Delhi District Court
State vs Nirav Panchal -:: Page 1 Of 12 ::- on 14 August, 2014
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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 : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
State versus
Mr.Nirav Panchal,
Son of Mr. Bhai Lal Bhai Panchal,
Resident of 459, Harish Chander Nagar,
Vastral Road, Ahmedabad.
First Information Report Number : 121/2014.
Police Station Mianwali Nagar.
Under sections 376/313 of the Indian Penal Code.
Date of filing of the charge sheet : 15.04.2014.
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 09.05.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 14.08.2014.
Date of judgment : 14.08.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State is on leave.
Mr. Vinod Kumar Sharma, Substitute Additional Public
Prosecutor for the State
Accused Mr.Nirav Panchal on bail with counsel, Mr. Sunil
Kumar.
Prosecutrix in person with her counsel Mr.Mohd Azhar and
Ms.Bindiya Malhotra.
Ms.Poonam Sharma, counsel for Delhi Commission for
Women.
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Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 1 of 12 ::-
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."............ Kurt Cobain ************************************************************
1. The charge sheet has been filed against the accused, Mr. Nirav Panchal, by Police Station Nangloi, Delhi for the offence under sections 376 and 313 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that since the second week of June, 2010 till November,2013 at different places i.e house of the prosecutrix (name and address mentioned in file but withheld to protect her identity) at Delhi in second week of June, 2010, on 17.06.2010 at Hotel King Palace, Ashram Road, Ahmedabad, on 27.06.2010 at Chmpaner Gujarat Tourism Hotel at Machi, Junagadh, Gujarat, Tourism Hotel opposite bus stand in Diu, on 10.09.2010 at Shiv Shakti Vilas Hotel, Lake Road, Udaipur, from 05.11.2010 to 10.11.2010 in Pattan in Gu- jarat in a hotel at Highway, in December, 2010 at Panchal Sadan, Ahmed- abad at Mount Abu, in February, 2011 in the house of the prosecutrix, on 06.02.2011 at Hotel Sai at Aurangabad, March,2011 on Holi Shiv Shakti Vi- las Hotel, Lake Road, Udaipur, On 15 to 18.09.2011at DIU, in October ,2011 in the house of accused and on every weekend, on 08.03.2012, Holi at King Palace Hotel, Ashram Road, Ahmedabad, on 19.04.2012 at Hotel King Palace, Ashram Road, Ahmedabad, from 22.06.2012 to 24.06.2012 onwards at Hotel King Palace, Ashram Road, Ahmedabad, on 27.06.2012 at the house of the accused, in August, 2012 (on accused's birthday) at Barola and then at King Place Hotel Ahmedabad, from 13.11.2012 to 19.11.2012 at Delhi in the house of the prosecutrix, on 14.02.2013 at Ahmedabad, on 20.03.2013 at Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 2 of 12 ::-
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King Palace Hotel, Ahmedabad, July 2013 at Delhi and November, 2013 at Delhi within the jurisdiction of Police Station Mianwali Nagar Delhi, he committed rape upon the prosecutrix under the false promise to marry her and continued to rape her. On 21.01.2013 at Ahmedabad, the prosecutrix came to know about her pregnancy and the accused gave her some pills say- ing that it will provide vitamins and harmonise the position of the baby and thereby caused the abortion of the prosecutrix and again on 22.04.2013 at Delhi when the prosecutrix came to know about her pregnancy and the ac- cused gave her some pills saying that they are good for her health and there- by caused the abortion of the prosecutrix. After November,2013 at time and place not disclosed, accused threatened to kill the prosecutrix in case she lodged any police complaint and also that accused would destroy her hard work of years which she had put for her P.H.D.
2. After completion of the investigation, the charge sheet against ac- cused Mr. Nirav Panchal was filed before the Court of the learned Metropoli- tan Magistrate on 15.04.2014 and after its committal, the case has been as- signed to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 09.05.2014.
3. After hearing arguments, charge for offence under sections 417, 313, and 506 of the IPC was framed against the accused Mr. Nirav Panchal vide order dated 31.07.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the prosecutrix as PW1.
Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 3 of 12 ::-
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5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. The prosecutrix, as PW1, has deposed that she knows the accused Nirav Panchal. Accused met her in 2010 in Baroda, Gujrat where she had gone for higher studies. She fell in love with the accused. She started going with the accused to the different places including Udaipur, Mount Abu, Ahmedabad and she has also developed physical relations with the accused with her free consent. During their relationship, she became pregnant twice and thereafter miscarriage had taken place by itself on both occasions. She do not have any grievance against the accused as she had physical relations with him with her free consent and without any promise of marriage. Due to some misunderstanding and due to wrong advise she had made a complaint (Ex.PW1/A) against the accused in Police Station Mianwali Nagar. She was taken to hospital by the police for her medical examination, where she told the doctor the same facts which she has deposed today. The accused was arrested in her presence on 14.03.2014 vide arrest memo (Ex.PW1/B). His personal search was conducted vide personal search memo (Ex.PW1/C). Accused also made disclosure statement (Ex.PW1/D). She was produced Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 4 of 12 ::-
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before the learned Metropolitan Magistrate for her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex.PW1/E). She voluntarily stated that she had given her statement before the learned Metropolitan Magistrate due to wrong advise of her well wishers and due to some misunderstanding. She has prayed that the accused may be acquitted as he is innocent and she does not have any grievance against him.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
8. In her cross examination by the prosecution, the prosecutrix has deposed that she had given the statement before learned Metropolitan Magistrate as elaborated in Ex.PW1/E. She voluntarily stated that she had made this statement under the provocation of her friends due to misunderstanding between her and accused. In fact accused did not establish relationship with her without her consent. She had given her full consent for the physical relations. Accused did not compel her for abortion nor provided pills to her for abortion. Now she is living separately from the accused. She admitted that she had stated before the learned Metropolitan Magistrate that the accused established physical relations with her under the promise of marriage. She admitted that she had stated before the learned Metropolitan Magistrate that in April, 2013, she reached at Ahmedabad and thereafter reached the house of the accused where she came to know that he is going to marry with another lady. She admitted that she had stated before the learned Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 5 of 12 ::-
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Metropolitan Magistrate she asked the accused to reside in his house but he threatened her. She admitted that she had stated before the learned Metropolitan Magistrate that the wife of accused told to the accused give kick on her stomach so that the foetus in her womb may die and she called her prostitute but the accused did not say anything. She admitted that she had stated before the learned Metropolitan Magistrate that the accused refused to marry with her and he come up to Baroda Hostel to drop her along with his wife and thereafter he went missing for about 15 days. She told him that she is going to gave birth to a child, thereafter he took her to the doctor. She admitted that she had stated before the learned Metropolitan Magistrate that the accused told her that he will marry with her after divorcing Ms. Urvashi. She admitted that she had stated before the learned Metropolitan Magistrate that thereafter she started living with accused in Baroda in a rented accommodation, where accused had administered pills to her and due to which foetus was aborted. She admitted that she had stated before the learned Metropolitan Magistrate that in December, 2013 she came to know that the accused Nirav did not divorce his wife Ms. Urvashi and when she asked accused Nirav, he gave beating to her. She admitted that she had stated before the learned Metropolitan Magistrate that accused Nirav refused to marry with her and Ms. Urvashi also threatened her. She voluntarily stated that she had made the statement (Ex.PW1/E) before the learned Metropolitan Magistrate due to her misunderstanding with the accused and on the wrong advise of other persons who instigated her against the accused. She denied the suggestion that she is deposing falsely with the object to save accused as she has been won over by the accused and his family. She denied the suggestion that the accused committed rape upon her under the promise Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 6 of 12 ::-
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of marriage, made her abort twice, gave beatings to her and threatened her.
9. In her cross examination by the accused, the prosecutrix has admitted that the accused has never raped her nor threatened her nor made her abort twice nor had beaten her. She has admitted that accused is innocent and has not committed any offence.
10. The prosecutrix, has not deposed an iota of evidence of her being raped, threatened, beaten and made her abort twice by accused Mr.Nirav Panchal. She has not even mentioned the word "rape" by accused Mr.Nirav Panchal in her examination in chief nor has deposed anything incriminating against him. In fact, she has deposed that she had physical relations with the accused with her free consent.
11. In the circumstances, as PW1, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.
12. Statement under section 313 of the Cr.P.C of the accused is dispensed with as there is nothing incriminating against him when the Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 7 of 12 ::-
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prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
13. 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.
14. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that the case of the prosecution 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."
15. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
16. Consequently, no inference can be drawn that accused is guilty of raping the prosecutrix on a false pretext of marriage or threatening her or made her abort twice. There is no material on record to suggest that the prosecutrix was ever raped or threatened or beaten or made her abort twice by accused Mr.Nirav Panchal. No case is made out against the accused Mr.Nirav Panchal as there is no incriminating evidence against him. In fact, Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 8 of 12 ::-
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the prosecutrix has deposed that she had physical relations with accused Mr.Nirav Panchal with her free consent. She has even prayed for his acquittal.
17. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused is innocent and has not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
18. Consequently, no inference can be drawn that accused Mr.Nirav Panchal is guilty of the charged offences under section 376 read with section 417 of the IPC and section 313 and 506 of the IPC. There is no material on record to show that since the second week of June, 2010 till November, 2013 at different places i.e. house of the prosecutrix at Delhi in second week of June, 2010, on 17.06.2010 at Hotel King Palace, Ashram Road, Ahmedabad, on 27.06.2010 at Chmpaner Gujarat Tourism Hotel at Machi,Junagadh, Gu- jarat, Tourism Hotel opposite bus stand in DIU, on 10.09.2010 at Shiv Shakti Vilas Hotel, Lake Road, Udaipur, from 05.11.2010 to 10.11.2010 in Pattan in Gujarat in a hotel at Highway, in December, 2010 at Panchal Sadan, Ahmed- abad at Mount Abu, in February, 2011 in the house of the prosecutrix, on 06.02.2011 at Hotel Sai at Aurangabad, March, 2011 on Holi Shiv Shakti Vi- las Hotel, Lake Road, Udaipur, on 15 to 18.09.2011 at Diu, in October, 2011 in the house of accused and on every weekend, on 08.03.2012, Holi at King Palace Hotel, Ashram Road, Ahmedabad, on 19.04.2012 at Hotel King Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 9 of 12 ::-
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Palace, Ashram Road, Ahmedabad, from 22.06.2012 to 24.06.2012 onwards at Hotel King Palace, Ashram Road, Ahmedabad, on 27.06.2012 at his house, in August, 2012 (on accused's birthday) at Barola and then at King Place Ho- tel Ahmedabad, from 13.11.2012 to 19.11.2012 at Delhi in the house of the prosecutrix, on 14.02.2013 at Ahmedabad, on 20.03.2013 at King Palace Ho- tel, Ahmedabad, July 2013 at Delhi and November, 2013 at Delhi, the ac- cused committed rape upon the prosecutrix under the false promise to marry her and continued to rape her. There is no material on record to show that on 21.01.2013 at Ahmedabad, the prosecutrix came to know about her pregnan- cy and accused gave her some pills saying that it will provide vitamins and harmonise the position of the baby and thereby caused the abortion of the prosecutrix and again on 22.04.2013 at Delhi when the prosecutrix came to know about her pregnancy and accused gave her some pills saying that they are good for her health and thereby caused the abortion of the prosecutrix. There is no material on record to show that after November, 2013 at time and place not disclosed, accused threatened to kill the prosecutrix in case she lodged any police complaint and also that accused would destroy her hard work of years which she had put for her P.H.D.
19. From the above discussion, it is clear that the case of the prosecu- tion is neither reliable nor believable and is not trustworthy and the prosecu- tion has failed to establish the offences of rape or causing abortion or threat- ening or beating. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. In fact, she has deposed that she had physical relations with the accused with her free consent and that he is inno- cent.
Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 10 of 12 ::-
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20. 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 accused Mr.Nirav Panchal due to complete lack of evidence for the offences under section 376 read with section 417 of the IPC and section 313 and 506 of the IPC.
21. Consequently, the accused, Mr. Nirav Panchal hereby acquitted of the charge for the offences under section 376 read with section 417 of the IPC and section 313 and 506 of the IPC.
22. Compliance of section 437-A Cr.P.C. is made in the order sheet.
23. Case property be destroyed after expiry of period of limitation of appeal.
24. It would not be out of place to mention here that today there is a public outrage and a hue and cry is 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 or where the prosecutrix is hostile, as in the present case, 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.
25. Here, I would also like to mention that in recent times a new Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 11 of 12 ::-
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expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape as the prosecutrix retracted and turned hostile. In the circumstances, such a person, an acquitted accused, who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.
26. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
27. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 14th day of August, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 57 of 2014.
Unique Case ID Number : 02401R0102332014.
FIR No.121/2014, Police Station Mianwali Nagar.
Under sections 376,313 of the Indian Penal Code.
State versus Nirav Panchal -:: Page 12 of 12 ::-