Delhi District Court
State vs Murgesh -:: Page 1 Of 53 ::- on 5 June, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012.
State versus
Mr.Murgesh
Son of Mr. Tangvail
Resident of E-547, J J Colony, Khayala,
New Delhi.
First Information Report Number : 143/11
Police Station Khyala,
Under sections 379, 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 07.02.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 28.05.2012.
In the Sessions Court
Date of transfer of the file to this Court : 14.02.2013
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 05.06.2013.
Date of judgment : 05.06.2013.
Appearances: Mr.Neelam Narang, Additional Public Prosecutor for the
State.
Accused has been produced from JC.
Mr.Yashpal Jolly, counsel for accused.
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Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012
FIR No. 143/11, Police Station Khyala,
Under sections 379 and 376 of the Indian Penal Code.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Kidnapping and rape are dark realities in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. (Reliance on the material on the internet). Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the accused is known to the victim, as in the present case being her neighbour, who is allegedly subjected to unwanted physical contact by a perverted male.
2. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
3. Mr. Murgesh, the accused has been charge sheeted by Police Station Khayala, Delhi for the offence under sections 376/379 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that about two and half months prior to 02.06.2011 at the house of his friend in D- Block, Khayala, he had committed raped the married lady/ complainant/prosecutrix (name withheld to protect her identity) and after few days of committing rape upon prosecutrix, he theft mobile phone, one ticket and cash of Rs.2000/- from the possession of prosecutrix on the way at Gundur station while taking her to his village Ambapaliyam in Tamilnadu.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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07.02.2012 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 28.05.2012 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 14.02.2013 vide circular number 20/372-512/F.3.(4)/ASJ/01/2013 Dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
5. After hearing arguments, charge for offence under sections 376/379 IPC was framed against the accused Mr. Murgesh by the learned predecessor on 03.07.2012.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 12 witnesses i.e. PW1-Dr. Jyoti Shukla, who had medically examined the accused ; PW2-Dr. Ramesh Khandelwal, who had also medically examined the accused; PW3-Dr. Ritu Aggarwal, under her supervision the prosecutrix was medically examined; PW4-prosecutrix; PW5-Ms. Ammassi, grand mother of prosecutrix; PW6-HC Banwari Lal, witness of investigation; PW7-ASI Rajender Singh, first investigation officer of the case; PW8-Ms. Laxmi, mother of prosecutrix; PW9-Dr. Deepshikha, who had medically examined the prosecutrix; PW10-SI Bimla Devi, the second investigation officer of the present case; PW11-Ct. Sita Ram, witness of investigation and PW12-Dr. Deepti, who prepared the discharge summary of prosecutrix.
Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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STATEMENT OF THE ACCUSED MURGESH UNDER SECTION 313 OF THE CR.P.C.
7. In his statement under section 313 of the Cr.P.C., the accused, Mr.Murgesh has controverted and rebutted the entire evidence against him submitting that he is innocent and he has been falsely implicated in this case. The prosecutrix with her consent and willingness made the physical relations with him as she is keenly interested to give birth a baby. The accused has admitted the paternity of Master Shivam, son of the prosecutrix, and that he is the biological father of the child. Accused preferred not want to lead defence evidence.
ARGUMENTS
8. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
9. The Additional Public Prosecutor for the State has requested for convicting the accused Mr.Murgesh for having committed the offence under sections 376 and 379 of the IPC and submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
10. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The evidence of the prosecutrix is not reliable as it is full of contradictions and inconsistencies.
Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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CASE OF THE PROSECUTION, ALLEGATIONS AND
DOCUMENTS
11. The allegations against the accused are that about two and half months prior to 02.06.2011 at the house of his friend in D-Block, Khayala, he raped the prosecutrix and after few days of committing rape he theft of mobile phone, one ticket and cash of Rs.2000/- from the possession of prosecutrix on the way at Gundur Station while he was taking her to his village Ambapaliyam in Tamilnadu. The prosecutrix was married with one Mr.Deepu and was separated from him when the accused had befriended her and told her that he will marry her. After two and half months, he had established physical relations with her assuring her of marriage and continued to have physical relations with her later on. On 11.05.2011, he took the prosecutrix by train from Delhi to Madras and when the train reached at Guntur Station, Chennai, while the prosecturix was sleeping, he disappeared from the train stealing her mobile phone, one ticket and cash of Rs.2000/-. Prosecutrix de-boarded the train at Guntur Station, Chennai and one policeman gave her Rs.100/- and got boarded her in a train and she reached Delhi. Prosecutrix made a telephonic call at his residence and his mother told that he was already married and will not marry with her. She also threatened the prosecutrix that she will defame her. The prosecutrix was about 2-2 ½ months pregnant with his child. She later gave birth to a male child on 17.12.2011.
12. On 03.06.2011, the complaint (Ex.PW4/A) made by the prosecutrix was marked to ASI Rajender Singh (PW7). He along with Ct.Manish (not examined) went to Tamil Nadu for searching the accused Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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but they could not find him. After taking opinion from the prosecution department and with the approval of Addl. DCP, West, the complaint was handed over to SHO for registration of FIR. On 08.07.2011, the FIR (not proved) was lodged by Duty Officer ASI Bal Krishan (neither cited nor produced nor examined). After registration of FIR, the investigation was assigned to SI Bimla Devi (PW10). On 09.07.2011, the prosecutrix was taken to DDU hospital for medical examination, where she was medically examined by Dr. Deepshikha (PW9) under the supervision of Dr. Ritu Aggarwal (PW3) and vide MLC report (Ex.PW3/A) and referred to Gynae Department where she was examined by Dr.Deepti (PW12) who prepared the discharge summary sheet (Ex.PW12/A). She also deposed on behalf of Dr.Varuni, who examined the patient in Gynae Department vide MLC (already exhibited as Ex.PW3/A). Prosecutrix was admitted in the hospital on that day and discharged on 11.07.2011. On 01.08.2011, IO SI Bimla Devi obtained NBW against the accused, but the same could not executed as he was found absconding. IO again obtained NBW from the Court but he was not found. On 04.08.2011, the process under section 82 Cr.P.C against the accused was obtained. On 11.11.2011, the accused surrendered before the Court and with the permission of Court, IO SI Bimla Devi along with Ct. Sita Ram (PW11) interrogated and arrested him vide arrest memo (Ex.PW10/A) and his personal search was conducted vide personal search memo (Ex.PW10/B). Disclosure statement (Ex.PW10/C) of accused was also recorded. On 11.11.2011, the accused was taken on one day's police remand and IO took him to H.No.604, IIIrd Floor, T.C.Camp, Raghubir Nagar, where he stayed with the prosecutrix for about two days. HC Banwari Lal (PW6) also joined the investigation Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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with the IO. On the pointing out of the accused, IO prepared pointing out memo (Ex.PW6/A). On 11.11.2011, the accused was taken to Guru Govind Singh hospital where he was medically examined by Dr. Ramesh Khandelwal (PW2) vide MLC (Ex.PW2/A). After his medical examination, doctor did not collect any exhibit pertaining to him. Thereafter, on 12.11.2011, the accused was again medically examined by Dr. Jyoti Shukla (PW1) vide MLC (Ex.PW1/A). On 30.04.2013, the accused admitted the paternity of the minor son of the prosecutrix namely Master Shivam and that he was his biological father.
TESTIMONIES OF THE PROSECUTION WITNESSES
13. It is necessary to elaborate and discuss the testimonies of the witnesses of the prosecution.
Most Material Witness-Prosecutrix
14. PW4, the prosecutrix and she deposed that her date of birth is 09.08.1987. She got married with Deepu on 21.08.2006. She lived with her husband Mr. Deepu for about 6 months after marriage and thereafter they got separated as he used to beat and torture her a lot. The sisters of accused namely Ms. Vijaya and Ms. Anu introduced the accused Murgesh to the prosecutrix as they used to reside in the same locality. She met accused Murgesh first time after about 2 ½ months from the date of separation from her husband at bus stop of route no.830. Accused told her that he will marry her. Thereafter, they started meeting each other at different places. She also used to talk with the accused on his mobile phone. Her mobile phone number at the time of incident was 9540891685 and the Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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mobile phone number of accused was 9990402710. Accused asked her to marry. After about 2 ½ months of their meeting, the accused established physical relations with her assuring her of marriage due to which she gave her consent. He also told her that even after marriage they have to do the same thing so they could do it even now. Accused established physical relations with her 2-3 times. Accused took her to his village on 11.05.2011. They boarded a train from Delhi to Madras. When train reached Guntur Station, Chennai and she was sleeping, the accused disappeared from the train. She de-boarded the train at Guntur Station, Chennai and sought help from police man. The police official gave her Rs. 100/- and got boarded her in a ladies compartment of the train coming towards Delhi. She reached Delhi and made telephonic call to her residence as well as at the residence of accused. The mother of accused Murgesh told her that she is already married and Murgesh will not marry with her. The mother of accused threatened her that she will defame her. Thereafter, she returned back to her house and lodged a report with the police against accused. She has identified the accused through the screen. She was pregnant of about 2 ½ months from the accused when he left her. Her complaint (Ex.PW4/A) to the police runs into 3 pages. Police took her to DDU Hospital for medical examination. Doctor took samples at the time of her medical examination. Accused surrendered before the Court. She did not appear when accused surrendered in the Court. She gave birth to a male child on 17.12.2011. Accused refused to undergo his DNA Test to know about the paternity of child.
15. As she was hostile to the prosecution case and had resiled from Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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her earlier statement, the Additional Public Prosecutor has cross examined her. She was questioned about her complaint and she reitereated about the same.
16. She has been cross examination at length on behalf of the accused.
Public Witnesses
17. PW2, Ms. Ammassi, has deposed that the prosecutrix is her grand daughter, who was married with a boy namely Mr. Deepu about 7 years ago. The marriage took place in a temple. Prosecutrix was pregnant of about one month from Mr. Deepu and thereafter miscarriage took place. Mr. Deepu was a criminal and he got suspicion upon the character of the prosecutrix and also used to beat her. He is presently lodged in custody but she is not aware about the nature of the case against him. The accused, Mr.Murgesh, who is present in the Court today (witness has correctly identified the accused) used to meet prosecutrix frequently and thereafter both started living together and they left her house. The mother of accused Mr.Murgesh once quarreled at their house and also abused them. She objected to the prosecutrix meeting the accused. She advised prosecutrix not to meet accused Murgesh but she did not obey and used to meet him. Prosecutrix left the house with the accused and did not return for some days. This happened about one and a half years ago. They came to know that prosecutrix had left the house and started living with accused Murgesh and this fact come to their knowledge when mother of Mr.Murgesh informed them. After about 5-6 days, the prosecutrix returned to the house. Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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When she make enquiry from the prosecutrix, she told her that she had left the house and gone away with accused. She also told her that the accused established physical relationship with her forcibly and assured her of marriage. Accused was taking the prosecutrix by train to Madras but on the way he disappeared. When she started weeping, some one got boarded her a train coming towards Delhi. She brought her back from New Delhi Railway Station as she was not having money to come to the house in a TSR.
In her cross examination, she has deposed that she did not remember the date, month and year when the prosecutrix got married with Deepu. The marriage was a love marriage. Murgesh used to make telephone calls to prosecutrix to which her husband Deepu used to beat her on this. Deepu did not ask from Murgesh why he used to make calls to prosecutrix. She did not know when Deepu went to jail. She used to live with her in laws (Deepu's father). She has denied that the prosecutrix went to meet Deepu in jail. She has admitted that mother of Murgesh had come to her residence took fight with them since her grand daughter was talking to Murgesh on phone. She came to know that prosecutrix had left their home after about 3 days since she was under the impression that she was away to work. The parents and family members of accused informed her that the prosecutrix had gone with accused Murgesh. They did not lodge any complaint about her grand daughter being missing from home since they were aware that she had gone with Murgesh. She cannot say whether or not the relationship between the prosecutrix and Mr.Murgesh were forced or voluntary. When the prosecutrix did not meet the accused, he used to threaten her that he shall slit his wrist with a blade. The police did Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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not record her statement. She has denied that she is deposing falsely except for the deposition that the police did not record her statement.
18. PW8, Ms.Laxmi, has deposed that her step daughter/ the prosecutrix got married with one Mr. Deepu about 5-6 years ago. There used to be quarrel between both of them. Prosecutrix got pregnant and when she was having three months pregnancy, she had miscarriage. Prosecutrix stayed with Mr. Deepu for about 5-6 months. On account of quarrel with Mr. Deepu, the prosecutrix came back to the house of her grand mother and started staying there. One day, parents of accused Murgesh along with their daughter came to the shop of her mother in law(grand mother of prosecutrix) at ground floor and started quarrelling with her. She was staying on the first floor of the same premises. She heard noise and came down stairs. Parents of accused Murgesh were saying that prosecutrix was in love with accused Murgesh. Since she was the step mother of prosecutrix, she kept quite and did not utter a single word. After some time parents of accused Murgesh along with their daughter left. One day accused Murgesh came to her residence and threw his mobile phone inside the house, which hit the door of her house and went away leaving the mobile phone there. Next day, he returned and on his asking for the phone, she gave it to him. Thereafter, prosecutrix along with her grand mother went to the native village at Tamil Nadu. She stayed there for about a month and thereafter came back to Delhi. One day mother of accused Murgesh came to their house and asked them to make the prosecutrix understand that she should not meet accused Murgesh. She and her husband gave beatings to prosecutrix. One day accused Murgesh Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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visited their residence and started shouting the name of the prosecutrix who was in the house at that time along with her grand mother. When she did not come out of the house, accused Murgesh attacked himself with blade. One other boy caught hold of accused Murgesh and took him away from there. After about a month, she was present at her shop at ground floor, her husband gave beatings to prosecutrix in the house at the first floor. She heard noise and went upstairs and asked the prosecutrix as to why she was harassing her father. On which the prosecutrix replied that she is her step mother and she should keep quiet. After about one week of this, the prosecutrix went to her work (she was working as part time maid in kothi) and did not return till evening. She telephoned her on her mobile phone which was picked up by accused Murgesh. She asked him where was the prosecutrix on which he replied that Murgesh was speaking. He said that the prosecutrix was in bath room. She told Murgesh that she was mother of the prosecutrix but he switched off the phone. Thereafter, she told her mother in law that the prosecutrix and Mr. Murgesh both had gone somewhere together. After about one week of this, prosecutrix telephoned her mother in law from Tamil Nadu saying that accused Murgesh had left her while she was sleeping. At that time prosecutrix was crying and said that she was calling from station at Tamil Nadu. Thereafter, her mother in law had a talk with some police official on phone requesting him to make prosecutrix sit in some vehicle for Delhi. After three days of this, the prosecutrix reached Delhi to their residence.
In her cross examination, PW8 has deposed that she got married about 12 years ago. Mother of Mr. Deepu was a Madrasi and Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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father was a Bengali. It was love marriage between Mr. Deepu and the prosecutrix. She has denied that Mr. Deepu used to help her husband financially. At present Mr. Deepu is in jail. She did not know the date, month and year when Mr. Deepu went to jail. When Mr.Deepu sent to jail, prosecutrix was present in her house with her grand mother at that time. She did not know whether prosecutrix used to visit Mr.Deepu in jail. She has admitted that till date the prosecutrix and Mr. Deepu have not taken a divorce. She has denied that a boy used to visit their house to meet the prosecutrix. The police did not make any enquiry from her nor her statement was recorded. She did not know whether or not police made any enquiry from prosecutrix after her return from Tamil Nadu. She has admitted that after her husband beaten prosecutrix, she had run away from home. It was after about one week. She has admitted that due to this reason she and her husband had severed their relationship with prosecutrix. She did not talk to her after her return from Tamil Nadu. She has denied that she is deposing falsely.
Police Witnesses-Formal
19. PW6, HC Banwari Lal had accompanied the IO and gone to H. No.604, 12 ½ sq yards, T.C.Camp, Raghubir Nagar, Third Floor, Delhi. He had proved the pointing out memo (Ex.PW6/A) of the place, where the accused remained with prosecutrix for about 6 months and and made physical relationship.
20. PW-7, ASI Rajender Singh has deposed that on 03.06.2011 the complaint was marked to him for enquiry. He along with Ct. Manish Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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Kumar went to Tamil Nadu, Distt Salem in the search of accused but accused Murgesh could not be found out at his native place. He also made investigation at Chennai Railway Station from police official as prosecutrix in her statement to the police deposed that she boarded the train from there after getting help from the police but no police official met him regarding this aforesaid facts. He never seen the accused so he could not identify him.
21. PW-11, Ct. Sita Ram has deposed that on 11.11.2011 he along with SI Bimla had come to Tis Hazari Courts, where accused Murgesh had surrendered in the Court. IO SI Bimla obtained the permission for interrogation of the accused and arrested him vide arrest memo (Ex.PW10/A) and prepared his personal search memo (Ex.PW10/B) and disclosure statement (Ex.PW10/C). One day's police custody remand of accused was obtained and he was brought to PS. Police Witnesses-Material
22. PW10, SI Bimla Devi, is the Investigation Officer. She has deposed that on 08.07.2011, she was assigned the investigation of the present case after registration of FIR. On 09.07.2011, the prosecutrix was taken to DDU hospital for medical examination. Prosecutrix was admitted in the hospital on that day and was discharged on 11.07.2011. She made efforts to search the accused but he could not be trace out. On 01.08.2011, she obtained NBW against the accused but same could not executed as he was found absconding. She again obtained his NBW from the Court but the accused could not be found. On 04.08.2011, process under section 82 Sessions Case Number : 85 of 2013.
Unique Case ID Number : 02401R0664112012 FIR No. 143/11, Police Station Khyala, Under sections 379 and 376 of the Indian Penal Code.
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Cr.P.C against the accused were obtained. On 11.11.2011, the accused surrendered himself before the Court. With the permission of Court, she had interrogated and arrested the accused vide arrest memo Ex.PW10/A and his personal search was taken vide personal search memo Ex.PW10/B. The disclosure statement of the accused was recorded, which is Ex.PW10/C. On 11.11.2011, the accused was taken on one day's police remand. Accused took them to H. No.604, IIIrd Floor, T.C.Camp, Raghubir Nagar where he pointed out a home stating that he had stayed there with the prosecutrix for about two days. HC Banwari had also joined the investigation on that day. She had prepared the pointing out memo (Ex.PW6/A). Accused was sent to hospital for his medical examination and on the next day accused was produced in the Court and sent to judicial custody. She has correctly identified the accused. She recorded the statement of PWs. After the completion of the investigation and the formalities, the charge sheet was put to the Court for trial.
Medical Evidence
23. PW1, Dr. Jyoti Shukla, has deposed that on 12.11.2011 , she had medically examined patient Murgesh vide MLC (Ex. PW1/A).
24. PW2, Dr. Ramesh Khandelwal, has deposed that on 11.11.2011, he had medically examined patient Murgesh vide MLC (Ex. PW2/A).
25. PW3, Dr. Ritu Aggarwal, has deposed that on 09.07.2012, the prosecutrix was medically examined by Dr. Deepshikha under her Sessions Case Number : 85 of 2013.
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supervision vide MLC (Ex.PW3/A).
26. PW12, Dr. Deepti, has deposed that she had medically examined the prosecutrix and prepared discharge sheet CR No.27238 (Ex.PW12/A). Prosecutrix remained admitted in the hospital w.e.f 09.07.2011 to 11.07.2011. She also identify the signature of Dr. Varuni, who examined the prrosecutrix and prepared the MLC (Ex.PW3/A).
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
27. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, Sessions Case Number : 85 of 2013.
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depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
28. Under this sphere, I now proceed to test the submissions of both the sides.
IDENTITY OF THE ACCUSED
29. There is no dispute regarding the identity of the accused Mr.Murgesh who has been identified by the prosecutrix. He is also named in the complaint and the FIR.
AGE OF THE PROSECUTRIX
30. There is no dispute regarding the age of the prosecutrix that she was a major on the date of the alleged offence. She has herself stated in her evidence that she is 24 years old which indicates that about two years earlier when the alleged offence was committed she was aged 22 years.
31. Therefore, it is clear that the prosecutrix was a major on the Sessions Case Number : 85 of 2013.
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date of the alleged offence.
VIRILITY OF THE ACCUSED
32. The accused has been medically examined by Dr.Jyoti Shukla (PW1) vide MLC (Ex.PW1/A) wherein it is opined that "No medical abnormality detected".
33. The accused has been medically examined by Dr.Ramesh Khandelwal (PW2) vide MLC (Ex.PW1/A) wherein it is opined that "No clinical evidence suggestive of that person cannot perform sexual intercourse".
34. Both the PWs 1 and 2 have not been cross examined by the accused nor the defence of the accused is that he is impotent.
35. These report indicate that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX
36. The MLC of the prosecutrix (Ex.PW3/A) and the CR No. 27238 (Ex.PW12/A) show that there is no mention of rape or sexual assault upon the prosecutrix. In Ex.PW3/A, the history is mentioned as "Amenorrhoea 4 months. Accord to pt. She has conceived with her will by her boyfriend. She was married 5 yrs back. Separated after 6 months. Presently husband is in jail since 5 yrs." There is no fresh external injury visible on the body on physical examination.
Sessions Case Number : 85 of 2013.
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37. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC-Ex.PW3/A), the probability is that rape is not committed.
38. These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor.
39. Therefore, it is clear that there is nothing incriminating against the accused in the medical evidence produced by the prosecution.
DELAY IN FIR
40. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration. It is claimed by the accused that as the FIR has been lodged on 08.07.2011 at 23:25 hours while the allegations made by the prosecutrix are that about 2-2 ½ months prior to her lodging the complaint (Ex.PW4/A) that the accused had physical relations with her on the pretext Sessions Case Number : 85 of 2013.
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of marriage and thereafter continued to have physical relationship with her. The delay in lodging of the FIR has been not explained by the prosecution.
41. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the fear of the accused.
42. As per the complaint, Ex.PW4/A which is made on 02.06.2011, it is mentioned that the date and time of the first offence is 2-2 ½/ months earlier. This would mean that the physical relation between the accused and the prosecutrix for the first time happened in April, 2011.
43. The prosecutrix in her MLC (Ex.PW3/A) has not mentioned the date and duration of the offence.
44. The prosecutrix in her evidence before the Court recorded on 07.03.2013 has mentioned that she got married with Deepu on 21.08.2006 and was separated after 6 months. She met accused Murgesh first time after about 2 ½ months from the date of separation from her husband. After about 2 ½ months of their meeting, the accused established physical relations with her assuring her of marriage due to which she gave her consent. This part of her deposition indicates that she had physical relations with the accused for the first time in August, 2006.
45. The FIR has admittedly been lodged on 08.07.2011 at 23:25 Sessions Case Number : 85 of 2013.
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hours.
46. If April, 2011 is taken as the date the accused established physical relations with the prosecutrix for the first time as per Ex.PW4/A, the same shows that there is a delay of three months in lodging the FIR.
47. If the alleged offence, as per the evidence of the prosecutrix is taken, it was committed in August, 2006. Then there is a delay of five years in lodging of the FIR.
48. Now regarding her going by train with the accused to Madras, as per evidence it was on 11.05.2011 and then she had stated that it was on 11/12.05.2011 and that she returned on the same day. The date is not mentioned in the complaint Ex.PW4/A. This would imply that there is a delay of about two months in lodging of the FIR.
49. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses Sessions Case Number : 85 of 2013.
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present at the scene of occurrence.
50. Before coming to the merits of the present case, an argument has been raised by the counsel for the accused regarding the delay in registration of the FIR. In this regard, I may observe that it is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
51. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
52. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is Sessions Case Number : 85 of 2013.
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satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
53. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
54. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
55. The Hon'ble High Court of Madhya Pradesh in the judgment Sessions Case Number : 85 of 2013.
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reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
56. I find on perusal of the record that indeed the criminal action was swung into motion on 08.07.2011 while there is delay of many months. The prosecutrix has deposed in her evidence that out of fear of the accused and as she was searching for him, she did not report the matter earlier. However, it is also clear that after the alleged incident, she went to her work and was meeting others. Even then, she preferred not to make any complaint of rape against the accused. No explanation is coming forth from the prosecution as to why she did not tell her employer about the rape, her family, friends and others with whom she was in contact. She was not under the control of the accused during this period and could have easily disclosed about the incident if she wanted to. It also cannot be ignored that the prosecution has neither furnished any justified reason for the delay nor produced nor examined any witness to substantiate the stand of the prosecutrix in respect of the delay of about five years to two months (as per the evidence and PW4/A) in lodging the case against the accused. After her return from Guntur on 11/12.05.2011 till 02.06.2011 (date of Sessions Case Number : 85 of 2013.
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filing Ex.PW4/A) no justified or logical reason is assigned for the delay in making the complaint to the police and lodging of FIR on 08.07.2011.
57. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
58. Therefore, it can be said that the FIR was lodged after a delay of about five years to two months which is fatal to the prosecution story. The delay has not been satisfactorily explained.
FIR NOT PROVED
59. The prosecution has failed to produce and examine the Duty Officer who had recorded the formal FIR of the case due to which the same remains unproved. He has also not been cited as a witness in the list of witnesses of the prosecution nor any request was made on behalf of the prosecution to summon and examine him to prove the FIR.
60. The First Information Report on the basis of which the prosecution story has been set into motion has not been proved as the Duty Officer has not been examined. This fact in itself is sufficient for vitiating the trial.
61. The First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence produced at trial. The importance of the First Information Report can hardly be overestimated from the point of view of the accused. Sessions Case Number : 85 of 2013.
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62. The object of insisting of the prompt lodging of the report to the police in respect of commission of an offence is to obtain early information about the circumstances in which the crime is committed, the names of the actual culprits, the parts played by them as well as the names of the eye witnesses present at the scene of crime.
63. This is a major blow to the prosecution case as the most basic document of the prosecution has not been proved.
SECTIONS 376 AND 379 OF THE IPC
64. In the present case, the charge sheet was filed under sections 376/506 of the IPC and the charge for offence under sections 376/506 the IPC was framed against the accused
65. It is necessary to understand the relevant sections before considering whether or not the offence is proved to have been committed by the accused.
66. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be Sessions Case Number : 85 of 2013.
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lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
67. Section 379 of the IPC is elaborated herein under as follows:
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
68. It is a case of heinous crime of rape, which caries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
69. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness. For these reasons, Sessions Case Number : 85 of 2013.
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therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved.
70. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
71. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW4, the prosecutrix, as she has taken different stands in her different statements. She has also made contradictions in her own evidence at different points.
72. In the Court, during trial, the prosecutrix, as PW4, Sessions Case Number : 85 of 2013.
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has deposed her date of birth is 09.08.1987. She got married with Deepu on 21.08.2006. She lived with her husband Mr. Deepu for about 6 months after marriage and thereafter they got separated as he used to beat and torture her a lot. The sisters of accused namely Ms. Vijaya and Ms. Anu introduced the accused Murgesh to the prosecutrix as they used to reside in the same locality. She met accused Murgesh first time after about 2 ½ months from the date of separation from her husband at bus stop of route no.830. Accused told her that he will marry her. Thereafter, they started meeting each other at different places. She also used to talk with the accused on his mobile phone. Her mobile phone number at the time of incident was 9540891685 and the mobile phone number of accused was 9990402710. Accused asked her to marry. After about 2 ½ months of their meeting, the accused established physical relations with her assuring her of marriage due to which she gave her consent. He also told her that even after marriage they have to do the same thing so they could do it even now. Accused established physical relations with her 2-3 times. Accused took her to his village on 11.05.2011. They boarded a train from Delhi to Madras. When train reached Guntur Station, Chennai and she was sleeping, the accused disappeared from the train. She de-boarded the train at Guntur Station, Chennai and sought help from police man. The police official gave her Rs.100/- and got boarded her in a ladies compartment of the train coming towards Delhi. She reached Delhi and made telephonic call to her residence as well as at the residence of accused. The mother of accused Murgesh told her that she is already married and Murgesh will not marry with her. The mother of accused threatened her that she will defame her. Thereafter, she returned back to her house and lodged a report with the Sessions Case Number : 85 of 2013.
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police against accused. She has identified the accused through the screen. She was pregnant of about 2 ½ months from the accused when he left her. Her complaint (Ex.PW4/A) to the police runs into 3 pages. Police took her to DDU Hospital for medical examination. Doctor took samples at the time of her medical examination. Accused surrendered before the Court. She did not appear when accused surrendered in the Court. She gave birth to a male child on 17.12.2011. Accused refused to undergo his DNA Test to know about the paternity of child.
73. As she was hostile to the prosecution case and had resiled from her earlier statement, the Additional Public Prosecutor has cross examined her.
74. In her cross examination by accused, she has deposed that both of her statements recorded on 07.03.2013 were correct. She was married with Mr. Deepu on 21.08.2006. She has admitted that she has informed the police regarding the date of her marriage with Mr.Deepu. She has admitted that even today her marriage with Mr. Deepu subsists as they have not taken a divorce. She is not in touch with him for the last 5 years. Mr. Deepu had gone to jail in the year 2008 but she did not remember the date and month. He is still in jail. She stayed with Mr.Deepu after marriage for about 6 months. She did not remember the date when she had left his house. When Mr. Deepu was sent to jail, she was already living in her parental home. She did not know about the nature of case against Mr. Deepu. She has denied that she had gone several times to the jail to meet Mr. Deepu. She has denied that even after Mr. Deepu was sent to jail, she Sessions Case Number : 85 of 2013.
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continued to live in her matrimonial home with her in-laws. Parents of Mr. Deepu had turned her out of the house and at that time he was not in jail. She did not make any complaint against Mr. Deepu and his family for turning her out of the matrimonial house. She has denied that even today she is living with her in laws and moved about with them. She knew accused Murgesh for the last about 2 years. She had told him about her marriage with Mr.Deepu and that she had not taken divorce from him. She had met accused Murgesh for the first time in my colony. She did not know the age of accused Murgesh. She has denied that he was aged about 17 years at that time. She had come to stay with her parents after Mr. Deepu was sent to jail. Her parents had objected to her meeting accused Murgesh. She has admitted that parents of accused had come to her parental home and fought with her family regarding her being stopped from meeting the accused. She has denied that she knows a man called Mr. Vijay. She has admitted that accused had a friend whose name was Mr. Vijay. She has denied that Mr. Vijay was her friend and not a friend of accused. She has admitted that she had gone to the house of Mr. Vijay with the accused with her free consent. She had used a pregnancy kit at home to verify about her pregnancy after about one and a half months. Her family was not aware about pregnancy as she had told about it to the accused only on the day of test. She did not have any physical relationship with anyone except for the accused. She has denied that she had physical relations with Vijay. She had gone with the accused to Guntur on 11-12/05/2011. She did not remember the name of the train. They had not taken any reservation. At that time, she was working as a maid in the flats at Subhash Nagar. She had not told her mother or anyone else when she had gone with the accused Sessions Case Number : 85 of 2013.
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to Guntur. She had never run away prior to her marriage nor left with anyone. Her parents had not made any complaint to the police when she had gone with the accused to Guntur. They had telephoned her on her mobile phone. She had not told this fact to the police. She came to know that the accused has committed theft of her purse, mobile phone, cash of Rs. 2000/- and railway ticket at Guntur Railway Station. She did not lodge any complaint at Guntur Railway Station about the theft, although she had told about the theft to a police man who was on duty at the railway station. She did not wait for the accused at the Guntur Railway Station. She had tried to contact the accused on his mobile but it was switched off. She had told this fact to the police. She has denied that she had never gone with the accused to Guntur. She returned from Guntur on the same day. She had gone to her parents on her return. She narrated the entire incident to her parents. After two days of the incident, she had made a complaint to the police. She did not remember the exact date of the complaint. She has denied that she did not lodge any complaint after two days of the incident. She had told her parents that she was pregnant. They did not go to a doctor. She did not know whether or not her in laws were aware about her running away with the accused. She has denied that after the incident her parents in law had come to her residence to take her to the matrimonial home. She had made two complaints against the accused. She cannot tell the date when she made complaints in the PS against the accused. She has admitted that she had gone with the accused to Guntur with her free consent. She had not lodged any complaint against the accused at Guntur with her own consent. She had physical relations with the accused voluntarily and with her free consent. She had not tried to obtain divorce Sessions Case Number : 85 of 2013.
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from her husband Mr. Deepu. She has admitted that she is fully aware that she cannot marry the accused or anyone till her marriage with Mr. Deepu subsists. She did not remember when the case was registered. She did not remember the date of her medical examination. She has admitted that she had lodged the complaint only when the accused had refused to marry her. She has admitted that she had told the doctor that she wanted to continue her pregnancy. She has denied that the accused is innocent and has been falsely implicated in this case by her. She has denied that she had voluntarily had physical relations with the accused only to trap him for marriage. She has denied that she is deposing falsely.
75. In her complaint (Ex.PW4/A) which is dated 02.06.2011, the prosecutrix has stated similarly.
76. There a major contradiction in the time and duration the prosecutrix was known to the accused and when she first had physical relations with him.
77. In her complaint, Ex.PW4/A, which is dated 02.06.2011, she has mentioned that about two years ago she was introduced to the accused by his sister. This would mean that she met him in the year 2009 in month of May or June. However, in her evidence before the Court, she has deposed that she got married with Deepu on 21.08.2006 and separated in about 6 months. The sisters of accused namely Ms. Vijaya and Ms. Anu introduced the accused Murgesh to the prosecutrix as they used to reside in the same locality. She met accused Murgesh first time after about 2 ½ Sessions Case Number : 85 of 2013.
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months from the date of separation from her husband. This would mean that she met the accused in May or June, 2007. In her cross examination, she has deposed that she knew accused Murgesh for the last about 2 years which implies that it was since 2011.
78. Then, in her complaint, Ex.PW4/A, she has mentioned that the accused took her house of his friend and raped her and then said that he would marry her. However, in her evidence before the Court, she has deposed that the accused asked her to marry. After about 2 ½ months of their meeting, the accused established physical relations with her assuring her of marriage due to which she gave her consent. He also told her that even after marriage they have to do the same thing so they could do it even now. Accused established physical relations with her 2-3 times. The contradiction in first having physical relations and then offering marriage or otherwise serves a fatal blow to the prosecution case.
79. Then, in her complaint, Ex.PW4/A, she has mentioned that as she was pregnant, she told Ms.Anu, Biji and the accused about the same and Ms.Anu told her to go with the accused to his native village. However, in her evidence before the Court, she has only deposed that the accused took her to his village on 11.05.2011 and there is no mention about her pregnancy nor about the sister of the accused asking her to go with the accused. This contradiction also serves a fatal blow to the prosecution case.
80. In her examination in chief, she has deposed that the accused took her to his village on 11.05.2011 while in her cross examination, she Sessions Case Number : 85 of 2013.
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has deposed that she had gone with the accused to Guntur on 11-12/05/2011.
81. In the present case it is clear from the evidence of the prosecutrix that she was already married with Mr. Deepu on 21.08.2006 and her marriage subsisted when she got involved with the accused. In such a situation it was not possible for her to get married with accused when she herself was already married and had not taken a divorce from her husband Mr. Deepu. The factum of her not taking a divorce from Mr. Deepu is admitted in the cross examination of the prosecutrix recorded on 08.04.2013 wherein she has deposed "I was married with Mr. Deepu o 21.08.2006. It is correct that I have informed the police regarding the date of my marriage with Mr. Deepu. It is correct that even today my marriage with Mr. Deepu subsists as we have not taken a divorce." It is clear that despite being fully aware that her marriage continued with Mr. Deepu, she had got involved with the accused and had physical relations with him due to which a male child was born to her. The accused has also admitted the paternity of the minor son namely Mr. Shivam of the prosecutrix and that he is the biological father of the child.
82. It is not in dispute that the accused had physical relations with the prosecutrix.
83. The only dispute which remains is whether or not it was with her free consent or under a misconception on the false pretext of promise to marry. By no stretch of imagination it can be said that the Sessions Case Number : 85 of 2013.
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accused had promised to marry her as it is admitted by the prosecutrix herself in her cross examination recorded on 08.04.2013 that she had told the accused about her marriage with Mr. Deepu and that she had not taken a divorce from him. She has admitted that she had gone with the accused to Guntur with her free consent. She had not lodged any complaint against the accused at Guntur with her own consent. She had physical relations with the accused voluntarily and with her free consent. She had not tried to obtain divorce from her husband Mr. Deepu. She has admitted that she is fully aware that she cannot marry the accused or anyone till her marriage with Mr. Deepu subsists.
84. It is apparently clear that the prosecutrix had herself got involved physically with the accused after her separation from the husband who presently is in jail in connection with some criminal case and the marriage between the prosecutrix and her husband still continues. In such a situation the accused could not have married the prosecutrix, even if he wanted to, as she herself was not capable of marrying him being already married herself.
85. The prosecutrix has deposed that she had met the accused after about two and half months from her separation from her husband and thereafter had started meeting him at different places and telephoning him. After two and half months of their meeting she had established physical relations with the accused. Although she has claimed that the accused had assured that he would marry her but this part of deposition is of no help to the prosecution as the accused could not have married to already married Sessions Case Number : 85 of 2013.
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woman.
86. It is clear that the prosecutrix had physical relations with the accused voluntarily and with her free consent and it was without any misconception of facts or any false promise of marriage. She apparently did not have any grievance at any stage in being physically involved with the accused and had physical contact with him on more than one occasions. She herself was willingly phoning, meeting and having physical relations with him and this relationship has developed with the consent of the prosecutrix. She was capable of understanding the complications and issues surrounding her marriage with Mr. Deepu and then being involved with the accused to the extent of having physical relations with him and bearing his child. The Court fails to comprehend as to how the allegations of false promise of marriage and rape have been raised by the prosecutrix as she being already married woman could not have married the other man during the subsistence of her marriage.
87. The prosecutrix has also deposed that she was aware that she herself was also married and she had herself told this fact to the accused. In such a situation, there was no occasion for the accused to offer marriage to her and then her accepting the same and questioning him as to when he would marry her since such a marriage is legally not permissible. It may be mentioned here that the hon'ble Supreme Court of India in the judgment reported as Prashant Bharti v. State of NCT of Delhi, MANU/SC/0063/2013: 2013 (1) SCALE 652 has observed in a similar case as follows:
Sessions Case Number : 85 of 2013.
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"Priya married another man Manoj on 30.9.2008. This is evidenced by a certificate of marriage dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on the assurance of marriage."
88. The prosecutrix has made several improvements and contradictions from Ex.PW4/A in her evidence before the Court which remain unexplained.
89. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.
90. It can be seen from the evidence of the prosecutrix that the allegations leveled by her of rape by the accused are false and unbelievable. It seems that she has not been raped but she was a consenting party to the physical relationship with the accused.
91. In the light of the aforesaid nature of deposition of the prosecutrix, PW4, who happen to be the material witnesses, I am of the Sessions Case Number : 85 of 2013.
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considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
92. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
93. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
94. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of Sessions Case Number : 85 of 2013.
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case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
95. If one integral part of the story put forth by a witness- prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
96. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that the of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
Sessions Case Number : 85 of 2013.
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97. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved.
98. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
99. Consequently, no inference can be drawn that the accused is Sessions Case Number : 85 of 2013.
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guilty of the charged offence under section 376 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused.
100. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
101. This brings me to the final question as to whether it was she was raped by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been raped by the accused but there are several contradictions in her statements which remain unexplained and indicate that no such offence was ever committed by the accused. More importantly, the prosecutrix is an already married woman and could not have married as her marriage with Mr.Deepu was subsisting.
102. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere Sessions Case Number : 85 of 2013.
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matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
103. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
104. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
105. It is clear that the prosecutrix had willfully remained with the accused and had physical relationship, if any, with him being a consenting party and that the accused does not appear to have committed any offence
106. All the above facts and the ratio of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of rape and the accused merits to be acquitted for the offence under section 376 of the IPC.
107. As regard to the allegations of theft of one mobile phone, one Sessions Case Number : 85 of 2013.
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ticket and cash of Rs. 2,000/- by the accused from the possession of the prosecutrix on the way at Gundur station while taking her to village Ambapaliyam in Tamil Nadu, it may be observed that the prosecutrix as well as prosecution have not produced any document to show that the prosecutrix was ever in possession of one mobile phone, one ticket and cash of Rs. 2000/- or that she actually travelled from Delhi to Guntur and then back to Delhi. The prosecutrix has also not lodged any complaint at Gundur railway station about the theft. She has stated that she told the policeman who were on duty at Railway Station but this fact is falsified in the evidence of the IO/WSI Bimla Devi who has deposed in her cross- examination that despite the police team gone to Tamilnadu twice, they could not meet the police team who had allegedly met the prosecutrix at Guntur Railway station and helped her. She has not filed any statement of the police official or RPF official recorded at Guntur Railway Station by the police team which had gone there.
108. PW7, ASI Rajender Singh, has also deposed that he has made investigation and no police official met him in regard to the prosecutrix boarding the train from Chennai to Delhi after getting help from the police.
109. Even, otherwise neither the mobile phone nor the ticket nor cash of Rs. 2000/- belonging to the prosecutrix has been recovered from the unlawful possession of the accused. The allegations regarding theft remain unsubstantiated.
110. All the above facts indicate that there is no veracity in the Sessions Case Number : 85 of 2013.
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prosecution case in respect of the offence of theft and the accused merits to be acquitted for the offence under section 379 of the IPC.
CHARACTER OF THE PROSECUTRIX
111. It may also be mentioned here that PW5, grand mother of the prosecutrix and PW8, step mother of the prosecutrix have deposed some alarming facts about the character of the prosecutrix which also indicate that the possibility of a false prosecution of the accused is there. It appears from their evidence that the prosecutrix herself had gone with the accused and had lived with him and the same was without the consent and knowledge of her family but with her own free consent and without any misconception of facts and without any promise of marriage by the accused.
112. PW5, Ms. Ammassi, has deposed that Mr. Deepu (husband of the prosecutrix) was a criminal and he got suspicion upon the character of the prosecutrix and also used to beat her. Mr.Murgesh used to meet prosecutrix frequently and thereafter both started living together and they left her house. The mother of accused advised prosecutrix not to meet accused Murgesh but she did not obey and used to meet him. Prosecutrix left the house with the accused and did not return for some days. This happened about one and a half years ago. They came to know that prosecutrix had left the house and started living with accused Murgesh and this fact come to their knowledge when mother of Mr.Murgesh informed them. Murgesh used to make telephone calls to prosecutrix to which her husband Deepu Sessions Case Number : 85 of 2013.
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used to beat her on this. Deepu did not ask from Murgesh why he used to make calls to prosecutrix. The parents of the prosecutrix did not lodge any complaint about her grand daughter being missing from home since they were aware that she had gone with Murgesh.
113. PW8, Ms.Laxmi, has deposed that parents of accused Murgesh were saying that prosecutrix was in love with accused Murgesh. One day accused Murgesh visited their residence and started shouting the name of the prosecutrix who was in the house at that time along with her grand mother. When she did not come out of the house, accused Murgesh attacked himself with blade. She telephoned the prosecutrix on her mobile phone which was picked up by accused Murgesh. She asked him where was the prosecutrix on which he replied that Murgesh was speaking. He said that the prosecutrix was in bath room. She told Murgesh that she was mother of the prosecutrix but he switched off the phone. Thereafter, she told her mother in law that the prosecutrix and Mr. Murgesh both had gone somewhere together.
MENS REA / MOTIVE
114. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. Sessions Case Number : 85 of 2013.
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115. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
116. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is Sessions Case Number : 85 of 2013.
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often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
117. In the present case, a story has been projected that the accused has raped the prosecutrix on promise of marriage and thereafter continued to rape her and had stolen her articles and this version appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecutrix.
118. There does not appear to be any criminal intention and mens rea on the part of the accused.
INVESTIGATION
119. The investigation conducted in the present case has been deposed by PWs 6, 7, 10 and 112. The MLCs of the prosecutrix and the accused have been proved by PW1, 2, 3, 9 and 12. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
120. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case. Sessions Case Number : 85 of 2013.
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The investigation appears to have been conducted fairly and properly.
121. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
122. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
123. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
124. Since the prosecutrix as PW4 is neither reliable nor believable as there are overwhelming contradictions and improvements in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
125. From the above discussion, it is clear that the evidence of the Sessions Case Number : 85 of 2013.
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prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape and theft by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
126. 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 the one to be proved; and
5. 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.
127. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Murgesh stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor when the Sessions Case Number : 85 of 2013.
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alleged offence was committed. It also stands established that the accused had neither raped her nor stolen her articles. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
128. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped and her articles were stolen by the accused.
129. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused.
130. Accordingly, Mr.Murgesh, the accused, is hereby acquitted of the charges.
131. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media. Sessions Case Number : 85 of 2013.
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COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
132. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
133. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
134. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
135. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 05th day of June, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
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