Delhi District Court
State vs Pankaj And Another. -:: Page 1 Of 11 ::- on 17 December, 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 : 120 of 2014.
Unique Case ID Number : 02401R0472322014.
State versus
1. Mr. Pankaj
Son of Mr.Sushil,
Resident of House No.15, Bindapur
Uttam Nagar, Delhi.
2. Mr. Gaurav
Son of Mr. R.S Ahlawat
House no. B-21,A Block, Kesho Ram Park
Uttam Nagar, Delhi.
First Information Report Number : 973/2014.
Police Station Janak Puri
Under sections 328/ 376/34 of the Indian Penal Code.
Date of filing of the charge sheet : 25.09.2014
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 31.10.2014.
Court of ASJ (SFTC)-01, West, THC, Delhi
Arguments concluded on : 17.12.2014.
Date of judgment : 17.12.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Both the accused have been produced from judicial custody.
Mr. M.S Yadav, counsel for accused Mr.Pankaj.
Mr. Vijay Dalal, counsel for accused Mr.Gaurav.
Prosecutrix in person.
Ms. Shubra Mehndiratta and Ms.Poonam Sharma, counsel for
Delhi Commission for Women.
Sessions Case Number : 120of 2014.
Unique Case ID Number : 02401R0472322014
FIR No. 973/2014, Police Station Janakpuri
Under sections 328,376/34 of the Indian Penal Code.
State versus Pankaj and another. -:: Page 1 of 11 ::-
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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.
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1. The charge sheet has been filed against two accused persons, namely Mr. Pankaj and Mr. Gaurav, by Police Station Janakpuri, Delhi for the offence under sections 328/376/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 01.09.2014 at 2.00 p.m at Jeevan Park Bus Stand, Janak Puri Area, accused Mr.Pankaj along with accused Mr.Gaurav took the prosecutrix (name mentioned in file but withheld to protect her identity) and offered her liquor and beer in a glass mixed with intoxicated material with intent to commit the offence of rape upon her in white coloured car bearing registration number DL 3CBJ 8082 in the rear seat which was driven by co-accused Mr.Gaurav and accused Mr.Pankaj raped her and accused Mr.Gaurav facilitated and abetted the commission of offence of administration of intoxicated substance in the liquor and beer and her rape by accused Mr.Pankaj.
2. After completion of the investigation, the charge sheet against both the accused persons was filed before the Court of the learned Metropolitan Magistrate on 25.09.2014 and after committal, the case has Sessions Case Number : 120of 2014.
Unique Case ID Number : 02401R0472322014 FIR No. 973/2014, Police Station Janakpuri Under sections 328,376/34 of the Indian Penal Code. State versus Pankaj and another. -:: Page 2 of 11 ::-
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been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 31.10.2014.
3. After hearing arguments, vide order dated 17.11.2014, charge for offence under sections 328 and 376 IPC was framed against accused Mr. Pankaj and charge for the offence under sections 328/376/109 IPC was framed against accused Mr. Gaurav to which they pleaded not guilty and claimed trial
4. In order to prove its case, the prosecution has examined the prosecutrix as PW1.
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 about 5-6months ago she had met accused Mr.Pankaj in the weekly market/Som Bazar near her house and gradually, friendship developed between them. She had met accused Mr.Gaurav through accused Mr.Pankaj about 4-5months ago. On 01.09.2014 accused Mr.Pankaj had telephoned her on her mobile phone and Sessions Case Number : 120of 2014.
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asked her to meet him at Jeevan Park bus stand and at about 3.00 p.m. she reached the bus stand Jeevan Park where accused Mr.Pankaj met her along with his friend accused Mr.Gaurav. They had come in the car belonging to accused Mr.Gaurav. From there, they all three went to District Centre, Janak Puri in the car being driven by accused Mr.Gaurav where they roamed around in the market and thereafter, she was dropped by both the accused near Axis Bank Janak Puri and she was not dropped in her house by them. While getting down, she had some arguments with both the accused persons as to why they were not dropping her in her house. There were four or five persons standing there who had seen them fighting. Some one had made complaint to the police and after two days of this incident, police came to her house and she was taken to Police Station Janak Puri where under pressure of the police, she had made a statement against both the accused persons as she was told by the police that if she does not level serious allegations against the accused persons, they would not be convicted. She did not remember the name and designation of the police official under whose pressure she had given her statement to the police. Her parents had also accompanied her to Police Station Janak Puri at the time of lodging of the complaint. Her statement was recorded by the police (Ex. PW1/A) and she was taken to DDU hospital by the police for her medical examination where her internal examination was conducted by the doctor and thereafter, both the accused persons were arrested and accused Mr.Pankaj was arrested by the police vide arrest memo (Ex. PW1/B). She was produced before learned Metropolitan Magistrate where her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex. PW1/C) was recorded. She has Sessions Case Number : 120of 2014.
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voluntarily stated that she had made this statement under the pressure of the police. The police had prepared site plan (Ex. PW1/D) of the place from where she was picked up by both the accused persons in the car of accused Gaurav. The police had prepared site plan (Ex.PW1/E) of the place from where she was dropped up by both the accused persons from the car of accused Gaurav. The police had prepared site plan (Ex.PW1/F) of the place which shows the liquor shop from where accused Mr.Pankaj had purchased the liquor and she along with accused Mr.Pankaj had consumed it. Both the accused persons have not committed any offence against her and she has prayed that they may be acquitted as they are innocent.
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 Additional Public Prosecutor, the prosecutrix has admitted that her statement (Ex. PW1/A) and her statement under section 164 of the Cr.PC (Ex. PW1/B) contain very serious allegations of rape against both the accused persons. She has voluntarily stated that she had made both the statements under pressure of a police official who had compelled her to level serious allegations of rape.
However, the accused persons have not committed any offence. She had not made any complaint to any authority against that police official as she did not know his name and designation. She has denied the suggestion that she had given her statement to the police and learned Metropolitan Sessions Case Number : 120of 2014.
Unique Case ID Number : 02401R0472322014 FIR No. 973/2014, Police Station Janakpuri Under sections 328,376/34 of the Indian Penal Code. State versus Pankaj and another. -:: Page 5 of 11 ::-
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Magistrate voluntarily and not under the pressure of the police. She has further denied that she was deposing falsely to this effect. She has denied the suggestion that on 01.09.2014 at about 2.00 p.m at Jeevan Park bus stand, both the accused persons took her in the car bearing registration number DL 3C BJ 8082 being driven by accused Mr.Gaurav and accused Mr.Pankaj offered her liquor and beer in a glass with intoxicated material which she consumed the same and thereafter accused Mr.Pankaj raped her on the rear seat of the car. She has denied the suggestion that she was not supporting the prosecution case and deposing falsely as she had settled the matter with both the accused persons.
9. In her cross examination by accused Mr.Pankaj, she has admitted that he has not committed any offence and has not served her intoxicant in liquor and has not raped her. She has admitted that accused Mr.Pankaj is innocent and has again prayed that the accused may be acquitted.
10. In her cross examination by accused Mr.Gaurav, she has admitted that he has not committed any offence and he is innocent. She has again prayed that the accused may be acquitted.
11. The prosecutrix, PW1 has not deposed an iota of evidence of her being raped by accused Mr. Pankaj who along with his accomplice namely accused Mr.Gaurav took the prosecutrix, offered her liquor and beer in a glass mixed with intoxicated material and raped her. The prosecutrix, PW1 has not deposed an iota of evidence that accused Mr. Gaurav who along with accused Mr.Pankaj took the prosecutrix and facilitated and abetted the Sessions Case Number : 120of 2014.
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commission of offence of administration of intoxicated substance in the liquor and beer by accused Mr.Pankaj for the commission of offence of rape by accused Mr.Pankaj. She has not even mentioned the word "rape" by accused Mr. Pankaj nor facilitation and abetment by accused Mr.Gaurav of the commission of offence of administration of intoxicated substance in the liquor and rape by accused Mr.Pankaj in her evidence nor has deposed anything incriminating against them. In fact, she has deposed that both of them are innocent and has not attributed any criminal role to them. She has even prayed for their acquittal.
12. 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 persons, 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.
13. Statements under section 313 of the Cr.P.C of both the accused are dispensed with as there is nothing incriminating against them when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
14. I have heard arguments at length. I have also given my Sessions Case Number : 120of 2014.
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conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
15. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the most material witness, 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."
16. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
17. Consequently, no inference can be drawn that accused are guilty of committing any offence. There is no material on record to suggest that the prosecutrix was ever raped by accused Mr. Pankaj after he served her intoxicated substance in drink. There is no material on record to suggest that accused Mr. Gaurav facilitated and abetted the commission of offence of administration of intoxicated substance in the liquor and rape by accused Pankaj. There is no incriminating evidence against them. In fact, the prosecutrix has deposed that accused Mr.Pankaj has not raped her. Even, accused Mr. Gaurav is innocent and has not committed any offence against her. She has prayed for their acquittal.
Sessions Case Number : 120of 2014.
Unique Case ID Number : 02401R0472322014 FIR No. 973/2014, Police Station Janakpuri Under sections 328,376/34 of the Indian Penal Code. State versus Pankaj and another. -:: Page 8 of 11 ::-
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18. 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 persons have not committed any offence against her. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
19. Consequently, no inference can be drawn that accused Mr. Pankaj is guilty of the charged offences under sections 328 and 376 IPC There is no material on record to show that on 01.09.2014 at 2.00 p.m at Jeevan Park Bus Stand, Janak Puri Area, accused Mr.Pankaj along with ac- cused Mr.Gaurav took the prosecutrix and offered her liquor and beer in a glass mixed with intoxicated material with intent to commit the offence of rape upon her in white coloured car bearing registration number DL 3CBJ 8082 in the rear seat which was driven by co-accused Mr.Gaurav and ac- cused Mr.Pankaj raped her.
20. Consequently, no inference can be drawn that accused Mr. Gaurav is guilty of the charged offences under sections 328/376/109 IPC. There is no material on record to show that on 01.09.2014 at 2.00 p.m at Jeevan Park Bus Stand, Janak Puri Area, accused Gaurav along with ac- cused Mr.Pankaj took the prosecutrix in white coloured car bearing regis- tration no. DL 3CBJ 8082 in the rear seat which was driven by accused Gaurav and he facilitated and abetted the commission of offence of admin-
Sessions Case Number : 120of 2014.
Unique Case ID Number : 02401R0472322014 FIR No. 973/2014, Police Station Janakpuri Under sections 328,376/34 of the Indian Penal Code. State versus Pankaj and another. -:: Page 9 of 11 ::-
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istration of intoxicated substance in the liquor and beer to the prosecutrix and her rape by accused Mr.Pankaj.
21. From the above discussion, it is clear that the case of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offence of intoxication and rape against accused Mr.Pankaj and the prosecution has failed to establish ahainst accused Mr.Gaurav the offence of facilitation and abetment of offence of intoxication and rape of the prosecutrix by accused Mr.Pankaj. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. In fact, the prosecutrix has deposed that accused Mr Pankaj and Mr. Gaurav are innocent and have not committed any offence against her.
22. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge for the offence under sections 328 and 376 of the IPC against accused Mr.Pankaj and the charge for the offence under sections 328, 379 and 109 of the IPC against accused Mr.Gaurav due to complete lack of evidence.
23. Consequently, the accused, Mr. Pankaj is hereby acquitted of the charge for the offence under sections 328 and 376 of the IPC and Mr. Gaurav is hereby acquitted for the offence under sections 328, 376 and 109 of the IPC.
Sessions Case Number : 120of 2014.
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24. Compliance of section 437-A Cr.P.C. is made in the order sheet.
25. Case property be destroyed after expiry of period of limitation of appeal.
26. 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.
27 One copy of the judgment be given to the Additional Public Prosecutor, as requested.
28. 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 17th day of December, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
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Unique Case ID Number : 02401R0472322014 FIR No. 973/2014, Police Station Janakpuri Under sections 328,376/34 of the Indian Penal Code. State versus Pankaj and another. -:: Page 11 of 11 ::-