Delhi District Court
State vs . Deenanath Page No. 1/16 on 14 September, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SOUTH EAST, SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0291432015
SC No. : 2105/16
FIR No. : 1010/15
U/s. : 342/376/506 IPC
PS : Govindpuri, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Deenanath
S/o Shri Harish Chand
R/o House no. J34,
Dayal Singh Colony,
Near Okhla Railway Station
New Delhi .........................Accused
Date of Institution : 03.10.2015
Judgment reserved for orders on : 14.09.2017
Date of pronouncement : 14.09.2017
J U D G M E N T
Facts:
1. On 28.07.2015, the prosecutrix (name withheld to protect her identity) sent a complaint to the police station Govind Puri, New Delhi alleging FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 1/16 therein that accused Deenanath used to tease her and threaten her family members. Some days ago, he called her at fish market, Navjeevan Camp and asked her to go with him giving threats that he would kill her family members. Due to fear, she went with him. He took her to his sister's house at Azadpur where for about 10 days, he committed sexual intercourse with her forcibly. Whenever she refused, he beat her. On 10.07.2015, she managed to run away from there, came to her parents and told them the whole incident. They, however, did not take any police action for their honour and reputation. Now, she has mustered courage to make the complaint.
Investigation:
2. On receipt of the complaint, SI Kiran Sood went to the house of the prosecutrix at Navjeevan Camp, Kalkaji and got the prosecutrix counseled. She got registered the case against the accused u/s 342/376/506 IPC. She got the prosecutrix medically examined at AIIMS. The doctor found her hymen not intact. Her statement u/s 164 Cr.P.C. was got recorded. On 03.08.2015, the accused was arrested. He was got medically examined for his potency. The doctor found him capable of performing sexual intercourse under normal circumstances. After the investigation, the accused was sent for the trial for the offences punishable u/s 342/376/506 IPC.
Charge:
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 04.11.2015, prima facie case was made out against the accused for the offences punishable FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 2/16 u/s 366/344/376(2)(n)/506 IPC. Charge was framed. The accused pleaded not guilty and claimed trial.
Prosecution Evidence:
4. To substantiate its allegations against the accused, prosecution examined as many as ten witnesses.
PW1 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence.
PW2 Meera is the sister of the accused. She stated that she does not have visiting terms with her parents and brothers for 20 years. She has been living with her husband and children. Her jhuggi comprises of one room only. She stated that she has not met the accused for many years and she does not know anything about this case. She was declared hostile by the prosecution but nothing favouring the prosecution came from her mouth.
PW3 is the mother of the prosecutrix. I will discuss her testimony at the time of appreciation of evidence. PW4 Dr. Karthik did the medical examination of the prosecutrix vide MLC Ex.PW1/B. He recorded the history of incident at point C to C on the narration of the prosecutrix and found her hymen FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 3/16 not intact.
PW5 ASI Yad Ram proved the recording of FIR Ex.
PW5/A. PW6 Ms. Neha, Ld. MM recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/C. PW7 Dr. Asit Kumar Sikary, Assistant Professor did the medical examination of the accused vide MLC Ex.PW7/A and found him capable of performing sexual intercourse under normal circumstances.
PW8 Ct. Dharmender was with the IO during the investigation of this case.
PW9 Ct. Chhuttan witnessed the arrest of the accused vide memo Ex.PW1/D. PW10 Insp. Kiran Sood was the Investigating Officer of the case. She deposed on the lines of the investigation. On 31.07.2015, she went with Ct. Kavita to A13, Navjeevan Camp, Govindpuri and met the prosecutrix. She got her counseled at her house. She made endorsement Ex.PW10/A on the complaint and got the case registered. She took the prosecutrix to AIIMS and got her medically examined vide MLC Ex.PW1/B. She prepared site plan Ex.PW10/B and got the statement of the prosecutrix recorded u/s 164 Cr.P.C. On 03.08.2015, she arrested the accused vide memo FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 4/16 Ex.PW1/D and got him medically examined in AIIMS. On 05.08.2015, she inspected the spot and prepared the site plan Ex.PW10/D. Statement of The Accused U/s 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him. He stated that he used to live near the house of the prosecutrix. He never took her to Azadpur nor confined her nor threatened her nor abused her nor made any obscene video. She wanted to marry him but he was not interested to marry her. She had run away from her native place at Balia and come to his parents house at Basti, Gorakhpur. His parents talked to her parents and sent her back. He stated that he never made any relation with her nor abducted her nor took her to his sister's house and she has falsely implicated him to pressurize him to marry her which he never wanted.
Defence Evidence:
6. In defence, the accused did not examine any witness. Arguments & Contentions:
7. I have heard the arguments advanced by Ld. Counsel Sh. Naveen Kumar for the accused and Ld. Addl. PP Sh. Mohd. Iqrar for the State and perused the record of the case.
Findings:
8. The accused has been charged with the offences of abduction with the intention to compel the prosecutrix to marry him and seduce her to illicit intercourse, wrongfully confining her in the house of his sister at FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 5/16 Azadpur for more than 10 days, committing rape and criminally intimidating the prosecutrix. As such, before adverting to the merits of the case, a reproduction of the definition of the offences would be necessary and relevant.
9. Abduction in common language means carrying away of a person by fraud or force. According to Section 362 IPC, abduction takes place when a person by force compels, or by any deceitful means induces another person, to go from any place. Abduction pure and simple is not an offence. It is an auxiliary act not punishable in itself but when it is accompanied by a certain intention to commit another offence, it perse becomes punishable as an offence. If the abducted person is a woman and the intention is that she may be compelled, or is likely to be compelled, to marry any person against her will, or may be forced or seduced to illicit intercourse, or is likely to be so forced or seduced, section 366 IPC applies.
The offence has the following ingredients:
(i). Kidnapping or abducting any woman;
(ii). Such kidnapping or abducting must :
a. With intent that the woman may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or b. In order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse; or c. By criminal intimidation, or abuse of authority, or by compulsion inducing any woman to go from any place, with the intent that she may be or with knowledge that it is likely that she will be forced or seduced to illicit intercourse with some person.
FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 6/16
10. Section 344 provides that whoever wrongfully confines any person for ten days, or more, shall be punished ........
11. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) .............
(c) .............
(d) .............
under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. .........................
Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
12. Section 506 IPC provides that whoever commits the offence of FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 7/16 criminal intimidation shall be punished ..... Criminal intimidation as defined u/s 503 IPC means that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
13. PW1 / prosecutrix has stated that about two years ago, she had been living at Dayal Singh Colony, Ishwar Nagar with her parents. The accused, her neighbour used to tease her when she used to go for tuition. One day when she was returning home from tuition, he met her on the way and slapped her. He insisted to go with him but when she refused, he beat her. He forcibly made her sit in a TSR and took her to his sister's house at Azadpur, kept her there for 10 days and forcibly made physical relations with her. With great difficulty, on 10.07.2015, she managed to flee away from there and came to her parent's house and narrated them the whole incident. Due to fear of the accused as he used to abuse and threaten her parents, they did not make the complaint. She stated that the accused had also prepared her obscene video and threatened her to upload it on the net. Because of honour and reputation, her parents did not make the complaint. When the accused started calling and pressurizing her, she made the complaint Ex.PW1/A. She proved her MLC Ex.PW1/B and her statement u/s 164 Cr.P.C. Ex.PW1/C. In her crossexamination, she stated that she does not remember the FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 8/16 mobile number which she was using at the time of incident. She stated that the mobile used to be with her during that period. She stated that she never complained to the police regarding the accused chasing and teasing her when she used to go to tuition. She stated that her parents had made complaint with the police earlier but the police did not take any action. She admitted that the area of fish market is a crowded area and there is a police booth near the fish market and police used to remain there. She admitted that when the accused took her in the TSR, many persons were present in the market. She stated that at that time, she was not carrying the mobile. She admitted that they used to visit the house of the accused and they had attended the marriage of his sister. She admitted that a quarrel had taken place between her parents and the parents of the accused and thereafter they shifted from Dayal Singh Colony to Govind Puri. She denied that she wanted to marry with the accused but her parents did not want her to marry with the accused. She admitted that there were jhuggi near the jhuggi of his sister where she was confined. She stated that there was no toilet in the jhuggi and the persons living there used to use public toilet. She stated that she did not tell anyone about her confinement whenever she went to the public toilet. She also admitted that the area where she was confined was a populated area. She admitted that the public toilet used to be under the care of care taker. She admitted that she used to take bath and wash her clothes daily and during that period, she did not talk to her family members or her relatives. She denied that she wanted to marry with the accused and her parents were opposing, a quarrel took place between her family and the family of the accused and she falsely implicated him in this FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 9/16 case.
14. PW3 / mother of the prosecutrix has stated that her daughter used to study in 12th class in 2015. In July 2015, she went to her school but did not return. They searched for her but she was not found. They went to the police station but the police did not register their complaint. After 10 days, she returned home and told her that the accused after giving her threats had taken her to the house of his sister at Azadpur where he committed rape upon her after confining her.
15. In her crossexamination, she admitted that the day on which the prosecutrix went missing, she was in the house. Her second daughter is of 16 to 17 years of age. She did not inform her husband about the missing of her daughter nor she made complaint at 100 number. She denied that she and her family members used to visit the house of the accused. She also denied that her daughter wanted to marry with the accused but they were opposed to the marriage. She denied that no such incident took place.
16. On a closure scrutiny of the evidence of the prosecutrix / PW1 and her mother / PW3, I find that the accused and the prosecutrix were neighbours. The prosecutrix knew the accused from before. Their families used to visit each other's house and had relations. She at the time of alleged incident had been studying in 12th class. Her younger sister was studying in 11th class.
17. PW1 in her complaint had alleged that the accused had called her at fish market, Navjeevan Camp and asked her to go with him giving threats that he would kill her family members. Due to fear, she went with him. In her testimony, she has stated that when she was returning home from FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 10/16 tuition, accused met her on the way and slapped her. He insisted to go with him but when she refused, he forcibly made her sit in a TSR and took her to his sister's house at Azadpur. She has admitted that the area of fish market is a crowded place and there is a police booth near the fish market and police used to be there. Question arises why the prosecutrix did not raise alarm nor told the TSR driver when she was being taken forcibly from the fish market in the TSR. The distance from Kalkaji to Azadpur is about 30 k.m. It is strange that even during the journey, she did not raise alarm nor complained to anyone that she was being abducted by the accused.
18. PW1 / prosecutrix has stated that the accused had taken her to his sister's house at Azadpur where he forcibly confined her for 10 days. He used to commit rape upon her and beat her. PW2, the sister of the accused has stated that she did not have visiting terms with her parents and brothers for about 20 years. She has been living in a jhuggi of one room with her husband and children. She has stated that she has never met the accused for many years. PW1 has admitted that the jhuggi of his sister was situated in a crowded place, there was no toilet in the jhuggi and the persons living in the jhuggis used to use public toilet, which used to under the care of care taker. She has admitted that she used to use that public toilet, take bath and wash her clothes. It is strange that during the period of 10 days, when she was allegedly confined, she did not complain to anyone including the care taker regarding her abduction and wrongful confinement nor tried to run away from there. It is not the case that the prosecutrix was illiterate. She had been studying in 12th class. Her testimony reveals that she knew that if FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 11/16 any crime happens, the police can be informed at 100 number. Question arises why she not informed from Azadpur where she was allegedly kept that she was wrongfully confined and subjected to rape by the accused. She is inconsistent if during that period, she was carrying the mobile phone or not. She gave the evasive answer that she does not remember her mobile number which she was using at the time of incident.
19. PW1 has stated that she came to her house on 10.07.2015 but in the instant case, the complaint Ex.PW1/A was sent by post on 28.07.2015. The explanation given by the prosecutrix or her mother that due to fear of the accused and for their honour and reputation, they did not make the complaint, does not inspire confidence. Although the prosecuterix has deposed that prior to the complaint, her parents had made written complaint against the accused at the police station Govind Puri and no action was take but there is no record to substantiate this fact In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive evidence contributes to the doubt in the prosecution case. In the case of Vijayan vs. State of Kerala (2008) 14 SCC 763, the incident took place seven months prior to the date of lodging of complaint. No complaint or grievance was made either to the police or to the parents prior thereto. It was held that in cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supportive evidence like the FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 12/16 medical report or any other injury on the body of the prosecutrix so as to show the sign of rape.
20. PW1 has stated that she was confined by the accused for more than days. PW3 has stated that when the prosecutrix did not return home, they searched for the prosecutrix but she was not found. She, however, admitted that she did not inform her husband about the missing of the prosecutrix. I failed to understand why she not informed her husband. It was a serious matter. The explanation given by PW3 that they had gone to the police station to make the complaint but their complaint was not registered, appears to be not plausible and worthy of credence. PW10 has stated that she did not receive any complaint either of the prosecutrix or her family members prior to 28.07.2015. In the instant case a letter dated 06.04.2013 and CD was handed over by the accused in the Court of Ld. Metropolitan Magistrate to the IO but no investigation was done on the said letter or the CD. No explanation came from the IO why it was not done though in the chargesheet, it is mentioned that supplementary chargesheet would be filed qua the call details and the documents given by the accused during the investigation but no supplementary charge sheet was filed.
21. In the complaint Ex.PW1/A which was made after about 10 days, there is no mention of accused making the obscene video of the prosecutrix. She made the allegations regarding making of obscene video for the first time when her statement u/s 164 Cr.P.C. was recorded. Testimony of PW10 / IO reveals that no obscene video was recovered from the possession or at the instance of the accused. Even the IO did not seize the mobile phone of the accused to send it to FSL to know if any obscene FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 13/16 video was prepared by the accused. The defence taken by the accused that the prosecutrix wanted to marry with the accused but her parents were opposed to the marriage and it resulted into quarrel, appears to be plausible. Even the testimony of the prosecutrix is not of sterling quality to base the conviction of the accused.
22. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
23. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 14/16 record, he cannot be convicted for an offence.
24. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
Conclusion
25. In the light of what has been stated above, I am of the view that the prosecution has failed to establish its case against the accused beyond reasonable doubt. I therefore, acquit the accused Deenanath of the offences punishable under section 366/344/ 376(2)(n) and 506 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish FIR No. : 1010/15 PS : Govindpuri State Vs. Deenanath Page No. 15/16 bail bond in the sum of Rs. 25,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
26. File be consigned to the Record Room.
Announced in the open
court today i.e. 14.09.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 1010/15
PS : Govindpuri
State Vs. Deenanath Page No. 16/16