Delhi District Court
Rajan vs State Of Kerala Hon'Ble Supreme Court ... on 19 October, 2016
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 31/2014
State
Versus
1. Alok Chouhan @ Patelu
son of Sh Jai Ram
r/o C1/C, DDA Flats, II Floor
Shivaji Enclave, New Delhi.
Permanent Address:
Village Bhutia Chang, Tea Garden, PS Panri Distt
Udalguri, Assam.
2. Sudershan Chouhan
son of Sh Nidhan Chouhan
r/o C1/C, DDA Flats, II Floor
Shivaji Enclave, New Delhi.
Permanent Address: Same as above.
First Information Report Number : 69 of 2014
Police Station : Rajouri Garden
Under sections 376/506/370/34 of the Indian Penal Code.
Date of receipt of files after committal in : 25.02.2014
the Sessions Court
Date of judgment : 19.10.2016
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JUDGMENT
1. Accused Alok Chouhan has been charge sheeted by Police Station Kirti Nagar, Delhi for the offences under sections 376 and 506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that about 9 months prior to 21.01.2014 at C1C, Second Floor, DDA Flats, Shivaji Enclave, Delhi, accused Alok Chouhan had committed rape upon the prosecutrix (name mentioned in the file but withheld to protect her identity) & threatened her to defame her. It is also the case of the prosecution that about three years back prior to 21/01/2014, accused Sudershan Chouhan had received the prosecutrix (name mentioned in the file but withheld to protect her identity) in his placement agency and till 21/01/2014, accused had exploited her, having control over the prosecutrix (name mentioned in the file but withheld to protect her identity) and he did not let her go back to her native village when she had expressed her desire to go back.
2. After hearing arguments, vide order dated 20/03/2014, accused Alok Chouhan was charged for offence under sections 376/506 of the IPC. Accused Sudershan Chouhan was charged for the offence u/s 370 IPC. Both accused persons pleaded not guilty and claimed trial.
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3. In evidence prosecution has examined 12 witnesses to prove the guilt of the accused persons.
4. PW1 is the prosecutrix. She has deposed that about three years back one Mr. Diga belonging to their village asked her paternal grand mother (dadi) to take her to Madras for work. Her grandmother agreed for the same. She was residing with her grandmother, brother and two paternal uncles (chacha) and their families at village Hathi bari. Her parents were not alive at that time. Mr. Diga had brought her to Delhi instead of taking her to Madras and was brought in the kothi of Mr. Sudhershan, who was running a placement agency. She was brought to Delhi along with her grandmother by Mr. Diga. She along with her grandmother started living in the placement agency of Mr. Sudershan where about 1011 other girls were also staying. They came to know from those girls that it was not Madras rather it was Delhi. They had confirmed this fact from Mr. Diga. Since her grandmother was not to be employed anywhere, so she went back to native village along with Mr. Diga after about 23 weeks. Accused Sudhershan got her employed in one house, where she worked for about three months but the family members where she was working used to scold and beat her, so she did not feel like working there and one day, she got the opportunity & ran away from their house and
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went to nearby police station. Her employer where she was working came to the PS as he was searching for her and on seeing her in the PS he informed the police that she had come from the placement agency of Mr. Sudhershan. Accused Sudershan was called in the PS and she was handed over to accused Sudershan from where she went to his placement agency. She expressed her desire to go back to her native village and therefore she told accused Sudershan that she did not want to work and he should let her go back to her village. Accused Sudershan stated that since she was not having any money with her, so how she would be able to go back. He asked her to work in Delhi for about a year. Thereafter, he employed her in another house. She worked in the said house for about two years. Thereafter, she came back to the office/placement agency of accused Sudershan. She stayed in the office of accused Sudhershan for about a month. One Mr. Alok @ Patelu was also staying in the office of placement agency of accused Sudershan. During the period of her stay in the office of accused Sudershan, one day accused Sudershan and his wife Ms. Sunaina had gone somewhere to Sherawali Mandir at Vaishno Devi and Mr. Alok @ Patelu had gone to the railway station to drop them. At that time, she was in the office with two girls and three other boys. After sometime all the abovesaid girls and boys also went somewhere and she was
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alone in the office, when accused Alok @ Patelu came back from the railway station.
5. Accused Alok @ Patelu rang the door bell, she opened the door and noticed that he was in a drunkard condition. Accused Alok @ Patelu came inside and she went to the kitchen. Witness has further deposed that Accused Alok Chauhan @ Patelu had forcibly committed rape upon her. The incident of rape had occurred about 9 months prior to her lodging the FIR. Accused Alok Chauhan @ Patelu had raped her once. He had also threatened to defame her in case, she disclosed the incident to any one. Due to the threat extended by accused Alok Chauhan @ Patelu and out of fear, she did not report the matter earlier. She had stayed in the office of accused Sudershan for about a month after the rape and thereafter she got employed as a maid in a house at Punjabi Bagh. As she had not gone home to Assam for about three years, her Chacha namely Mr. Babloo with one NGO Bachpan Bachao Andolan with the assistance of police rescued her from the house at Punjabi Bagh. This happened after about 9 months of her rape by accused Alok Chauahan @ Patelu and then she had disclosed about the rape by accused Alok Chauhan and wrongful detention by accused Sudershan Chauhan to the police. Her statement was recorded by the police, which is Ex.PW1/A. Her statement
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u/s 164 Cr.P.C (Ex.PW1/B) was recorded by the Ld. MM. Her medical examination was conducted The site plan was prepared at her instance, which is Ex.PW1/E. Accused Alok Chauhan was arrested in her presence vide arrest memo (Ex.PW1/F).
6. PW2 is HC Prem Lal. He has stated that on 21/01/2014 he was posted as duty officer and on the basis of rukka, he has registered the FIR of present case and proved the copy of the same as Ex.PW2/A.
7. PW3 Ct Virender Singh has joined the investigation with the IO on 28/01/2014. in his presence, accused Sudershan Chouhan was arrested. Disclosure statement of accused was recorded in his presence.
8. PW4 Ct Anil Kumar has joined the investigation with the IO on 21/01/2014. In his presence, accused Alok Chouhan was arrested. Disclosure statement of accused was recorded in his presence.
9. PW5 Ms Swati Jha, Project CoCoordinator has deposed that in his presence, prosecutrix had made a complaint in PS Rajouri Garden.
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10. PW6 Ms Vandana, Ld Metropolitan Magistrate had recorded the statement of prosecutrix u/s 164 Cr.P.C and proved the same as Ex.PW6/A.
11. PW7 Ms Reena Goyal has deposed that on 05.04.2014, it appears to be a typographical error and date should be 05.04.2013, as is clear from Ex. PW7/A, she was provided one house maid (prosecutrix) (name mentioned in the file but withheld to protect her identity) by one Mr. Sudershan, who was running the placement agency in the name of Sunaina Enterprises Service. She had paid commission of Rs. 30,000/ to Mr. Sudershan for the employment of prosecutrix. She had also paid one month salary of Rs. 2800/ to Mr. Sudershan. She was required to pay salary of Rs. 2800/ per month to prosecutrix. Prosecutrix had worked in her house till 21.01.2014. Witness has further deposed that on 21.01.2014 she had gone to Pacific Mall, Rajouri Garden, where she had received a phone call from her sister in law (jethani) to the effect that some police officials along with some persons from NGO had come to their house. She immediately came back to her residence. She was informed that prosecutrix had come to Delhi for work without the consent of her parents. She was not aware of this fact that she had come to Delhi without the consent of her parents. The police told her
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that she had come about 3 years earlier. She informed them that prosecutrix had been working in her house for the last about 10 months. Thereafter, prosecutrix was taken by the police and the persons from the NGO from her house.
12. PW8 Dr Prabhjot Sr Obs and Gynae in DDU hospital has proved that he examined prosecutrix medically and the MLC of prosecutrix EX.PW8/A.
13. PW9 Dr Ramesh, DDU Hospital has proved the MLC of prosecutrix as Ex.PW8/A, as he had examined the prosecutrix earlier and then referred for gynae examination.
14. PW10 Dr Shweta Aggarwal from DDU hospital has proved the MLC of accused as Ex.PW10/A.
15. PW11 Dr Vipin Kumar Jha from DDU hospital has proved the MLC of accused as Ex.PW10/A, as he had examined accused Alok Chouhan @ Patelu under supervision of Dr. Shweta Aggarwal.
16. PW12 SI Sumitra is the IO of the case. She has deposed that on 21.01.2014 prosecutrix along with Ms. Swati Jha, officer Bachpan Bachao Andolan, NGO came in the PS. She had recorded the statement of prosecutrix. After
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counselling the prosecutrix, she along with Prosecutrix went to the DDU hospital for medical examination of prosecutrix. No samples were given by the doctor after medical examination as the incident was very old. After medical examination, witness along with prosecutrix came back at PS. On the same day, the statement of prosecutrix under section 164 Cr.P.C was recorded by Ld MM. On the pointing out of prosecutrix, she had arrested accused Alok Chauhan @ Patelu vide arrest memo (Ex.PW4/A). His personal search was taken vide personal search memo (Ex.PW4/B). Disclosure statement (Ex.PW12/A) of accused Alok Chouhan @ Patelu was recorded. Accused Alok Chuahan @ Patelu was sent with Ct. Anil for his medical examination to DDU Hospital. On return Ct. Anil had handed over the blood and other samples of the accused, which were seized by her vide seizure memo (Ex.PW4/C). On 28.01.2014 she along with Ct. Virender had gone to Tihar Jail, where after completion of formalities, she had formally arrested accused Sudershan Chauhan vide arrest memo (Ex.PW3/A). Disclosure statement of accused Sudershan was recorded, which is Ex.PW3/B.
17. Witness has further stated that she got conducted ossification examination of prosecutrix and proved the Ossification report as Ex.PW12/B. Statement of the prosecutrix was recorded by Ld Metropolitan Magistrate.
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After completion of investigation, charge sheet was filed before the court.
18. Thereafter prosecution evidence was closed.
19. Statement of accused persons u/s 313 Cr.P.C were recorded wherein they have denied the allegations. They have submitted that they have been falsely implicated in the present case. Accused persons had stated that they do not want to lead evidence in defense.
20. I have heard arguments from Ms Sadhna Bhatia, Ld Amicus Curiae for accused persons as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
21. It is submitted by Ms Sadhna Bhatia, Ld Amicus Curiae for accused persons that there is delay of nine months in lodging the FIR as the incident is about nine months prior to 21/01/2014. It was also argued by Ld Amicus Curiae that prosecution has not been able to prove its case against accused Alok Chouhan u/s 376 IPC as no medical examination of the prosecutrix had been conducted. It is also argued by ld Amicus Curiae that prosecution has also not been able to prove its case against accused Sudershan Chouhan as there was no allegation of prosecutrix about
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her being trafficked or for exploitation. In her statement, prosecutrix had stated that she had come to Delhi with her parental grand mother, hence it cannot be said that she came to Delhi, without consent of the parents. With these submissions, it is prayed by Ld Amicus Curiae that accused persons be acquitted, for the offences, they are charged with.
22. On the other hand, Sh Subhash Chauhan, Ld Additional P.P had submitted that prosecutrix has specially stated in her complaint, in examination in chief as well as in statement u/s 164 Cr.P.C, that, accused Alok Chouhan had committed rape upon her and thereafter threatened her of dire consequences. Because of threat prosecutrix could not inform about the incident to her employer or other persons. It is also submitted by Ld Additional P.P that accused Sudershan Chouhan has exploited the prosecutrix & he did not let her go back to her native village when she had expressed her desire to go back. Prosecutrix was recovered from the house of PW7 Smt Reena Goyal by NGO Bachpan Bachao Andolan. Therefore, it is prayed by ld Additional P.P that accused persons be convicted for the offences, they are charged with.
23. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
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24. In the present case, accused Sudershan Chouhan has been charged for the offence u/s 370 IPC on the allegation that accused Sudershan Chouhan had committed offence of trafficking the prosecutrix by exploiting her and also by not letting her go back to her native village and thus, prosecution has stressed that accused Sudershan Chouhan be convicted for the offence u/s 370 IPC. On the other hand, accused Alok Chouhan has been charge sheeted for the offence u/s 376/506 IPC on the allegation that on a day about nine months prior to 21/01/2014 he had committed rape upon prosecutrix and had threatened her of dire consequences. In order to prove the case, prosecutrix being material witness, has been examined as PW1 by the prosecution. PW5 Ms Swati Jha is Project Coordinator from Bachpan Bachao Andolan and PW7 Ms Reena Goyal, employer of the prosecutrix, from where prosecutrix was recovered by NGO Bachpan Bachao Andolan. Rest other witnesses examined by prosecution are either police officials who have taken part in the investigation of the case or are the doctors, who have medically examined the prosecutrix and accused persons.
25. In order to appreciate the offence prescribed under section 370 IPC, it is reproduced as under:
Section 370 IPC:
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Trafficking of person (1) whoever, for the purpose of exploitation, (a) recruits, (b) transports,
(c) harbours, (d) transfers, or (e) receives, a person or persons, by First using threats, or Secondly using force, or any other form of coercion, or Thirdlyby abduction, or Fourthlyby practicing fraud, or deception, or Fifthlyby abuse of power, or Sixthlyby inducement including the giving or receiving of payments, or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred of receive, commits the offence of trafficking.
26. In order to prove the case u/s 370 IPC, it is the duty of the prosecution to prove, beyond reasonable doubt that accused had recruited, transported, harboured, transferred or had received the prosecutrix for the purpose of exploitation. Although, the word exploitation has not been defined in the section but by way of explanation, it has been mentioned that the word 'exploitation', includes any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery.
27. Thus, in order to prove the offence u/s 370 IPC, against accused Sudershan Chouhan, prosecution was required to prove that prosecutrix was brought to the employment or recruited by the accused in order to exploit her. In the present case, it is admitted case of the prosecutrix
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that she was major at the time when she came to Delhi. It is also admitted case of the prosecution that prosecutrix was brought to Delhi by some person namely 'Mr Diga' along with parental grand mother of prosecutrix. It is also admitted case of the prosecution that prosecutrix was not having her parents alive at that time and she was living in the care and custody of her grand mother ie 'Dadi' and her two parental uncles (chacha). Once it is admitted by the prosecution that prosecutrix had come to Delhi with her grand mother, in whose care and custody, prosecutrix was living at that time and also the fact that she was major at that time and was brought by some other person namely, Mr Diga and brought to the employment agency of accused Sudershan Chouhan, where prosecutrix stayed as she wanted to work as maid but her grand mother returned back to the native village as she was not ready to work as maid. It cannot be said that it was the accused Sudershan who had transported or transferred the prosecutrix. There is no allegation levelled or proved by the prosecution at any stage, or by any witness, to show that accused had not paid any money to the prosecutrix or that prosecutrix was forcibly kept at the agency of the accused. There is not even a single averment of 'exploitation' done by accused Sudershan Chouhan against prosecutrix. It is admitted case of the prosecutrix that she came to Delhi with her grand mother, although, she was made to believe that
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she was being taken to Madras. But this was done by Mr Diga and not by accused Sudershan Chouhan. Hence this fact cannot be read against accused Sudershan Chouhan. It is admitted case of prosecutrix that she worked for three months in a house but as she did not like working there, she ran away from that house and reached to some PS from where she was handed over to accused Sudershan Chouhan and again she was employed by accused to some house where she worked for two years. In the entire statement of the prosecutrix, there is not even single averment that her salary was not given to the prosecutrix or that any amount is due to be given to the prosecutrix by the accused Sudershan Chouhan. At the time, when prosecutrix was recovered from the house of PW7 Smt Reena Goyal, even at that time, she was working as maid and no allegation has been levelled by her that no money had been given to her, which was due to her. Hence, I am of the view that there is no allegation of 'trafficking' done by accused Sudershan Chouhan nor same has been proved beyond reasonable doubt by the prosecution.
28. It is also important to mention here that as per testimony of PW5, machinery of Bachpan Bachao Andolan came into action, when uncle of prosecutrix came to Delhi and made a complaint about the prosecutrix being not allowed to visit her native village. Prosecution has not examined said 'chacha' of
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the prosecutrix nor any such complaint made by uncle of prosecutrix, has been placed or proved by the prosecution. Hence, I am of the opinion that prosecution has not been able to prove that prosecutrix was being restrained from visiting her native village or that she was being trafficked for the purpose of exploitation by accused Sudershan Chouhan. The testimony of prosecutrix is completely silent on this aspect. Hence, in my opinion prosecution has failed to prove the charge u/s 370 IPC against accused Sudershan.
29. As regards the allegation against accused Alok Chouhan, allegation of prosecutrix is that nine months prior to 21/01/2014, accused Alok Chouhan had committed rape upon prosecutrix when she was present in the office of accused Sudershan Chouhan and no other person was present there, at that time. There is only one testimony of prosecutrix for proving the offence against accused Alok Chouhan. Due to lapse of time, even the sample of prosecutrix were not taken by the doctor and as such, there is no medical evidence nor there is any scientific evidence in the form of FSL result, which could connect accused with the offence of rape.
30. Although, there are various judgments of Hon'ble Supreme Court and Hon'ble High Court to the effect that even the sole testimony of prosecutrix, if reliable, is sufficient to
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convict the accused, but in such cases sole testimony of prosecutrix is to be very carefully appreciated, so as to avoid false implication of accused.
31. In the case (2013) 9 Supreme Court Cases113Kaini Rajan vs State of Kerala Hon'ble Supreme Court has held that "conviction can be based on the sole testimony of prosecutrix if her version does not arouse doubt in mind of court. When facts and circumstances cast a doubt on the veracity of the prosecution case. It would be unsafe to convict the accused relying on uncorroborated version of prosecutrix"
32. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except
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the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
33. From the perusal of the judgments mentioned above, it is clear that conviction can be based on the sole testimony of the prosecutrix but the requirement is that testimony of prosecutrix should point out clearly towards the accused for being the preparator of the crime. Thus, law requires the testimony of prosecutrix to be so strong, which proves the guilt of the accused beyond reasonable doubt and in such like cases, corroboration of testimony of prosecutrix is not required.
34. However, in the present case, testimony of prosecutrix is very weak kind of testimony. Although, prosecutrix has alleged that she was raped by accused Alok Chouhan, while she was present in the office of accused Sudershan Chouhan but neither she made any complaint to the accused Sudershan Chouhan for such offence nor she had made any complaint to any girl or boy, who were living in the placement agency along with her. She had also not complained about this fact to her employer ie PW7, when she was put to job by accused Sudershan Chouhan. Even the boys and girls, who were
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present at that time, in the office of accused Sudershan Chouhan have not been examined by the prosecution to prove that they had gone out at the time of alleged incident. Even the wife of accused Sudershan Chouhan has not been examined by the prosecution to prove that on the alleged date of incident, accused Alok Chouhan had gone to drop accused Sudershan Chouhan and his wife Sunaina to Railway Station as they were travelling to Mata Vaishno Devi. By examining wife of accused Sudershan Chouhan, prosecution could have been able to prove the presence of prosecutrix in the office of accused at that time and would also have been able to lend some credence to the testimony of prosecutrix that at that time, she was alone in the office and accused Alok Chouhan was also working in that office.
35. In the absence of testimony of material persons, I am of the opinion that case of the prosecution suffers from material defects and thus prosecution has not been able to prove that it was accused Alok Chouhan, who had committed offence of rape against prosecutrix or that any such offence of rape was ever committed against prosecutrix by any other person.
36. In view of my above discussion, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt that accused Alok Chouhan had forcibly committed
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rape upon prosecutrix & threatened her, version of the prosecutrix is unreliable and untrustworthy, benefit of which is to be given to the accused. Prosecution has also failed to prove its case beyond reasonable doubt that accused Sudershan Chauhan had trafficked the prosecutrix for the purpose of exploitation. Hence accused Alok Chouhan is acquitted of the offence u/s 376/506 IPC & accused Sudershan Chouhan is acquitted of the offence u/s 370 IPC
37. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 19th October, 2016 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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