She got the prosecutrix medically examined in DDU Hospital and seized the exhibits given by the doctor. She produced the prosecutrix before the Ld. M.M. in the court on 24.12.2014 who recorded her statement u/s.164 Cr.PC wherein she mentioned that Balinder's father, uncle and maternal grandfather had also raped her. It came to be known during the course of investigation that the husband of the prosecutrix had lodged a missing report regarding her in P.S. Dwarka South vide DD no.20A dated 10.7.2013. IO served notice u/s.41(a) Cr.PC upon the accused persons and they joined the investigation. It also came to be known that the prosecutrix had lodged a complaint in SC No.77/15. Page 3 of 15 CAW Cell, Dwarka, on 02.8.2013 against her husband, her parents, her brother and other relatives. The IO obtained a copy of the said complaint and also the enquiry report. She came across the statement of the prosecutrix dated 09.9.2013 in that file wherein she has mentioned that she apprehends danger at the hands of her husband and has solemnized marriage with Balinder. The IO did not think it necessary to arrest any of the accused during the course of investigation.
4. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned court.
5. Upon committal of the case to the court of Sessions, accused Smt. Bala was discharged vide order dated 04.11.2015. On the same day, the Charges u/s.323/34 IPC and u/s.506/34 IPC were framed against the accused Ramphal, Suresh Kumar and Veerbhan. Further Charge u/s.344/34 IPC was framed against accused Balinder, Ramphal, Suresh Kumar and Veerbhan. Further Charges u/s.376 IPC, u/s.366 IPC, u/s.506 IPC were framed against accused Balinder. All the accused denied the charges and hence trial was held.
6. At trial, the prosecution examined five witnesses in all to prove the guilt of the accused. The accused were examined u/s. 313 Cr.PC on 27.11.2015 wherein they denied the prosecution case and claimed false implication. Accused Balinder, however, admitted that the prosecutrix had accompanied her to Chandigarh. He further stated that she did so as she was not happy with her husband and had herself asked him to take her to Chandigarh. He SC No.77/15. Page 4 of 15 further stated that the prosecutrix herself was willing to marry him and therefore, they first solemnized marriage in temple and then approached the court for protection. He also stated that the prosecutrix had accompanied him willingly as his wife to his village Surjakhera and stayed with him voluntarily and willingly.
7. The accused chose not to lead any evidence in their defence.
8. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
9. The prosecutrix has been examined as PW3. She deposed that she knew all the four accused as they are residing in the neighbourhood of her matrimonial house at Delhi. She further deposed that accused Balinder became friend of her husband last year and started visiting their house regularly. After her husband got a job, accused Balinder used to visit her house in the absence of her husband. She stated that Balinder came to their house on 09.7.2014 at about 11 a.m. or 12 noon when her husband was away for work and committed rape upon her. He also prepared her obscene video and threatened her not to disclose the incident to anybody or otherwise, he would show the video to everybody.
10. She further deposed that accused Balinder came to her again after two to three days and asked her to accompany him to Chandigarh. She refused but he insisted upon her to accompany him. Upon her further refusal, he threatened her that in case, she did not accompany him, he would get her husband and her SC No.77/15. Page 5 of 15 children killed. She got scared and hence went alongwith him to Chandigarh. She deposed that upon reaching Chandigarh, he forced her to sign various blank papers. Then he took her to the court where he produced her before a Judge and when they came out of the court, she found that accused's mother, father and maternal grandfather were present there. She heard them saying that Balinder has solemnized a court marriage with her.
11. She further stated that accused Balinder took her forcibly in a car to the house of his maternal grandfather Veerbhan in village Surjakhera where she was kept confined for two days. Thereafter, they came to know that her family members would be reaching there and asked Balinder to take her to his maternal uncle's house in Shergarh. Accordingly, Balinder took her to Shergarh and kept her confined in the house of his maternal uncle for about one week. Thereafter, she was again taken to village Surjakhera where she was kept confined upto March, 2015.
12. She further deposed that her husband Suresh Kumar reached there in her search in March, 2015, found her and brought her to Delhi. After 5 to 6 months, she got the complaint Ex.PW3/A typed from a typist and submitted the same in the police station. From the police station, she was taken to DDU Hospital where her medical examination was conducted. She also proved her statement u/s.164 Cr.PC as Ex.PW3/B. She further deposed that accused Balinder used to have physical relations with her regularly against her consent at Surjakhera as well as at Shergarh. She also stated that accused Veerbhan had committed rape upon her on one occasion whereas accused Ramphal had raped her twice.
SC No.77/15. Page 6 of 1513. In the cross examination, she could not tell the date and month when she alongwith accused Balinder had appeared in the High Court of Punjab & Haryana in Chandigarh. She did not know what was mentioned in the writ petition filed in the High Court in Chandigarh. She deposed that she did not submit any application to the Superintendent of Police, Kaithal, seeking protection from her parents and added that the said application was got prepared by accused forcibly from her. She admitted that the photographs Ex.PW3/C (colly) are of her marriage with accused Balinder and these were taken in the temple at Panchkula. She stated that these photographs were taken before they appeared in the High court and further explained that they appeared in the High Court on the same day, on which marriage was performed and these photographs had been taken.
14. She did not recollect the date when she accompanied Balinder to Chandigarh. She stated that they changed 2 or 3 buses on the way to Chandigarh. There was several passengers in each of the buses. She did not raise alarm in any of these buses. No family member of Balinder was with them in the buses. She did not tell either the drivers or the conductors of those buses about her plight. She admitted that when her husband reached village Surjakhera in her search, a Panchayat was convened there. Her husband, her parents and her in-laws were present in the Panchayat. However, she did not know what was decided in the Panchayat. She stated that after the Panchayat, she came to Delhi alongwith her husband.
SC No.77/15. Page 7 of 1515. She further deposed that she stayed at village Kultaran also alongwith Balinder for 2 to 3 months. There was no toilet in the house in Kultaran, in which she was kept. She used to go to the neighbour's house to use their toilet. She stated that she was not in a position to narrate her plight to the inmates of that house as Balinder's mother used to keep a watch on her. She further stated that she was not allowed to go outside the house in Surjakhera as well as in Shergarh.
16. She denied having lodged any complaint against her husband and her in-laws in P.S. Dwarka South in the year 2013. At the same time, she admitted that she had submitted a complaint against her husband in CAW Cell in the year 2013. She also admitted that Ex.PW3/D is a copy of the said complaint bearing her signature at point A. She, however, denied that she was not happy with her husband, wanted to obtain divorce from him and wanted to marry accused Balinder. She admitted having not mentioned in her typed complaint Ex.PW3/A and in her statement u/s.161 Cr.PC that accused Ramphal and Veerbhan had committed raped upon her.
17. The husband of the prosecutrix has been examined as PW4. He deposed that when he returned from his job on 09.7.2013, he found that his wife was not present in the house. He searched for her for about two days but could not trace her. He came to know that accused Balinder, who alongwith his parents and sisters was residing as tenant in the same house, is also missing from his house for these two days. He contacted Balinder's father, who told him that Blainder has gone to R.K. Puram for a SC No.77/15. Page 8 of 15 job. He suspected the hand of Balinder in the disappearance of his wife. He lodged a missing report in the police station on 10.7.2013.
18. He further deposed that after about ten days, his co- brother-in-law (Saadu), who resides in Surjakhera, made a call to him saying that his wife has been brought to Surjakhera. He alongwith police officials visited Surjakhera where accused Veerbhan met them and told them that his wife is not there. Accordingly, they returned to Delhi. He further stated that he alongwith his brother, uncle and parents-in-law again visited village Surjakhera on 12.8.2013 where a Panchayat was convened and it was decided in the Panchayat that he should take back his wife. Hence he brought his wife to Delhi alongwith him.
19. He further stated that his wife again left alongwith Balinder in the month of September, 2013, without informing him. Balinder had taken her to village Kultaran on that occasion. He visited Kultaran on 08.3.2014 and brought his wife back. Thereafter, he alongwith his wife visited P.S. Dwarka South on 20.12.2014 where she submitted a complaint, on which FIR was registered.
20. In the cross examination, he admitted that the police officials had told him that after inquiries, they have come to know that his wife is staying voluntarily with Balinder. He also admits that his wife filed a complaint against him in CAW Cell and P.S. Dwarka South in the year 2013.
SC No.77/15. Page 9 of 1521. Sh. Rajesh Kumar, the Sarpanch of village Surjakhera, has been examined as PW2. He deposed that a Panchayat was convened in the village on 12.8.2013 at the request of Veerbhan as Veerbhan's nephew Balinder had brought a girl named 'K' alongwith him to the village and they were staying in the house of Veerbhan. He stated that K's husband, parents and other relatives had come to the village to take her back and on this issue, a Panchayat was convened. He deposed that the lady 'K' refused to go alongwith her husband and parents and wanted to stay with Balinder but it was agreed in the Panchayat that husband and parents of 'K' would take her alongwith them on their own responsibility. They would be responsible for any untoward incident which may happen. He proved copy of the agreement reached in the Panchayat as Ex.PW2/A, which bore his signature as well as the signature of K's husband and her parents. He further stated that thereafter 'K' was taken by her husband and her parents.
22. In the cross examination, he deposed that he saw lady 'K' in the Panchayat but did not talk to her separately. According to him, nobody had complained to him that 'K' has been kept confined by Balinder forcibly. The lady 'K' also did not make any complaint to him.
23. IO SI Kusum Lata has appeared as PW5. Apart from mentioning in detail the steps taken by her in the investigation of this case, she has also stated that after the prosecutrix had disappeared in July, 2013, her husband had lodged missing report which was recorded as DD No.20A dated 10.7.2013, pursuant to SC No.77/15. Page 10 of 15 which her husband alongwith Const. Vijay Kumar had visited the area of P.S. Garhi, District Jind, Haryana, to bring back the prosecutrix but the prosecutrix told them that she is staying voluntarily with accused Balinder. According to her, Const. Vijay had made DD entry in this regard in the police station bearing no. 68B dated 18.7.2013. She proved a copy of the said DD as Ex.PW5/C. She had also obtained a copy of the enquiry report regarding the complaint filed by the prosecutrix in CAW Cell against her husband, her parents and her brother and proved the same as Ex.PW5/D. She further stated that the prosecutrix had handed over to her a copy of the writ petition filed by her jointly alongwith accused Balinder in the High Court of Punjab and Haryana at Chandigarh, which she had seized. She stated that she made local enquiries in village Surjakhera and also in Kaithal but nobody told her that the prosecutrix has been confined there forcibly by the accused.
24. According to the deposition of the prosecutrix, she was raped by accused Balinder at her house on 09.7.2014 and he had also prepared her obscene video. She has further deposed that she had to accompany the accused to Chandigarh later on per force due to the threat given to her by him and thereafter the accused kept her confined in her house in village Surjakhera upto March, 2015 when her husband reached there and found her. The defence put forward by the accused is that the prosecutrix accompanied him voluntarily to Chandigarh as she was not happy with her husband, solemnized marriage with him in the temple willingly and was staying with him in village Surjakhera willingly.
SC No.77/15. Page 11 of 1525. The prosecutrix has admitted in her cross examination that she had filed complaint Ex.PW3/D against her husband in CAW Cell in year 2013. She has mentioned in the said complaint that her husband returns home in drunken condition daily and beats her. She has also mentioned that her husband has illicit relations with some other lady and her brother in law Sunil has bad eye upon her. It is thus manifest that the prosecutrix was not having cordial relations with her husband and in-laws and therefore, she had a reason for not being happy with her husband. She has also admitted that photographs Ex.PW3/C (colly) were clicked at the time of her marriage with accused Balinder in a temple at Panchkula. She is seen smiling and in a happy mood in these photographs. The photographs do not give any indication that she has been brought there forcibly and she had been forced to solemnize marriage with accused Balinder.
26. Further she has also deposed that they appeared in the High Court at Chandigarh on the same day, on which the marriage was performed by them. It appears that the prosecutrix and accused Balinder after solemnizing marriage with each other, had approached the High Court of Punjab & Haryana at Chandigarh by way of a joint Criminal Miscellaneous petition no. 24807/13 seeking protection to their life and liberty at the hands of the parents of the prosecutrix. A copy of the said writ petition alongwith the order dated 01.8.2013 passed thereon by the High court was seized by the IO from accused Balinder's father Ramphal during the course of investigation vide seizure memo Ex.PW5/E. Perusal of the order dated 01.8.2013 passed by the High Court and the said petition reveals that both the prosecutrix as well as SC No.77/15. Page 12 of 15 accused Balinder were present in the court on that day and submitted to the court that they have married each other on their own free will on 24.7.2013. Upon being satisfied that both of them were major, the High Court directed the Superintendent of Police, Kaithal and the SHO, P.S. City Kaithal to ensure that no harm is caused to the life and liberty of these two individuals.
27. The proceedings which took place before the High Court in the aforesaid writ petition reveals two things. Firstly, that the prosecutrix had eloped with the accused Balinder voluntarily and solemnized marriage with him willingly against the wishes of her parents. Secondly, that all this happened in the month of July, 2013, and not in the month of July, 2014, as stated by the prosecutrix in her deposition. Thus when the prosecutrix had voluntarily solemnized marriage with the accused on 24.7.2013 and thereafter was staying willingly with him as his wife, there was no reason or occasion for the accused to commit rape uon her on 09.7.2014 or on any day before that date, as alleged by the prosecution.
28. Further, the deposition of IO (PW5) shows that on the same day on which missing report was recorded in the police station vide DD No.20A, Constable Vijay had accompanied PW4 to District Jind, Haryana, to trace the prosecutrix but the prosecutrix told them that she is staying voluntarily with accused Balinder. This fact has been recorded in the police station vide DD No.68B dated 18.7.2013. This demonstrates that the prosecutrix was not taken by accused Balinder forcibly but had accompanied him willingly and was staying with him on her own wish as well as SC No.77/15. Page 13 of 15 happlily. It appears that it is for this reason that PW4 alongwith his parents in law again visited village Surjakhera in August, 2013 where Panchayat was convened at their request and the prosecutrix was sent alongwith them despite her protests.
29. Both the prosecutrix (PW3) and her husband (PW4) have deposed that when PW4 reached village Surjakhera on 12.8.2013 to bring back his wife a Panchayat was convened there. The prosecutrix has deposed that her husband, her parents and in- laws were present in the Panchayat but she did not know what was decided in the Panchayat. PW4 has deposed that it was decided in the Panchayat that he should take his wife back and accordingly, he brought his wife i.e. the prosecutrix back to Delhi alongwith him. PW2, the Sarpanch of village Surjakhera, who also was present in the Panchayat, has deposed that the prosecutrix refused to go either with her husband or with her parents and wanted to stay with accused Balinder but it was agreed in the Panchayat that her husband and her parents would take her alongwith them on their own responsibility and they would be responsible for any untoward incident which may happen. He has also proved writing Ex.PW2/A which was executed during the proceedings of the Panchayat wherein also it is mentioned that the prosecutrix is refusing to go alongwith her husband and her parents but they are taking her alongwith them on their own responsibility. Therefore, it is further evident that the prosecutrix was not happy with either her husband or her parents and did not want to go and stay with either of them. She wanted to stay with accused Balinder as she was living happily with him. This conduct of the prosecutrix completely trashes the prosecution case.
SC No.77/15. Page 14 of 1530. PW4 has further deposed that after he brought his wife back from village Surjakhera on 12.8.2013, she left alongwith accused Balinder again in the month of September, 2013 without informing him, who had then taken her to village Kultaran. He has further deposed that he visited Kultaran on 08.3.2014 and brought his wife back. Therefore, it is further manifest that even after being brought from village Surjakhera by her husband and her parents, the prosecutrix did not lose her love and affection for accused Balinder and wanted to stay with him and accordingly, eloped with him again in September, 2013. PW4 has also admitted in his cross examination that the police officials had told him that after inquiries, they have come to know that his wife is staying with accused Balinder voluntarily.
31. The evidence on record clearly reveals that the prosecutrix has lodged a false complaint against the accused giving a concocted version, probably at the instance of her husband and her parents. What actually had happened is that she was not happy with her husband (PW4) who used to beat her regularly, developed friendship with accused Balinder, eloped with him to Chandigarh where they solemnized marriage and that she was staying happily with him.
32. Therefore, all the accused are hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 08.1.2016. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.77/15. Page 15 of 15