Delhi District Court
State vs Anil Dariya @ Deepak Dariya on 24 November, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 45/2010
Unique ID No. : 02401R0584712010
State versus Anil Dariya @ Deepak Dariya
S/o Sh. Kishore Singh Dariya
R/o Plot No.1, Sanik Mohalla,
Bijwasan, Delhi.
Case arising out of:
FIR No. : 94/2010
Police Station : Patel Nagar
Under Section : 417/406/376/495 IPC
Judgment reserved on : 07.11.2014
Judgment pronounced on : 24.11.2014
JUDGMENT
CASE OF THE PROSECUTION:
1. The case in hand has been registered pursuant to the directions issued by the learned MM, consequent upon filing of a complaint under Section 156(3) Cr.PC by the complainant 'M' (name withheld in order to protect her identity) against accused Deepak Dariya @ Anil Dariya. 'M' stated in her complaint that she is living at Baljit Nagar, New Delhi along with her family and her ailing grandmother, whose last wish was to see the complainant being married in her lifetime. She has further stated in her complaint that her father started searching for a suitable groom and finally found the accused on 'jeevansathi.com ID No.VXV 9528'. Accused told the father of the complainant that he is working in Helix Financial at Gurgaon. Thereafter, the complainant got married with the accused as per Hindu Rites and Ceremonies on 28.02.2009 at IBlock, Patel Nagar, Delhi.
2. The complainant further alleged in her complaint that her parents and relatives also gave dowry as per their status including jewelleries worth Rs.2 lacs and a cash amount of Rs.1.50 lakh besides other articles etc. The complainant lived with her husband at RZH867, Raj NagarII, Palam Colony, New Delhi for about one week and both of them established physical relations with each other as husband and wife.
3. Prosecutrix also alleged in her complaint that one day accused told the complainant that he has been transferred to Pune and has to join there. He then asked the complainant to give him her jewellery as the accused need some urgent money. The accused assured the complainant that he will get prepared other jewellery again for the complainant after some time. She also alleged that she tried to contact the accused on his mobile No.9910735201, but the accused did not respond. In the month of May, the accused called the complainant and told her that he has not got a good dowry from the family of the complainant and that he will only think over to come to the complainant if she gives money to him after arranging it from her parents. He also told the complainant that she would never be able to get him as his company members will never tell about his whereabouts. The complainant told the accused that her parents cannot arrange the money and requested him to come back and take her along with him. Thereafter, whenever complainant visits the office of the accused 'Helix Financial" at Gurgaon, the accused come to know of the fact as the members of his company always inform him about the visit of the complainant.
4. The complainant further alleged in her complaint that two of the friends of the accused namely Arun Kumar, Helix Financial, 3th Floor, Augustha Point, Sector 53, Gurgaon having mobile No.9910395293 and Chander, Keane World Zen, Park Plaza Hotel, Unitech Business Park, Gurgaon were the informers of accused and are involved in this whole episode. It is also alleged in her complaint that the accused had called her up and threatened her that she and her family members would loose their life and limb if she will not stop searching him and visiting his office.
5. The complainant also stated in her complaint that her father filed complaints at PS Patel Nagar on 10.05.2009 and 05.06.2009 vide DD No.42B and DD No.13A respectively, but to no avail. She also filed complaint at the PS Patel Nagar on 23.06.2009 vide DD No.26A with copy thereof to the ACP, DCP and Commissioner of Police, Delhi, but no action has been taken on her complaint.
6. The complainant lastly averred in her complaint that she believes that the accused is already married and has fraudulently married her by concealing the first marriage and has established physical relations with her. She also alleged that the accused has also cheated her by taking all her jewellery and stridhan articles and caused wrongful loss to her and has also misappropriated her of her money/articles/stridhan and made dowry demands.
7. The case having been registered as aforesaid, the Investigation Agency recorded statement of the witnesses and seized the Marriage Card, Photo and CD from the Prosecutrix. Prosecutrix 'M' was also got medically examined from LHMC and her statement under Section 164 Cr.PC was got recorded before the learned MM. Accused was arrested on 04.07.2010 and the marriage card of his previous marriage and a photograph were recovered during his PC Remand. During the course of further investigation, in a reply to notice issued to the Jeevansathi.com under Section 91 Cr.PC, it was revealed that accused Anil @ Deepak, while using mobile Nos.9910735201 & 9650563771 at jeevansathi.com has created fake profiles as 5X2556, YTT4292, YSS8913, WAV7363, WZX8846, WZW9187, WZT4190, VUW5601, UTZ1662 & TZT7571.
8. During the course of further investigation it also transpired that accused obtained the aforesaid two mobile Airtel phone nos. viz., 9910735201 & 9650563771 in his name on the basis of Driving Licence No.R7479/DTOH issued on 17.12.2000 given by him as a mode of ID Proof to the service provider wherein his date of birth of the accused was shown as 16.09.1975, whereas in his educational certificate the same has been mentioned as 07.09.1981. Upon verification of the same from the MLO, Transport Authority, Hisar (Haryana) it was revealed that the said licence has not been issued by their office to the accused. Thereafter, after completion of the proceedings charge sheet was filed in the court.
CHARGES :
9. Upon committal of the case accused Deepak Dariya @ Anil Dariya was charged for the offences punishable under Sections 376/406/417/471 IPC vide order dated 05.07.2011. Further, consequent upon filing of application under Section 216 Cr.PC, accused was also charged for the offence under Section 495 IPC vide order dated 10.07.2013. Accused pleaded not guilty and claimed trial when the aforesaid charges were read over and explained to him separately. PROSECUTION EVIDENCE:
10. In order to bring home the guilt of accused, Prosecution examined as many as twenty two [22] witnesses on record which may, for the sake of convenience, be categorized as under:
Public Witnesses:
11. First and foremost, it is relevant to discuss the testimony of the Prosecutrix 'M', at whose complaint instant case has been registered. Upon stepping into the witness box as PW4, Prosecutrix 'M' deposed that in the month of September, 2008, she made one profile at Jeevansathi.com for the proposal of her marriage. Thereafter, she received 34 proposals for her marriage and out of those 34 proposals, selected one profile of accused Deepak Dariya in the month of December, 2008. She then contacted Deepak through internet twice or thrice and they chatted through internet.
They also talked twice or thrice on telephone. During those talks, Deepak Dariya requested her to meet him personally. At the request of Deepak Dariya, she called him to meet her at Bangla Sahib Gurudwara in December, 2008 and met him at Gurudwara for 1520 minutes. Thereafter, Deepak Dariya left due to some personal work and she returned back to her home.
12. Prosecutrix/PW4 further deposed that after 23 days of said meeting, she received SMS of Deepak at her mobile phone No.9891887187 in regard to his willingness and acceptance of her profile. He also asked her to talk to her parents and informed them about the proposal of marriage.
13. At this, parents of Prosecutrix called him to meet them at Bangla Sahib Gurudwara in the month of December, 2008 itself. Her family members and some relatives met him and they also approved him as match for her marriage. In the month of January, 2009, her brother namely Narender along with his friend Anil had gone to the office of Deepak Dariya at Gurgaon to verify the antecedents of Deepak. Her brother met him in his office and thereafter he returned back and was satisfied with the said proposal of her marriage with Deepak.
14. On 28.2.2009, Prosecutrix got married with accused Deepak as per Hindu rites. She correctly identified accused Deepak in court and further deposed that the marriage was performed at LBlock, Baljeet Nagar which was attended by her relatives, but no family member from the side of accused was present and the marriage was attended by the friends and office colleagues of Deepak.
15. PW4 further deposed that after her marriage, she along with accused started residing at Palam Colony, Raj Nagar, which was taken on rent by the accused just prior to their marriage and she stayed in that house with accused for about 710 days and during this period her marriage was consummated and they had physical relations as husband and wife.
16. Thereafter, accused told her that he has to go to Pune for some official work for about 15 days and left after leaving her in the said house. She remained in touch on phone with the accused but when he did not return after 15 days, she asked him when he will come back at this accused told her that he will come back soon after completing his work. Thereafter, she kept on waiting for the accused but after further 810 days, accused stopped receiving her calls. Then, she sent SMS to accused and asked him why he is not attending her calls. At this, he replied through SMS that due to some network problem, he was not receiving signals in his mobile phone. Accused also avoided the telephone calls made by her family members and used to disconnect the phone upon hearing their phones. Finally, he switched off his mobile phone. Then, they suspected about the activities of accused. They contacted Airtel service provider to verify whether his mobile phone was on roaming or not and they were told that the said mobile phone was not working on roaming and working in Delhi itself. It was also revealed upon enquiry from his office at Gurgaon that the accused has left the said job. Then in the month of May, 2009, she made a complaint to PS Patel Nagar regarding missing of her husband which is Ex. PW4/A. Thereafter, when she came to know that she had been cheated by the accused, she made another complaint to the police which is Ex. PW4/B running into three pages.
17. PW4 further deposed that when the accused left from Palam Colony, Raj Nagar, he had taken away all the jewellery worth of Rs. 1.52 lakhs and cash Rs. 1.5 lakhs given at the time of marriage. On her said complaint, police made enquiries and also visited the office of accused at Gurgaon. Police had also collected some documents of accused from his office i.e educational certificates. From those documents, it was revealed that the actual name of Deepak was Anil.
18. PW4 further deposed that initially, no case was registered by the police on her said complaint. Then, she made a complaint to the Court and due to intervention of the court, case was registered by the police.
19. After registration of FIR, police made enquiries from her and her parents and also collected photographs of her marriage, marriage card and DVD of video recording of her marriage. Photographs were seized vide seizure memo Ex. PW4/C and photographs given to the police are Mark P1 and P2. Marriage card was also seized vide seizure memo Ex. PW4/D and seizure memo DVD is Ex. PW4/E bearing my signatures at points A.
20. PW4 further correctly identified her signatures on the statement recorded under Section 164 Cr.PC by ld. MM and proved the same as Ex.PW4/F. The Prosecutrix lastly deposed that during inquiry made by the police from the office of accused at Gurgaon, it was revealed that accused was already married about 34 years back. She also deposed that the accused got married with her despite knowing that he was already married and he concealed this fact from her.
21. Father of Prosecutrix 'P.S.' (name withheld) was examined as PW5. He deposed that he is residing at Baljeet Nagar along with his family members consisting of his wife, his son namely Narender and daughter 'M' i.e. Prosecutrix. His daughter was aged about 29 years in the year 2010 and he was looking for match for her marriage. He further deposed that his daughter 'M' had also made profile on website Jeevansathi.com and they were looking for a good match for her marriage.
22. PW5 correctly identified the accused Deepak Dariya @ Anil Dariya and further deposed that on 28.02.2009, his daughter got married with the accused as per Hindu Rites and Customs. Her daughter came into contact with the accused through Jeevan Sathi.com as accused was also having profile in the said website. When he contacted accused prior to marriage of his daughter with the accused, accused told them that he is a native of Haryana and further told them that his parents had expired in the year 2003 and he was not having other relative. Accused told them that he was employed with Helix Financial Company having their office at Sector 53 Gurgaon and was residing in a rented accommodation.
23. PW5 further deposed that after the marriage accused started living with his daughter at H.No.RZH867, Raj NagarII, Palam Colony, Delhi and at the time of marriage, accused demanded cash Rs.2 lacs which he had given to him and also given jewellary worth Rs.1.5 lacs. His daughter and accused resided at the aforesaid rented accommodation for one week. Thereafter accused left the house on the pretext of going outside Delhi for some official work. At that time, accused had taken away cash and jewellary given at the time of marriage of his daughter, with him. Whenever they tried to contact accused on his mobile phone, his mobile phone remained out of coverage area. When accused did not return, his daughter also came to the house of PW5 and started living with them.
24. PW5 also deposed that in the month of March, 2009 few days prior to Holi festival his daughter made a phone call which was attended by the accused and when his daughter asked about whereabouts of the accused, he replied that he will return soon and was held up due to some official work. On the next day of Holi festival accused came to their house and he stayed for one day with them and on the next day accused taken away his daughter along with him to their aforesaid rented accommodation. After staying for 23 days with my daughter accused left the house on the pretext of going out of Delhi for official work. But, thereafter accused never returned back. When his daughter made a complaint at PS Patel Nagar against the accused then they along with police had gone to the office of accused at Gurgaon and on verification, it was revealed that the actual name of accused was Anil Dariya. On further inquiry by the police, they came to know that accused was already married and that his first wife was residing at Bijwasan.
25. PW5 further deposed that after registration of the case against the accused, he had given DVD of marriage ceremony, photographs and marriage card which were already exhibited vide seizure memo Ex.PW4/C, Ex.PW4/D & Ex.PW4/E respectively.
26. PW2 is Sh.Kamla Pd. Shukla. He deposed that on 28.02.2009, he performed the marriage of the Prosecutrix 'M' daughter of his one of the acquaintances with accused Deepak Kumar at Patel Nagar, New Delhi on the request of Sh.Khem Chand, who is known to him and resides in the neighbourhood of the temple in which he is priest.
27. Sh.Satbir Singh, who is the landlord of H.No.RZH867, Gali No.13,Raj NagarII, Palam Delhi was examined as PW9. He correctly identified the accused in the court and deposed upon being examined by the Prosecution that in February, 2009, he let out one room on the IInd floor of his house to the accused at monthly rent of Rs.2500/ where accused lived for about one week along with his wife namely 'M'. PW9 further deposed that thereafter, the accused left and the wife of the accused told him that her husband left her without informing her and after few days, she also left his house.
28. Sh.Amitendra Singh Antal stepped into witness box as PW10. He deposed that he have been working with Info Edge India Ltd. since 2005 and that in July, 2010 he was working as Sr. Manager (Legal). He further deposed regarding receipt of notice under Section 91 Cr.PC by the police at the office of Malviya Nagar which is Ex.PW10/A and sending its reply to the police thereafter containing 14 pages which is Ex.PW10/B. He also deposed that the said record is computer generated from the computer of the company and is not tampered with in any manner. He also deposed that the IP details, date and time were provided in E.S.T (Eastern Standard Time) which is approximately 9½ hours behind Indian Standard Time (IST) and further proved certificate regarding his deposition under Section 65B of Indian Evidence Act as Ex.PW10/C.
29. PW11 is Sh.Om Prakash Meena who deposed that he is the owner of H.No.204, Sector 23, Hudda, Gurgaon, Haryana and that he was called by the police of PS Patel Nagar for making inquiries about accused Anil Dariya @ Deepak Dariya S/o Sh.Kishore Singh. He further deposed that he went to PS Patel Nager and told the police that no person in the name of Anil Dariya @ Deepak Dariya S/o Sh.Kishore Singh was ever his tenant at his aforesaid address nor he know him.
30. Photographer Praveen was examined as PW12. He deposed that he is running the business of photography from his residence and he also know Sh.Pyara Singh as he is residing in his neighbourhood. He further deposed that Prosecutrix 'M' is the daughter of Sh.Pyara Singh and that on 28.02.2009, he had taken photographs of marriage ceremony of Prosecutrix and also done videography of the same.
31. PW12 also deposed that he had prepared two CDs and one DVD of video recording and handed over the same to Sh.Pyara Singh and that the photographs of marriage were taken by using digital camera which he has been using regularly for his business of photography. This witness correctly identified the photographs Ex.PW12/A and Ex.PW12/B to be that of accused with the Prosecutrix 'M', which he had taken and further identified the DVD, placed on record, which was played on computer and shown to him, to be the same which he had prepared on the basis of the videography taken by him at the time of marriage ceremony of Prosecutrix 'M' with accused in which both are also appearing and proved the same as Ex.PW12/C.
32. Sh.Arun Kumar was examined as PW19. He deposed that on 15.12.2008 he had joined Helix Advisors India Private Limited as Administrative Executive. He correctly identified the accused and further deposed that he was working the said company as Senior Manager at that time and that in the month of January, accused left the job. Thereafter, he was not in contact with accused except for on one or two occasions when he talked to him telephonically in relation to some official work.
33. PW19 further deposed that after some days, Prosecutrix 'M' came to his office to make inquiries about the accused but she was asking about him with some other name. As he was working as Administrative Executive, she came to him to make the said inquiries and was also carrying one photograph of the accused. On seeing the photograph, he told her that the said person was working in their company and his name is Anil Dariya. She also asked him about the address and other particulars of accused Anil Dariya. He consulted his Manager and told her that they cannot give these details unless there is a police case.
34. PW19 further deposed that after some time, one police official namely SI Nafe Singh and one Constable came to their office and asked for the same information qua accused Anil Dariya and after seeing the copy of FIR produced by those police officials, the Manager of the company permitted him to handover all the details about the accused as per record of the company. He also deposed that as per the resume of the accused which was in company records, his marital status was 'Married'.
35. PW21 is Sh.Dilip Kumar Singh. He deposed that he is running a Cyber Cafe in the name of C.L.C. Cyber Cafe at his residence for the last 78 years and that he had maintained the record regarding the ID Proof of customers who visit his cyber cafe for net surfing. This witness also brought the register maintained by him for the period from 11.01.2009 to 09.08.2010 and further deposed that as per the said record, there are two entries regarding use of cyber cafe by accused and that the said entries are of dated 12.01.2009 and 13.01.2009 bearing the signatures of Anil. This witness correctly identified the accused in the court and further deposed that on 26.08.2010 police came to his cyber cafe and he handed over the copy of the entries of his aforesaid register which were seized vide seizure memo Ex.PW21/A and that of copy of entries as Ex.PW21/B.
36. Sh.Deepak Kanda, Nodal Officer, Bharti Airtel Ltd. was examined as PW13. This witness brought the IP detail information which has been generated from the computer of the company and not tampered in any manner and proved the same as Ex.PW13/A. This witness further deposed that he has also seen the IP detail information placed on record except IP No.117.201.81.23 which is not available now due to lapse of time. He also deposed that the said IP information which has also been generated from the computer of the company is not been tampered with in any manner and proved the same as Ex.PW13/B. He also proved the certificate under Section 65B of Indian Evidence Act as Ex.PW13/C.
37. PW13 also brought the attested copy of Customer Application Form (CAF) related to mobile phone No.9650563771 and 9910735201 with ID Proofs and proved the same as Ex.PW13/D and Ex.PW13/E. This witness also proved their original customer application forms upon seeing the same on record and proved the same as Ex.PW13/F and Ex.PW13/G respectively with their ID Proofs.
38. Sh.Lalit Kumar, Asstt. Ahlmad from the Family Court, Tis Hazari Courts, Delhi was examined as PW16. This witness brought the summoned record of the case titled as 'M' vs. Anil Kumar bearing HMA Case No.347/14 under Section 11 r/w 5(1) of Hindu Marriage Act for grant of decree declaring the marriage between the parties as null and void ab initio. This witness also proved the certified copies of the written statement as well as affidavit filed by the accused Anil Kumar Dariya @ Deepak Dariya as Ex.PW16/A and Ex.PW16/B respectively.
39. Sh.Hawa Singh was examined as PW17. He deposed that while he was working as Assistant Secretary, Regional Transport Authority, Hissar, Haryana on 18.10.2010, SI Ravi Kant of PS Patel Nagar, Delhi had come to the said authority to verify a Driving Licence No.R17479 DTOH dated 17.12.2000 which was issued in the name of Anil Kumar S/o Sh.Kishore Dariya R/o B170, Anaz Mandi, Hissar, Haryana. On checking the record, he found that the said Driving Licence was not issued from Regional Transport Authority, Hissar, Haryana. This witness also proved his report on the notice under Section 91 Cr.PC as Ex.PW17/A which is in his own handwriting and bearing his signatures and seal of Transport Authority at point A. Doctor :
40. Dr.Archana Mishra was examined as PW1, who deposed regarding having conducted medical examination of Prosecutrix 'M' on 08.05.2010 vide MLC No.489 and proved her report as Ex.PW1/A. Expert witnesses :
41. Sh.Deepak Dabas, learned MM stepped into witness box as PW6. He deposed regarding having recorded the statement under Section 164 Cr.PC of the Prosecutrix 'M' on 05.07.2010 and proved the same as Ex.PW4/F.
42. Sh.Vijender Singh, Senior Scientific Officer (Documents), FSL, Delhi was examined as PW18. He deposed regarding having conducted the examination of the documents which were received in the office of FSL and assigned to him for examination on 29.10.2010 and proved his detailed report with regard to the same as Ex.PW18/A. He also deposed regarding having examined the five sheets containing specimen handwriting S1 to S5 as Ex.PW18/B (Colly.), the customer application forms with copy of DL (Ex.PW13/F & Ex.PW13/G) and annexed documents containing questioned signatures Q1 to Q8.
Police Witnesses :
43. Remaining witnesses pertain to investigation which include PW3 SI Rishi Pal (Duty Officer), who recorded the FIR of this case on 30.04.2010 upon receipt of a complaint brought by Reader to SHO, PS Patel Nagar and proved the computer generated copy of the same as Ex.PW3/A and his subsequent endorsement on the same as Ex.PW3/B.
44. PW7 is SI Nafe Singh, Ist IO of this case. He deposed that on 30.04.2010, the investigation of this case was marked to him and during the course of investigation, he made inquiries from the complainant, her parents and her brother and also recorded their statements under Section 161 Cr.PC.
This witness also deposed regarding getting the Prosecutrix medically examined at LHMC and also collection of marriage photograph, marriage card and one CD of the her marriage with the accused from the Prosecutrix and seized the same as Ex.PW4/C to Ex.PW4/E respectively. This witness further deposed regarding making of enquiries from the relative of the complainant namely Sh.Khem Singh, who had performed the marriage of the Prosecutrix with the accused and also recorded his statement.
45. PW8 is ASI Rakesh Tyagi who deposed regarding collection of photocopy of educational documents of accused Anil Kumar Dariya from his office at Helix Financial, Sector23, Gurgaon and proved the same as Mark PW8/A1 to PW8/A6.
46. PW14 is HC Indu Bala. This witness was summoned to produce some complaints. However, she deposed that as per the orders of Addl. Commissioner of Police (Central), Delhi dated 08.06.2012, all types of complaint and complaint register up to 31.12.2009 have been destroyed. This witness also proved the copy of the order as Ex.PW14/A and her report in this regard as Ex.PW14/B.
47. PW15 SI Ganesh Kumar and PW20 Ct.Satish are the witness to the arrest of the accused Anil Dariya @ Deepak Dariya. Both these witnesses deposed on the similar lines and deposed regarding the arrest of accused Anil Dariya @ Deepak Dariya from Plot No.1, Sainik Mohalla, Bijwasan, Delhi on the intervening night of 0304.07.2010 and proved his arrest memo Ex.PW15/A, his personal search memo Ex.PW15/B and also his disclosure statement as Ex.PW15/C.
48. PW22 is SI Rajnikant, IInd IO of this case. He deposed after the case was assigned to him for further investigation, he made search for the accused and on 03.07.2010, on receipt of secret information he along with SI Ganesh, SI Vikas Malik and Ct.Satish reached at the house of accused at Plot No.1, Sanik Mohalla, Bijwasan, Delhi and arrested him vide arrest memo Ex.PW15/A. He also conducted his personal search and recorded his disclosure statement vide memos Ex.PW15/B & Ex.PW15/C respectively.
49. PW22 further deposed regarding seizure of certain documents (vide seizure memo Ex.PW4/DE), pertaining to profile of accused of Jeevansathi.com upon being produced by the Prosecutrix vide Ex.PW4/DB, Ex.PW4/DC and Ex.PW4/DF, conducting of medical examination as well as potency test of the accused vide MLC Ex.PW22/A & Ex.PW22/B respectively, getting recorded statement of the Prosecutrix under Section 164 Cr.PC before the learned MM, recovery of marriage card (Ex.PW22/P1) at the instance of accused vide seizure memo Ex.PW22/C and two photographs of his earlier marriage (Ex.PW22/P2 & Ex.PW22/P3) vide seizure memo Ex.PW22/D.
50. PW22 further deposed that the first wife of the accused Mamta was also found at the house of the accused and he recorded her statement under Section 161 CrPC. This witness further proved the pointing out memo pertaining to the house of the accused at IIIrd floor at H.No.RZH867, Gali No.13, Raj NagarII, Palam, Delhi, where he had kept the Prosecutrix 'M' after the marriage and proved the same as Ex.PW22/E. He also recorded the statement of the landlord of the said house.
51. PW22 further deposed that on 09.07.2010, he recorded the statements of Pandit Kamla Prasad who performed the marriage of accused with Prosecutrix and Arun Kumar, Manager, Hellix Company. This witness further deposed regarding serving of the notice Ex.PW10/A to Jeevansathi.com and receiving of their reply Ex.PW10/B. PW22 further deposed that during the course of investigation he also examined Om Prakash Meena, the owner of house No.201, Gurgaon, which address was mentioned by the accused in his resume and also recorded the statement of Praveen, Photographer who took the photographs of marriage of accused with the prosecutrix and also identified the photographs Ex.PW12/A and Ex.PW12/B and CD Ex.PW12/C, placed on file.
52. PW22 also deposed regarding having examined the legal head of InfoEdge namely Amitender Singh and the duty officer who had registered the FIR. He also served the notice upon the Airtel Company vide Ex.PW22/F and Ex.PW22/G and collected the copy of the Customer Application Form (CAF) (Ex.PW22/P4 and Ex.PW22/P5). PW22 also examined Dalip Kumar, the owner of cyber cafe and collected the copy of register (Ex.PW21/B), the same vide seizure memo Ex.PW21/A and upon preparation of the charge sheet filed the same in the court.
53. PW22 further deposed regarding filing of the supplementary charge sheets qua the accused consequent upon receiving of verification report (Ex.PW17/A) with respect to Driving Licence of the accused from Transport Authority, Hissar, Haryana as well as upon receipt of FSL report (Ex.PW18/A) pertaining to signatures of the accused on original CAFs (Ex.PW13/F & Ex.PW13/G) with admitted signatures of the accused. STATEMENT OF ACCUSED AND DEFENCE EVIDENCE :
54. In his statement recorded under Section 313 CrPC, accused pleaded innocence and false implication. He stated that prosecutrix used to visit his office i.e. Helix Financial where he was working as Admn. Officer. She used to take printing order from their office. Accused stated that prosecutrix falsely implicated him in this case due to dispute relating to some payment of official printing work got done through her and also in order to extort money from her. Accused further stated that Ex. PW16/A, Ex. PW16/B, Ex. PA and Ex. PB and subsequent bail applications were prepared on the basis of FIR and final report by his counsel while he was in custody. Accused also stated that the photographs and video recording Ex. PW12/A to Ex. PW12/C are manipulated.
55. Accused examined only one witness viz., Sh.P.W. Tapre, Asstt. Electoral Officer, Patel Nagar in his defence, who brought the summoned record i.e. Electoral Roll of Baljeet Nagar Constituency and the Electoral details of Prosecutrix and proved the same as Ex. DW1/A [colly]. ARGUMENTS, ANALYSIS AND FINDINGS :
56. I have heard the detailed submissions of Ld. Defence Counsel as well as Ld. Addl. PP for State and have also gone through the detailed written submissions filed on behalf of the accused and considered the relevant case laws cited during the course of arguments. I have also gone through the evidence brought on record during the course of trial, both by the Prosecution as well as defence.
57. The case of the Prosecution has been opposed by the defence on various counts. It has been firstly contended by learned defence counsel that the case of the Prosecution that Prosecutrix 'M' was not aware of the name of the accused as Anil at the time of filing of police complaint is totally false. My attention was drawn to her crossexamination wherein her own complaints Ex.PW4/A and Ex.PW4/B were put to her wherein the name of the accused is clearly mentioned as Anil. Learned defence counsel thus argued that the allegation of misrepresentation by accused that his name is Deepak is a concocted story and this claim of the Prosecutrix is apparently false.
58. The next argument of the defence is that the Prosecution has failed to prove that the accused sent his marriage profile and phone number to the Prosecutrix as no copy of any such email was ever proved on record during trial. Learned defence counsel further argued that the Prosecutrix also deposed during her crossexamination that all the three profiles of accused Ex.PW4/DC, Ex.PW4/DB and Ex.PW4/DF were downloaded by her from her Email account and were given to the police during investigation. It was argued that it is thus apparent that since the aforesaid profiles of the accused were downloaded from Prosecutrix herself from her Email, any change could have been done by her only. It was pointed out by learned defence counsel that in these circumstances the version of the Prosecutrix that there was a change of the profile of the accused Ex.PW DC cannot be accepted. Moreover, she offered no explanation for not mentioning about the said change of profile of the accused either in her statement recorded during the course of investigation nor during her examinationinchief.
59. It was further argued that the Prosecution has also not led any evidence to establish that the accused created his fake profile on the website of 'Jeevansathi.com'. It was argued that though the owner of the Cyber Cafe was examined as PW21 Sh.Dilip Kumar Singh, however, there is nothing on record to establish that any of the profiles of the accused was created from the said Cyber Cafe as none of the IP addresses brought on record by way of Ex.PW13/A relate to the IP address in the name of Sh.Dilip Kumar Singh (PW21). Moreover, PW10 Sh.Amitendra Singh Antal was also unable to produce any record to show the ownership of the said profile as being that of the accused. My attention was drawn to the record produced by PW10, which was exhibited as Ex.PW10/B during the course of trial. A perusal of the same reveals that the names of the owners of the profiles VXV9528 and UTZ1662 were not available in the record.
60. Learned defence counsel further argued that as per PW21 Sh.Dilip Kumar Singh, his Cyber Cafe was working from 8:30 AM to 9:00 PM. On the other hand, PW10 Sh.Amitendra Singh Antal deposed that the IP details, date and time were provided in Ex.PW10/B in E.S.T (Eastern Standard Time), which is approximately 9½ hours behind I.S.T. (Indian Standard Time). A conjoined reading of the testimonies of PW10 and PW21 thus shows that the profile VXV9528 which was created from IP address 122.162.168.170 at 01:12:37 EST would imply that it was created at about 9½ hrs somewhere in the midnight when the Cyber Cafe was not functional. Similarly, the time of creation of profile of UTZ1662 is stated to be 00:09:48 EST, which was also not during the working hours of the Cyber Cafe of PW21. It was thus contended by the defence that the entire case of the Prosecution that the accused created fake profiles on the website of 'Jeevansathi.com' does not stand proved on record.
61. The next argument of the defence is that the Prosecution completely failed to prove its case that the accused was also married to one Mamta. It was contended that apparently as per record, the alleged first wife of the accused namely Mamta was not produced in the witness box by the Prosecution during the course of trial. Apart from that, no evidence has been led to proved that the accused was already married to Mamta. Learned defence counsel contended that no other witness to any such marriage was brought before the court. Moreover, reliance by the Prosecution upon the bail applications filed on behalf of accused Ex.PA & Ex.PB is completely misplaced inasmuch as the accused was in custody when the said bail applications were filed and he cannot be bound by the statements made therein by his counsel.
62. Further, learned defence counsel relied upon the ruling of Hon'ble Supreme Court in a case titled as Smt.Priya Bala Ghosh vs. Suresh Chandra Ghosh, 1971(1) SCC 864 in support of his arguments that the written statement filed by the accused in the petition under Section 11 r/w Section 5(i) of Hindu Marriage Act, 1955 filed by the Prosecutrix 'M' before the concerned court, wherein the accused claimed that he was also married, cannot be said to be substantive evidence to prove that he was already married.
63. It was thus contended that there is no evidence whatsoever to establish the case of the Prosecution that the accused was already married to anyone, much less any lady known as Mamta, when he allegedly contracted marriage with Prosecutrix 'M'.
64. Learned defence counsel while extending his said arguments further submitted that the marriage with the Prosecutrix 'M' has also not being proved by the Prosecution for want of cogent evidence to this effect. The testimony of PW2 Sh.Kamla Pd. Shukla was stated to be unreliable. Learned defence counsel drew my attention to his crossexamination wherein he stated that he has no document to show that he is qualified to solemnize the marriages. Moreover, his claim that he performs marriages without making any inquiries is also stated to be damaging to the case of the Prosecution. The CD of the said marriage Ex.PW12/C is also stated to be doubtful and it was contended by the defence that as per the claim of the PW7 IO/SI Nafe Singh, the CD was not sent for expert analysis to ascertain its genuineness by the IO due to paucity of time, thus, making the genuineness of the said CD doubtful. The photographs of the marriage of the accused with the Prosecutrix 'M' were also claimed to be forged and fabricated by the defence during the course of arguments. The marriage invitation card Ex.P1 was also stated to be unreliable piece of evidence and in support of this argument learned defence counsel drew my attention to the crossexamination of Prosecutrix (PW4), wherein she was confronted with her earlier statement Ex.PW4/DX, as per which she has got printed the marriage invitation card herself, which she denied during the course of her crossexamination.
65. Learned defence counsel further argued that the case of the Prosecution regarding giving of the dowry to the accused at the time of his alleged married with the Prosecutrix 'M' and the allegations that he misappropriated the same, also does not stand proved in view of the fact that even the receipts/bills regarding purchases of any such jewellery articles were not produced by the Prosecution during the trial.
66. The next contention of the defence is that there is no evidence of the alleged joint stay of accused with Prosecutrix as husband and wife in the rented accommodation at Palam Colony for one week in view of contradictory claims of the Prosecutrix and other Prosecution witnesses.
67. Lastly, it was argued that the case of the Prosecution that the accused obtained the fake driving licence or used the same in order to get the mobile phone connections from Bharti Airtel Limited also does not stand proved inasmuch as the original licence was not produced during the trial. Moreover, the FSL report Ex.PW18/A also belies the case of the Prosecution as no opinion with regard to the alleged handwriting of the accused on the Customer Application Form (CAF) Ex.PW13/F & Ex.PW13/G could not be tallied with the sample signatures taken during the course of investigation.
68. On the basis of the aforesaid submissions, learned defence counsel vehemently argued that the case of the Prosecution is false and deserves to be rejected and the accused is entitled to an acquittal.
69. The Prosecution, on the other hand, claimed that the testimony of the Prosecution and other public witnesses examined during the course of trial clearly proved each and every allegation against the accused and there is no ground to acquit the accused for the offences for which he has been facing trial.
70. Considering the submissions of the defence as well as Prosecution, the evidence on record may be analyzed after categorizing it as under, for the sake of convenience: A) Creation of fake profiles by Accused on the website of Jeevansathi.com:
71. It is the claim of the Prosecution that accused created fake profiles on the website of Jeevansathi.com, wherein he claimed to be unmarried and the Prosecutrix 'M' (PW4) after seeing the said profile contacted the accused and ultimately their marriage was solemnized on 28.02.2009.
72. In order to establish its case that the accused created his fake profile on the said website, the Prosecution examined PW10 Sh.Amitendra Singh Antal, who deposed that in July, 2010 he was working as Sr. Manager (Legal) with Info Edge India Limited. It is not in dispute that Info Edge India Limited was operating the website of Jeevansathi.com. PW10 proved, as Ex.PW10/B, the response given by the company to the notice issued under Section 91 Cr.PC (Ex.PW10/A) during the course of investigation to Info Edge India Limited. In response to the said notice, it was responded to the queries as under: "1. Whether the profile of VXV9528 (Deepak) and UTZ1662 (Karan were created on Jeevansathi.com?
Two profiles had been created with the user Ids mentioned above details are as follows:
VXV9528 A. Name of Profile ID with full name of owner Name of Profile ID : VXV9528 Full Name of owner : Not Available (as available in our records.) B. Registration details of the whole profile (IP address with date & time, profile details etc.) from creation till date.
The profile was created from the IP address 122.162.168.170 Date & time of creation 06.08.2008/01:12:37 EST * The email ID being used by the individual to access his profile was [email protected].
* Enclosed are printouts of the Profile samjoy as it existed at the time of deletion from the website.
C. Is it a paid profile? No. D. If yes, then how much amount the website has accepted from the said profile owner? NA E. Provide details of payment? As above.
F. Any other relevant information : Profile was deleted on 08th May, 2009 at 07:31:43 EST by the user of the profile.
UTZ1662 A. Name of Profile ID with full name of owner Name of Profile ID : UTZ1662 Full name of owner : Not available (as available in our records) B. Registration details of the whole profile (IP address with date & time, profile details etc. from creation till date.
The profile was created from the IP address 122.163.226.2 Date & time of creation 18.05.2008/00:09:48 EST * The email ID being used by the individual to access his profile was [email protected] * Enclosed are printouts of the Profile UTZ1662 as it existed at the time of deletion from the website.
* Mobile number provided by the user: 9650563771 C. Is it a paid profile? No D. If yes, then how much amount the website has accepted from the said profile owner? NA E. Provide details of mode of payment? As above F. Any other relevant information : Profile was deleted on 05th September, 2009 at 12:09:51 EST by the user of the profile."
73. Thus, as per Ex.PW10/B, the profile ID VXV9528 was created from IP address 122.162.168.170 on 06.08.2008 at 01:12:37 EST.
74. In order to prove the physical address of the said IP address, the Prosecution relied upon Ex.PW13/A, which record was produced by PW13 Sh.Deepak Kanda, Nodal Officer from Bharti Airtel Limited. It would be noticed on perusal of Ex.PW13/A that the customer name and address relating to IP 122.162.168.170 dated 06.08.2008 is in the name of one Indranil Saha resident of Khasara No.32, Rao Chaturbhuj Marg, Gali Number 3, Kapashera.
75. In view of the aforesaid record, it is apparent that the Prosecution has failed to establish that the profile in the name of Deepak Dariya bearing ID No.VXV9528 was created by the accused.
76. Similarly, the other profile alleged to be that of the accused allegedly created in the name of Karan Kumar bearing ID No.UTZ1662, has not been proved to have been created from IP address 122.163.226.2 on 18.05.2008, since as per Ex.PW13/B, no record with regard to the said IP addresses could be found.
77. In view of the aforesaid evidence, I find myself inclined to agree with the submissions of the defence that the Prosecution has failed to establish that the aforesaid two profiles i.e. Ex.PW4/DC (ID No. VXV9528) and ExPW4/DB (ID No.UTZ1662) were created by the accused Deepak Dariya @ Anil Dariya.
B) First marriage of Accused with Mamta:
78. It is apparent on going through the record that PW Mamta, alleged to be the first wife of the accused, could not be traced during the entire length of trial despite best efforts by the Investigation Agency. It is the claim of the defence that there is no such person in the name of Mamta nor the accused was ever married to anyone, much less to any lady by the name of Mamta.
79. Considering the evidence led on record, I am however unable to accept this claim of the defence. It has rather been proved by the Prosecution that the accused was already married and also having a child from the said marriage. In this regard, it may be noted that the two bail applications Ex.PB and Ex.PA were admittedly filed on behalf of accused before the concerned courts on 14.07.2010 and 05.10.2010. In both the said applications, it has been claimed that the accused is leading a married life with his wife namely Mamta and also having a female child aged about two years.
80. Though the accused has taken a plea that both the said applications were not filed as per his instructions, however, I am unable to accept this plea of the defence. Undoubtedly, the bail applications Ex.PB & Ex.PA could not have been filed without the execution of a Vakalatnama i.e. Power of Attorney by the Accused in favour of his counsel who was thus authorized by Accused to move the bail applications Ex.PB & Ex.PA before the concerned court.
81. The bail order, which forms part of the record, also shows presence of the learned counsel appearing on behalf of accused at the time of arguments on the said bail applications. Though, it is the contention of the defence that the learned defence counsel who represented the accused during the hearing of the said bail applications, was instructed by his family members, as he himself was in Judical Custody, still the fact remains that there is no reason to presume that the counsel would be given incorrect or false instructions with regard to the marital status of the accused. There can be no reason, whatsoever, to hold that the marital status of the accused was incorrectly stated in two consecutive bail applications, which were admittedly moved on behalf of the accused.
82. Moreover, the accused has also admittedly filed his written statement Ex.PW16/A in the HMA Petition No.42841/10 filed by the Prosecutrix 'M' under Section 11 r/w Section 5(1) of the HMA, 1955 against the accused. In the said written statement Ex.PW16/A, duly supported by an affidavit of the accused (Ex.PW16/B) dated 23.12.2010, the accused again claimed in para6 of the said written statement that he has a very beautiful wife and loving child and is happily married.
83. It may be reiterated that the written statement Ex.PW16/A, duly accompanied by affidavit of the accused Ex.PW16/B, which he executed after seeking permission of the court, for appearing before the Oath Commissioner, vide his application Ex.PWDB, was allowed by the court vide order dated 11.11.2010.
84. It is further interesting to note that after filing of the charge sheet in the present case before the court of concerned ld. MM on 01.08.2011, the accused filed an application under Order 6 Rule 17 C.P.C.
Thereby seeking an amendment in his written statement Ex.PW16/B, vide application Ex.DC, claiming that it has been wrongly pleaded in the written statement that he is already married and that he is having a child.
85. It is a matter of record and also not disputed by the accused that the said application for amendment in the written statement Ex.DC was dismissed by the concerned court vide order dated 07.06.2012. Even otherwise, it is more than obvious that the application seeking amendment in the written statement filed after the filing of charge sheet in the present case, is nothing more than an afterthought and an attempt by the accused to retract from his written statement Ex.PW16/B, regarding his marriage to Mamta and his child born out of the said wedlock.
86. It may further be noted that in his statement recorded under Section 313 Cr.PC recorded in this case on 18.09.2014, the accused stated that he had instructed his counsel to prefer an appeal against the order passed in the application Ex.DC. Thus, apparently, that order dated 07.06.2012 has not been challenged till date, thus making it final.
87. The aforesaid documents i.e. bail applications moved on behalf of accused Ex.PA and Ex.PB, his written statement Ex.PW16/B and his attempt to retract from his written statement vide amendment application Ex.DC, to my mind, clearly establishes that the accused was already married to one Mamta and was also having a child from the said wedlock.
88. I also find myself unable to agree with the submissions of learned defence counsel that by virtue of the Ruling of Hon'ble Supreme Court in Priya Bala Ghosh vs. Suresh Chandra Ghosh (Supra), the said admission on the part of accused cannot be read against him.
89. A careful reading of the Judgment of Priya Bala Ghosh vs. Suresh Chandra Ghosh (Supra) would reveal that in the said case, the Hon'ble Apex Court refused the rely on an affidavit of the respondent therein on two grounds: "Firstly, that the statement in Ex.2 had not been put to the respondent when he was examined under Section 342 Cr.PC so as to give him an opportunity to explain the statements contained therein; Secondly, that even if the statement contained in Ex.2 can be taken into account by themselves they will not be proof of the fact that all the essential ceremonies necessary for a marriage have been performed."
90. Thus, the said pronouncement of the Hon'ble Supreme Court was clearly on a different footing and has no application to the facts of the present case. Moreover, the aforesaid evidence were duly put to the accused in the present case in his statement recorded under Section 313 Cr.PC.
91. Thus, to my mind, the Prosecution, by bringing on record the aforesaid evidence, has been able to establish the marriage of the accused with Mamta and has also proved that he was also having a child from the said marriage. The factum of the first marriage of accused has thus been proved despite the fact that his first wife Mamta could not be produced in the court during trial.
C) Marriage of Accused with Prosecutrix 'M' :
92. In order to prove the marriage of Prosecutrix 'M' with the accused on 28.02.2009, the Prosecution, besides relying upon the deposition of Prosecutrix and her father PW5, also emphasized upon the testimony of PW12 Praveen and PW2 Sh.Kamla Pd. Shukla.
93. PW12 deposed that he is doing the business of photography and the father of the Prosecutrix is known to him as he is residing in his neighbourhood. He further deposed that on 28.02.2009, he had taken the photographs of marriage ceremony of Prosecutrix 'M' and also done videography of the same. He had prepared two CDs and one DVD of video recording and handed over the same to the father of the Prosecutrix. He further deposed that the photographs of marriage were taken by using digital camera which he has been using regularly for his business of photography. PW12 identified the photographs Ex.PW12/A and Ex.PW12/B to be the same which he had taken at the time of marriage ceremony of the accused with the Prosecutrix 'M'. This witness also correctly identified the accused during the course of his testimony. He further identified the DVD Ex.PW12/C which was played and shown to the witness during trial and identified it to be the same which he had prepared on the basis of video recording made by him at the time of marriage ceremony of Prosecutrix 'M' with the accused. He also identified both accused and Prosecutrix 'M' appearing in the said videography DVD Ex.PW12/C.
94. PW2 Sh.Kamla Pd. Shukla deposed that on 28.02.2009, he performed the marriage ceremony of accused Deepak Dariya and Prosecutrix 'M' as per Hindu Rites.
95. I find myself unable to accept the submissions of the defence that PW2 Sh.Kamla Pd.Shukla was not qualified to perform the marriage or that his testimony cannot be accepted merely because he did not produce any documentary record regarding performance of this marriage. Further, the testimony of PW2 that if any person known to him calls him to perform marriages anywhere in Delhi, he shall go and do the same without doing any inquiry also cannot be said to be fatal to the case of the Prosecution.
96. It may be necessary to bear in mind that PW2 Sh.Kamla Pd. Shukla has only proved the performance of necessary rites and ceremonies in order to solemnize the marriage of Prosecutrix 'M' with accused. The fact that he made no inquiries regarding the previous marital status, of either of the accused or the Prosecutrix, cannot be said to have any bearing on the fact that he performed their marriage as per rites and ceremonies. There is also no reason to doubt the testimony of PW2 that he performed the marriage of Prosecutrix with the accused as per Hindu Rites and Ceremonies which fact also clearly stands established from the DVD Ex.PW12/C.
97. I also find no material on record whatsoever to accept the claim of the accused that a fake marriage ceremony had been performed with a view to show the marriage photographs to the ailing grandmother of the Prosecutrix. Suggestion to this effect given to PW19 Sh.Arun Kumar, who was colleague of the accused, has been vehemently denied by him. There is no other evidence to support the claim of the accused that a fake marriage session was organized and photograph has been taken to show to the grandmother of the Prosecutrix 'M' that the Prosecutrix is now been married.
98. I also find no force in the arguments of the defence that PW7 SI Nafe Singh did not send the photographs and the CD for any scientific examination to ascertain their genuineness as he did not get enough time to his transfer, the said evidence cannot be believed or that it should be thrown out outrightly. It may be reiterated even at the cost of repetition that the photographs and the video recording of the marriage ceremony has been duly proved by the photographer PW12, who has deposed that he has taken the photographs of the marriage ceremony of the accused with the Prosecutrix by using his digital camera which he has been using regularly for his profession of photography.
99. Thus, from the above evidence and the aforesaid discussion, I am convinced that the Prosecution has also been able to establish that the marriage of the accused was solemnized with the Prosecutrix 'M' as per Hindu Rites and Customs on 28.02.2009.
D) Joint stay of Prosecutrix with the Accused in a rented accommodation at H.No.RZH867, Gali No.13, Raj NagarII, Palam, Delhi:
100. PW9 Sh.Satbir Singh deposed that he is the owner of the aforesaid house and has let out one room on the second floor of his said house to the accused in February, 2009 at the monthly rent of Rs.2500/ and that accused lived there for about one week along with his wife namely Manju. Thereafter, accused left and the wife of the accused told him that her husband left her without informing her. A perusal of the testimony of PW9 Sh.Satbir Singh thus reveals that he has established the case of the Prosecution regarding the living of the accused and Prosecutrix 'M' in his house in the month of February, 2009. There is no reason to disbelieve this witness, he being an independent witness.
101. This testimony of PW9 duly corroborates the testimonies of Prosecutrix/PW4 as well as her father PW5, who both deposed that the Prosecutrix and the accused lived in the aforesaid rented premises as husband and wife after their marriage in February, 2009. Though, the defence has sought to point out various contradictions in the dates of the said joint stay which came up during the crossexamination of Prosecutrix/PW4 and her father/PW5, however the same cannot be said to be fatal to the case of the Prosecution. Moreover, minor discrepancies with regard to the dates of the stay of the accused with the Prosecutrix cannot, to my mind, be said to be sufficient to completely reject the testimony of the said Prosecution witnesses.
102. It is thus established from the aforesaid observations in the light of the evidence on record that though the Prosecution has not been able to establish its case that the accused created a fake ID in the Jeevansathi.com website showing his status as 'unmarried', and that the Prosecutrix contacted him after seeing the said website or that thereafter the accused married the Prosecutrix 'M', who was under the belief that the accused is unmarried, yet from the evidence led on record, the factum of marriage of Accucsed with Prosecutrix 'M' on 28.02.2009 and their staying together in a rented accommodation at Palam Colony, Delhi as husband and wife has been proved beyond reasonable doubt. It also stands proved from the evidence as discussed above that accused married the Prosecutrix 'M' despite he being already married.
103. In these facts and circumstances and in view of the observations made above, I am in agreement with the submissions of the learned defence counsel that the Prosecution has failed to prove that the Prosecutrix remained under misconception of fact that the accused is unmarried on the basis of false information provided by him in the fake profile created by him on Jeevansathi.com.
104. However, I may hasten to add that it has been duly proved on record that the Prosecutrix married the accused on 28.02.2009 as per Hindu Rites and Customs and that they lived together and cohabited as husband and wife thereafter. It is thus proved beyond doubt, that the accused established physical relations with the Prosecutrix knowing that he is already married and the Prosecutrix gave her consent for cohabiting with the accused believing him to her lawful husband, which he was not, his marriage with Prosecutrix 'M' being an invalid marriage.
105. In other words, in view of the fact that it stands proved that the accused was already married to one Mamta, his marriage with the Prosecutrix 'M' on 28.02.2009 was not a valid marriage. The Prosecutrix thus obviously gave her consent for establishing physical relations with the accused believing that he is her lawfully wedded husband and the accused also acting on her such invalid consent established physical relations with her knowing fully well that he was already married and this socalled marriage with her, was not a valid marriage. The consent of the Prosecutrix, in these circumstances, can certainly not said to be a valid consent within the meaning of Section 90 IPC. Consequently, the accused in these circumstances, is liable to be convicted for committing rape upon Prosecutrix 'M' punishable under Section 376 IPC.
106. Besides the charges for offence under Section 376 IPC, the above named accused has also been facing trial for the offence under Sections 495/406/417/471 IPC.
107. With regard to the charge under Section 495 IPC, it is apparent that since the person aggrieved i.e. Mamta did not make complaint against the accused nor deposed before the court during the entire length of trial, the accused cannot be convicted for the said offence.
108. Insofar as the offence for charges under Section 406 IPC is concerned, I find myself in agreement with the submissions of the defence that in absence of any documentary proof with regard to the receipts/bills of the jewellary articles allegedly given to the accused at the time of marriage and in absence of any specific proof of handing over of the jewellary articles and cash to the accused, charge under Section 406 IPC also cannot be proved beyond reasonable doubt and the accused cannot be convicted for the same.
109. As aforesaid, the accused has also been charged under Section 417 IPC for having fraudulently induced Bharti Airtel Limited to issue a mobile phone number to him by filing the Airtel prepaid enrollment form for obtaining the mobile phone number from Bharti Airtel Limited and produced the fake driving licence number 7479RDTOH dated 17.12.2000 allegedly issued from Hissar, Haryana as his proof of identity and thereby obtained the connection of phone Nos. 9910735201 and 9650563771 by using the said fake driving licence. He has also been facing trial for offence under Section 471 IPC for having used the said fake driving licence.
110. After going through the evidence in its entirety, I am of the considered opinion that the charges for the offence under Sections 417 & 471 IPC also do not proved against the accused as the Prosecution failed to produce the original driving licence during the course of trial. The only evidence brought on record is by way of deposition of PW17 Hawa Singh, who deposed that no such driving licence bearing No. R7479 DTOH dated 17.12.2000 was issued from the Regional Transport Authority, Hisar, Haryana.
111. There is nothing on record to establish that it is the accused who got issued the said fake driving licence. There is also no evidence to prove that he used the said driving licence as identity proof while applying for two mobile connections from Bharti Airtel Limited in view of FSL report Ex.PW18/A. It is noteworthy that as per the said report from FSL, it has been opined that it is not possible to express any definite opinion with regard to the questioned signatures on Q1 to Q3 and Q5 to Q8. (i.e. questioned signatures on the Airtel Prepaid Enrolment Form Ex.PW13/G) and the questioned signatures Q6 to Q8 (i.e. questioned signatures of accused on Airtel Prepaid Enrolment Form Ex.PW13/F) in comparison with the sample signatures of accused on documents S1 to S5.
112. Thus, since the prosecution failed to lead any evidence to prove that the said Customer Application Form Ex.PW13/F & Ex.PW13/G were signed by the accused, it cannot be said that the accused obtained the aforesaid mobile connections on the basis of documents annexed therewith including the copy of forged driving licence allegedly issued from Transport Authority, Hisar, Haryana. Accordingly, in the light of the above discussion the accused is entitled to be acquitted on these sections also and cannot be convicted for having committed offence under Sections 417/471 IPC.
113. Consequently, considering the evidence on record and in the light of aforesaid observations accused Anil Dariya @ Deepak Dariya S/o Sh.Kishore Singh is hereby found guilty for the offence punishable under Section 376 IPC, whereas he has been acquitted for the rest of the offences under Sections 495/406/417/471 IPC with which he was charged. Let him be heard on the point of sentence.
Announced in the Open Court on 24th November, 2014 (Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 45/2010
Unique ID No. : 02401R0584712010
State versus Anil Dariya @ Deepak Dariya
S/o Sh. Kishore Singh Dariya
R/o Plot No.1, Sanik Mohalla,
Bijwasan, Delhi.
Case arising out of:
FIR No. : 94/2010
Police Station : Patel Nagar
Under Section : 417/406/376/495 IPC
Judgment pronounced on : 24.11.2014
ORDER ON SENTENCE
1. The above named Accused has been convicted for the offence under Section 376 IPC vide judgment dated 24.11.2014.
2. I have heard the submissions of learned defence counsel as well as learned Addl. PP for the State.
3. It is submitted by learned defence counsel that the convict is the sole bread earner of his family and has no previous criminal record. It is prayed that the convict may thus be awarded lesser sentence than minimum prescribed under the Statute.
4. On the other hand, Prosecution pressed for maximum sentence. It is submitted by learned Addl. PP that the convict is habitual of creating fake profiles to rope in innocent women like the victim.
5. Having considered the facts and circumstances of the case, I find that no adequate or special reasons have been shown in order to exercise any discretion in favour of the convict.
6. Thus keeping in view the totality of the facts and circumstances of the case, I am of the view that interest of justice would be met if accused Anil Dariya @ Deepak Dariya S/o Sh.Kishore Singh is sentenced to undergo Rigorous Imprisonment for 07 years for the offence punishable under Section 376 IPC, in addition to payment of fine of Rs.10000/, in default whereof, he shall undergo Simple Imprisonment for 02 years. He is thus sentenced accordingly.
6. Needless to add that the convict shall also be entitled to the benefit of Section 428 Cr.PC. It is also directed that the amount of fine deposited by the convict shall be paid towards compensation to the victim.
7. I also recommend payment of adequate compensation to the victim in the present case as per provisions of Section 357A CrPC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A CrPC. Accordingly, it is directed that copy of this judgment and order be sent to Secretary DLSA, Central District for necessary action.
8. Copy of this judgment and order of sentence be also supplied to above named convict free of cost.
9. File be consigned to Record Room.
Announced in the Open Court on 26th November, 2014 (Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.