Delhi District Court
State vs . Rakesh Tyagi on 4 August, 2016
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS
JUDGE (SFTC), DWARKA COURTS, NEW DELHI.
SC No. 441298/16
State vs. Rakesh Tyagi
FIR No. 15842015
U/s. 376 IPC
P.S. Dabri
04.08.2016
ORDER ON CHARGE : (Oral)
1.The case of the prosecution, in brief, is that prosecutrix 'X' (real name withheld in order to conceal her identity), a resident of Ludhiana, Punjab, came to Delhi about twothree years back and started residing with her distant relative at Raghubir Nagar, Delhi. After about three months, she shifted to a rented accommodation at Chankya Place. She applied for a teaching job. She came in contact with the accused who was a Chairman of M.R.C. Public School, Vikas Nagar, Hastsal, New Delhi when she had gone to the school for her interview. Thereafter, she met the accused twothree times on his asking. After few days the accused proposed to marry her. She agreed for the same and they had physical relations which continued for about two years. One day accused came to her house and had forcible sexual intercourse with her. He gave State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 1 beatings to her and also broke her mobile phone which was gifted to her by him.
2. On the aforesaid complaint of the prosecutrix given to the Police on 31.12.2015, the present FIR was registered for the commission of offences punishable u/s 376 IPC.
3. During investigation prosecutrix was medically examined at DDU Hospital, Hari Nagar, New Delhi on 31.12.2015. Her statement u/s 164 Cr.PC was recorded by Ld. MM, Dwarka Courts, New Delhi on 4.1.2016. The statements of witnesses conversant with the facts were recorded. After completion of investigation, a chargesheet was filed against the accused for commission of offences under Section 376 IPC.
4. I have heard Ms. Satvinder Kaur, Ld. APP for the State and Sh. Bharat Bhushan Kaushik, Ld. Counsel for the accused.
5. Ld. Counsel for the accused has contended that the accused has been falsely implicated in this case. He is not known to the prosecutrix. According to him, no prima facie case for the alleged offence is made out against the accused and he is liable to be discharged.
6. On the other hand, Ld. APP for the State has contended that there is sufficient material on record for framing charge against the accused.
7. I have gone through the case file. The FIR in criminal case is State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 2 an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is well settled proposition of law that a merely delay itself cannot be a ground to disbelieve the entire case of the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given case. Though not referred to or relied upon, in case of Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.
8. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified in the facts and circumstances of a given case. However, in the present case there is delay of about six months in lodging the FIR.
9. In the FIR itself the prosecutrix has alleged that the physical relations with the accused were consensual on his promise to marry. For the last incident she has alleged that the accused forcibly committed rape upon her. She has not given the date, month and year of the said alleged State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 3 incident in the FIR as well as in her statement u/s 164 Cr.PC. The relationship continued for sufficient duration. She neither raised alarm/hue and cry nor immediately lodged report with the police against alleged forcible sex. The prosecutrix approached the police on 31.12.2015 and lodged the complaint with the police after considerable unexplained delay.
10. Ld. Counsel has contended that the prosecutrix is habitual in lodging false rape cases to extort money which were registered in PS Hari Nagar and PS Miyanwali Nagar. It is pertinent to mention here that the prosecution itself has mentioned about rape cases lodged by the prosecutrix against different person in the chargesheet itself. The relevant portion of the chargesheet is reproduced hereinbelow :
"जज ददनननक 01.02.16 कज ददरननन Bail metter ससनवनई आरजपप रनकनश तयनगप कन वकपल नन दशकनयतकतनर रनखन रननप कन Rape कन मसकदमन पहलन भप थननन हरप नगर मम हजनन बतलनयन व दमयनन वनलप नगर मम हजनन बतलनयन थन जज ददरननन Bail metter ससनवनई जज सनहब नन दशकनयतकतनर रनखन रननप कप पहलन करनई FIR कज वनरपफनई करनन व दरपजरर पनश करनन कन आदनश ददयन थन व Bail metter कज ददनननक 11.02.16 कन दलए pending रखन गयन थन । जज ददरननन तफतपश दशकनयतकतनर रनखन रननप नन FIR No. 707/15 U/s. 376/506 IPC dt 14.05.15 कज PS Hari Nagar मम आरजपप शशबप कजहलप कन दखलनफ करनई हसई न हश व आरजपप शशबप कजहलप दनरन धमकप दननन कन बनबत दशकनयतकतनर रनखन कन पदत सदरभ नन 15. 06.15 कज FIR No. 438/15 U/s. 326A/506/34 IPC P.S. दमयनन वनलप नगर मम करनयन हसआ हश जज उपरजकत FIR लफ फनइल हश ।"
11. The accused, in the present case, was granted anticipatory bail on 11.2.2016 by Ld. ASJ, Dwarka Courts, New Delhi. While State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 4 disposing of the said bail application, it was found by Ld. ASJ that prosecutrix had lodged different FIRs against different persons alleging therein commission of rape upon her. The relevant portion of the said order is reproduced hereinbelow:
"IO submits that she has made inquiries regarding the two FIRs bearing No.707/15 and 438/15. She submits that FIR No. 707/15 has been registered in PS Hari Nagar against one Sebi Kohli on the complaint of this very prosecutrix wherein she has mentioned herself as the wife of Saurabh. She further submits that the FIR No. 438/15 has been registered in P.S. Miyawali Nagar against the same Sebi Kohli wherein he has mentioned this prosecutrix as his wife. She further submits that the FIR No. 1653/15 has been registered in PS Hari Nagar against one Raghuvender Singh on the complaint of Suman W/o rakesh who has mentioned her mobile number as 7065410051. The IO submits that upon verification of the customer details of the aforesaid mobile number, she came to know that this mobile number has been obtained on the identity documents of the prosecutrix herein which indicates that the said FIR too has been got registered by the prosecutrix herein but in a fictitious name. It may be mentioned here that all the aforesaid three FIRs have been registered for the offence of rape.
It is submitted by Ld. Counsel for the applicant that the prosecutrix has set out in filing false complaints of rape against the applicant and his friend Raghuvender at the behest of one Sanjeev Yadav with whom they have some property disputes."
12. The prosecution has placed on record FIR No.707/15 PS Hari Nagar which was lodged by the prosecutrix herein claiming herself to be wife of one Saurabh. The other FIR No.438/2015 PS Miyanwali Nagar is also on record wherein one Saurabh has claimed to be the State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 5 husband of the prosecutrix herein. From the perusal of these documents it appears that the prosecutrix was already married to one Saurabh and, therefore, there was no reason or occasion for her to get misled by any promise or assurance of marriage from the side of the accused.
13. Prosecutrix was medically examined on 31.12.2015 at DDU Hospital, New Delhi. Doctor has written on the MLC that she did not find any fresh external injury on the person of the prosecutrix at the time of the examination. After performing the clinical examination, the doctor gave the finding "not consistent with the recent sexual intercourse/assault". There is no medical evidence to support the version of the prosecutrix that she was raped as she was taken to the hospital after about six months of the alleged incident. Accused was also medically examined by doctor on 4.3.2016 at DDU Hospital, New Delhi which was a sheer formality.
14. The call details record of accused also does not show that the accused was in touch of the prosecutrix. The prosecutrix did not provide her number on which accused used to talk to her on the ground of having forgotten the same.
15. It is the settled law that order framing the charges does substantially affect the persons and the Court must not automatically frame the charge merely because the prosecution authorities, by relying State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 6 on the documents referred to in Section 173 Cr.PC, consider it proper to institute the case.
16. Though not referred to or relied upon, it has been observed by Madhya Pradesh High Court in judgment - Sunder Singh v. State of M.P., Cr.R No.607/2013 decided on 3.9.2013 as under :
"42. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself have placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken favouring the accused, the court shall not put the accused to harassment by asking him to face a trial. Please see: State of Maharashtra v. Som Nath (1996) 4 SCC 659. In the case at hand, if the Court allowed to asking applicant face the trial on above discussed evidence, definitely it will amount to put the applicant for harassment."
17. After examining the documentary as well as oral evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted, before it is challenged by cross examination or rebutted by defence evidence, if any, is not showing that accused committed the alleged offences for which they are being prosecuted because of following reasons:
(a) No complaint was lodged by the prosecutrix till 31.12.2015 though she was allegedly raped by the accused for the last time in July 2015.
State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 7 There is no valid justification for delay in lodging the FIR. (b ) The evidentiary value of the medical evidence is zero.
(c) The call details record of the accused does not support the prosecution.
(d) The prosecutrix has claimed herself to be an unmarried woman. However, the documents placed on record by the prosecution itself show that she was married to one Saurabh. Therefore, there was no reason or occasion for her to get misled by any promise or assurance of marriage from the side of accused.
18. Considering the facts and circumstances of this case, after sifting and weighing the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused, I am of the opinion that the materials placed before the Court do not disclose the grave suspicion against the accused for framing a charge against him for committing offences punishable under Section 376 IPC. Accordingly, accused in the present case is discharged. His personal bond is cancelled and surety is discharged. In terms of Section 437(A) Cr.P.C., accused is directed to furnish within a week personal bond in the sum of Rs.25,000/ with one surety in the like amount for a period of six months for his appearance before the High Court of Delhi in the event the prosecution wishes to challenge the present order by filing the appropriate petition in State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 8 the High Court. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Dictated & announced today in (PRAVEEN KUMAR) open court i.e on 4.8.2016. ADDL. SESSIONS JUDGE (SFTC) DWARKA COURTS:NEW DELHI.
State v. Rakesh Tyagi (FIR No.1584/15 PS Dabri) Page 9