Delhi District Court
And Directions Of Supreme Court In ... vs . Puttraj 2004 (1) on 25 July, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 411/2018
Assigned to Sessions. 01.06.2018
Arguments heard on 21.07.2018
Date of Judgment 25.07.2018
FIR No. 49/2018
State V Rohit Singh Yadav s/o Umesh Kumar
Yadav, r/o H. No.729, Prem Ganj,
ThanaSipri Bazar, Teh. Jhansi, Distt.
Jhansi, UP.
Police Station Timarpur
Under Section 376 (2)(n) IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Timarpur had filed a
challan vide FIR No.49/2018 dated 10.03.2018 u/s 376 IPC for the prosecution
of accused Rohit Singh Yadav in the court of ld. Metropolitan Magistrate. After
compliance of the requirement of section 207 Cr. P.C. the case was sent to this
court being the designated Special Fast Track Court for trial of the offences of
sexual assault against the women through the Office of Ld. District & Sessions
Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC
and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1)
SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name
of prosecutrix is not being disclosed in the judgment.
Case No.411/2018
State Vs. Rohit Singh Yadav 1/12
BRIEF FACTS OF THE CASE:
2. On 10.03.2018, present FIR was registered on the complaint of prosecutrix Ex.PW1/A, who alleged that in 2014 she become friend with accused Rohit Singh Yadav through Facebook who lived at Jhansi, U.P. She further stated in year 2016 she came to Delhi and used to live at Wazirabad, Delhi on rent and accused Rohit also started to live with her because they had developed a friendship. She further stated they started to live as husband and wife. She further stated that accused had told her that he will marry her and from 01.01.2016, they started living together at Wazirabad and next day i.e. on 02.01.2016, first time a physical relation established between them. In March'2017, they went to Vaishno Devi and in May'2017 she changed her room and started living at FBlock Gandhi Vihar. Thereafter, on 31.12.2014, they both went to Mussorie for outing and celebrated new year there. She further stated that on 09.03.2018, she suddenly received a photo and came to know that he has been engaged somewhere else. Therefore, present case was registered and investigation of case was assigned to W/SI Sonu.
3. Thereafter, prosecutrix was medically examined on 10.03.2018 in Aruna Asaf Ali Govt. Hospital and her blood samples were taken by the doctor. Her statement under section 164 Cr.P.C. was recorded by Ld. Magistrate on 12.03.2018 wherein she narrated the incident of physical assault, abuse, forceful sex with her done by accused at different times.
4. During the course of investigation, accused was arrested on the identification of prosecutrix, he was medically examined in Aruna Asaf Ali Hospital. After Case No.411/2018 State Vs. Rohit Singh Yadav 2/12 completing investigation charge sheet was filed and the matter was committed to this court for trial.
CHARGE:
5. On the basis of material available on record, this court vide order dated 03.07.2018 framed charge against accused Rohit Singh Yadav for the offence punishable u/s 376 (2)(n) IPC, to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
6. So far prosecution has examined only three witnesses.
7. PW1 Prosecutrix 'PY', is material witness being victim and complainant. She testified that she has done B.Sc. from Dr. Bhim Rao Ambedkar University, Agra, U.P. and they are five sisters, one brother and my parents and they live in Firozabad, U.P.
8. PW1 deposed that in the month of January, 2016 she had come to Delhi for UPSC examination and she had taken a room on rent in the area of Wazirabad, Delhi. PW1 further deposed that accused had met her on Facebook in the year 2014 and developed friendship. She has correctly identified the accused to be the same person against whom she had lodged the present complaint.
9. PW1 further deposed that since accused and herself were friend and he was living in Delhi, therefore, she had joined him in Delhi for my aforesaid purpose. She further deposed that they were supposed to marry and that due to Case No.411/2018 State Vs. Rohit Singh Yadav 3/12 intervention of some third person some misunderstanding was developed between her and accused and thereupon she had lodged the present complaint against the accused. She further deposed that since accused had engaged himself with some other girl, therefore, she was annoyed and she had lodged the present complaint. She has proved her complaint vide Ex.PW1/A. She further deposed that she had written the aforesaid complaint on the instructions of the IO. Police had come at their residence i.e. rented accommodation in Gandhi Vihar, Delhi. She had not insisted the police officials to arrest the accused but they had taken the accused to police station. She further deposed that they were mutually agreed to marry each other and there was no specific promise from the side of accused and that she did not inform the police that accused kept her in dark for promising to marry her and then established physical sexual relation with her. She voluntarily deposed that the sexual relations between her and accused were established by consent of both of them.
10. This witness was declared hostile by ld. Addl. PP for the State. In cross examination by Ld. Addl. PP for the State, she had denied to the suggestion that she had specifically stated to the police that accused had promised to marry her. She deposed that she had consented accused to have physical sexual relation with her and that she had not made any such allegation to the police against accused. She deposed that however, she had written the complaint Ex.PW1/A on the directions of police officials who stated to her that rape case would be made against the accused. This witness had denied to the suggestion that accused had raped her on false promise of marriage and therefore, she had lodged complaint against him. This witness admitted that she had only grievance against the accused as he did not discuss with her the matter of his Case No.411/2018 State Vs. Rohit Singh Yadav 4/12 engagement with another girl. She had no grievance against accused for marrying another girl. She admitted that she had given her statement before the Ld. Magistrate. She has proved the same vide Ex.PW1/B.
11. On Court question: When you had consented accused for physical relation with you, why you lodged the present complaint against him. What you have to say?
She replied that she was consented and there was no specific promise of marriage from the accused. Since accused had engaged himself with some other girl, therefore, she had lodged the present complaint.
12. She admitted that she had given three printouts of photographs to police after downloading the same from Facebook which were seized by the police vide seizure memo Ex.PW1/C bearing her signature at point A. She did not lodge any complaint to senior police officers against the conduct of the IO who dictated her the statement Ex.PW1/A. She further admitted that she did not make any complaint against IO to the Magistrate, nor explained the circumstances of lodging FIR by the police against accused. This witness admitted that she had shown two places of incident where accused and herself had lived together and the site plans Ex.PW1/D and Ex.PW1/E were prepared. This witness had denied to the suggestion that she had pointed out these places to police stating that accused had established physical relation with her promising her to marry at these places. She admitted that she had signed the arrest memo Ex.PW1/F at point A. She denied to the suggestion that she has been won over by the accused and in order to save him from the case deliberately deposing falsely. She admitted that that she was medically examined in Aruna Asaf Ali Hospital vide MLC MarkX but she did not allow Case No.411/2018 State Vs. Rohit Singh Yadav 5/12 for her internal medical examination.
13. She denied to the suggestion that accused had promised her to marry and that is why she had allowed him to have sexual relation with her or that she had insisted upon the police officers to arrested the accused.
14. On being cross examined by Sh. Sanjeev Manchanda, Ld. counsel for accused, she admitted that accused never refused to marry me. She deposed that Mr. Azab Lilhare was with her in police station when she had written the complaint Ex.PW1/A. She had made the aforesaid complaint on the persistent pressure of Mr. Azab Lilhare. She deposed that Mr. Azab Lilhare used to say to teach lesson to accused that now he would come under financial burden and his house would be sold and used to ask her that she would get Rs. Ten crores from the accused but she never agreed to this proposal. I had requested the police officials to keep my complaint pending till Monday as I had lodged complaint on Saturday. She deposed that police did not agree to this and they did not want to leave accused despite her request saying that where they would apprehend the accused once released. She admitted that there had been no force or violence used during the physical relation done by the accused with her.
15. PW2 Dr. Valvi Kuldeep has proved the MLC of accused vide Ex.PW2/A.
16. PW3 W/SI Sonu is the Investigating Officer in the present case. She deposed that during inquiry the complainant levelled the allegations of rape against the accused Rohit Singh, who is present in the court today (correctly identified). She deposed that medical examination of complainant was conducted vide Case No.411/2018 State Vs. Rohit Singh Yadav 6/12 MLC MarkX. However, she refused for her internal medical examination. She further deposed that complainant was counseled by a counselor of an NGO at police station and that she obtained the counselor report of the counselor which is MarkXX.
17. She has proved handwritten complaint of complainant vide Ex.PW1/A. She made endorsement on the complaint vide her endorsement Ex.PW3/A bearing her signature at point A. She further deposed that the rukka was sent through a constable, whose name she does not remember, to Duty Officer to get registered the FIR.
18. She further deposed that on seeing the accused, the complainant correctly identified him while stating that he was the person who had committed rape upon her. She deposed that during interrogation the accused confessed his involvement in the present case vide disclosure statement of accused, Ex.PW3/B which bears her signature at point A and of accused at point B. She has proved his arrest memo Ex.PW1/F and personal search memo vide Ex.PW3/C. He was medically examined vide MLC already Ex.PW2/A. After medical examination of accused she had left to spots with the prosecutrix i.e. at Wazirabad and Gandhi Vihar where she prepared site plans already Ex.PW1/D and Ex.PW1/E respectively which bears her signature at point B. She has recorded the statement of the prosecutrix under section 161 Cr.P.C. at police station, dated 10.03.2018 vide Ex.PW3/D. She has seized the exhibits vide seizure memo Ex.PW3/E.
19. On Court question: Prosecutrix in her cross examination by State had submitted Case No.411/2018 State Vs. Rohit Singh Yadav 7/12 that she had written the complaint Ex.PW1/A on the directions of police officials. What you have to say? She replied that it is incorrect. She had not instructed her any fact in her complaint, rather she had written the said complaint in her own handwriting.
20. She deposed that thereafter, she had to go to Chandigarh for a course and therefore, the further investigation of this case was assigned to W/SI Meenakshi. She handed over the case file to SHO. She further deposed that again on 19.03.2018 investigation of this case was assigned to her on the directions of SHO. She had examined the landlords namely Vinod Gupta and Tarun Bakshi of the places where the accused and prosecutrix stayed together and both the landlords had verified staying of prosecutrix and accused at aforesaid two places.
21. She further deposed that she served the notice, under section 91 Cr.P.C.
Ex.PW3/F bearing her signature at point A, upon the prosecutrix for providing her contact number and of accused. She deposed that prosecutrix was also asked through the notice for providing the details of the hotel where she and accused stayed together at Mussorie, Uttarakhand and that in response to the notice the prosecutrix gave the contact numbers and the details of hotel. In this regard she made the endorsement on the abovementioned notice Ex.PW3/F vide her endorsement Ex.PW3/G which bears the signature of prosecutrix at point A.
22. She further deposed that the prosecutrix also gave her the photographs of the engagement of the accused with other girl and those photographs were seized Case No.411/2018 State Vs. Rohit Singh Yadav 8/12 by her through seizure memo already Ex.PW1/C. She has proved three photographs are marked as MarkXX1 (colly.).
23. She further deposed that she recorded the supplementary statement of the prosecutrix under section 161 Cr.P.C. on dated 23.03.2018 vide Ex.PW3/H. She further deposed that on 29.03.2018 HC Rajesh had produced copy of hotel guest register of Mussorie before her which are running into 06 pages and is marked as MarkXX2 (colly.).
24. On being cross examined by Sh. Sanjeev Manchanda, ld. counsel for accused, she admitted that prosecutrix had made a PCR call on 09.03.2018. She deposed that she does not know if accused had stated that he was ready to marry the prosecutrix on 10.03.2018 in the police station in her presence or that he would get marry with the prosecutrix on Monday i.e. 12.03.2018. She deposed that one of friend of the prosecutrix was with her at the time of inquiry with the prosecutrix in police station and his name was Ajab Lilhare. This witness had denied to the suggestion that prosecutrix had asked her to hold/pending the complaint on 10.03.2018 till Monday i.e. 12.03.2018. This witness admitted that on 10.03.2018 friend of the prosecutrix had made a call at number 1091 against her with the allegation that his sister was inside the police station and she was not taking any action and an inquiry was conducted against her. This witness admitted that word "jabardasti" is not mentioned in the complaint already Ex.PW1/A.
25. On Question: I put it to you that it is mentioned in the complaint Ex.PW1/A that accused and prosecutrix were living together as husband and wife in livein Case No.411/2018 State Vs. Rohit Singh Yadav 9/12 relationship. What you have to say? Question declined. Since complaint has already been exhibited as Ex.PW1/A and contents of the same will be read in evidence.
26. She admitted that in response to notice under section 91 Cr.P.C. hotel management, Mussorie filed their statement mentioning that four persons are living in their hotel consisting of accused, prosecutrix, Ajab Lilhare and one more girl in their hotel on 31.12.2017. It is also mentioned that two rooms were booked in the name of Ajab Lilhare.
27. This witness had denied to the suggestion that she had obtained the signature of the accused on blank paper or that same has been used as his disclosure statement. She had not recorded the statements of mother and sisters of the prosecutrix. She deposed that she had inquired about the PCR call and she came to know that it was a call of quarrel at the place in Gandhi Vihar, Delhi. This witness had denied to the suggestion that accused was not arrested on 10.03.2018 or that she had instructed the prosecutrix the contents of the complaint in police station or that prosecutrix had written one complaint which is not on record as per prosecutrix statement or that she has deposed falsely.
28. Ld. counsel for accused persons requested to close P.E. on the ground that prosecutrix being a star witness, has not supported the case of the prosecution and no purpose would serve in continuing further trial.
29. On the other hand, Ld. Addl. PP for the State has objected to the prayer of ld.
counsel for accused and submitted that the case of prosecution cannot be Case No.411/2018 State Vs. Rohit Singh Yadav 10/12 thrown overboard merely on the ground that prosecutrix has not supported the case of prosecution and that prosecution should be allowed to continue with the trial. Heard.
PERUSAL OF RECORD:
30. Since prosecutrix herself has turned hostile and has not supported the case of prosecution on any aspect, hence, no needful purpose would be served to continue with the trial. The allegation of rape cannot be proved by any other witness cited in the chargesheet except prosecutrix. Even if the testimony of other prosecution witnesses is accepted. It would not be of any help in the absence of supported version of prosecutrix which has not come on record as prosecutrix turned hostile and changed her version. Hence, the request of Ld. Addl. PP for the State for further examination of other witnesses is declined and P.E. is closed.
31. Since no incriminating evidence has come on record. Hence, S.A. u/s 313 Cr. P.C. is dispensed with. Accordingly, accused Rohit Singh Yadav is acquitted from the charges u/s 376 (2)(n) IPC.
32. Accused is directed to execute bail bond u/s 437 A Cr. P.C. in sum of Rs. 25,000/ with one surety in the like amount.
33. Since prosecutrix has been turned hostile. Hence, prosecutrix does not deserve for any compensation from the court.
34. The testimony in the present case is clear example of misuse of due process of Case No.411/2018 State Vs. Rohit Singh Yadav 11/12 law and such kind of cases is giving wrong message in the society. Earlier, prosecutrix has lodged the complaint with the allegation of rape by the accused and further before the Magistrate she had also given the same version and in the court, she had been turned hostile. On one call entire missionary of criminal system come in active mode and in the court prosecutrix turned hostile. Hence, it is a grave misuse of process of law by the prosecutrix. Therefore, SHO is directed to take necessary action against the prosecutrix/complainant in the present case.
35. Copy of this order be sent to SHO concerned for necessary action and compliance.
36. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 25.07.2018.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Digitally signed by RAMESH RAMESH KUMAR
KUMAR Date:
2018.07.26
15:09:10 +0000
Case No.411/2018
State Vs. Rohit Singh Yadav 12/12