Delhi District Court
And Directions Of Supreme Court In ... vs . Puttraj 2004 (1) on 17 April, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
SC No. 29074/2016
Assigned to Sessions. 30.11.2016
Arguments heard on 09.04.2018
Date of Judgment 17.04.2018
FIR No. 137/2016
State V Pankaj Dagar S/o. Kalachand, R/o.
VPO Prahlad Pur Bangar, Delhi.
Police Station Maurice Nagar
Under Section 376 IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Maurice Nagar had
filed a challan vide FIR No.137/2016 dated 20.07.2016 u/s. 376 IPC for the
prosecution of accused 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.
BRIEF FACTS OF THE CASE:
2. The criminal law set into motion on the handwritten complaint of the prosecutrix, Ex.PW1/A wherein she has stated that on the eve of 04.07.2016, SC No.29074/2016 State Vs. Pankaj Dagar 1/22 Pankaj Dagar met her at faculty of law, University of Delhi. He promised her to get readmission in her B. Com(Hons.), final year course, University of Delhi. It is further stated in the complaint that he took her through the dark & narrow lanes of Gurmandi promising her to arrange the meeting with the concerned person. He took her to an unknown apartment, which she has never seen before. He told his friend to move out & leave him alone.
3. It is further stated by the prosecutrix in her complaint that he offered her a glass of water, after drinking which she felt dizzy & unconscious and he locked the door, without her permission & switched off all the lights around.
4. It is further stated by the prosecutrix that she was not in her proper senses he disrobed her & put his fingers inside her vagina, forcefully, much like a rapist. Then on denying, he spanked her hard on her face & she fell on the floor.
5. It is further stated by the prosecutrix in her complaint that he was misusing her, he wanted to puke out & tell him that she wanted to use the washroom, some how managed to escape his clothes. It is further stated by the prosecutrix in her complaint that these culprits of the society should be removed from the society and hanged to death. In the aforesaid complaint, she sought legal action against the accused. On the basis of aforesaid statement Ex.PW1/A, FIR No.137/2016 dated 20.07.2016 u/s 376 IPC was registered and accused was charge sheeted.
6. During the course of investigation, prosecutrix was medically examined in Hindu Rao Hospital, she was also produced in the court of Ld. Magistrate and her statement u/s 164 Cr.P.C. was recorded wherein she made allegation against the accused. During the investigation, accused was arrested and his SC No.29074/2016 State Vs. Pankaj Dagar 2/22 medical examination was conducted. As per opinion of doctor he was found to be capable of performing sexual intercourse. I.O. also collected and examine the call details of mobile phone of prosecutrix and accused.
CHARGE:
7. On the basis of material available on record, this court vide order dated 09.01.2017 framed charge against accused Pankaj Dagar for the offence punishable u/s.376 IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
8. In order to prove its case prosecution examined 17 witnesses namely PW1 ASI Meghnath, PW2 Prosecutrix 'CD', PW3 Ct. Bal Yogeshwar, PW4 Smt. Tarlochan Kaur, PW5 Sh. Anurag Sharma, PW6 HC Sompal Singh, PW7 ASI Sanjeev Kumar, PW8 Sh. Ashutosh Aggarwal, PW9 Ms. Haripriya Bajwa, PW10 Dr. Amit Sharma, PW11 Sh. Sukhvir Singh, Nodal Officer, Idea Cellular Ltd., PW12 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd., PW13 W/Insp. Arti Sharma, PW14 W/ASI Vimlesh, PW15 Dr. Iftiquar Khan, PW16 Dr. M.K. Panigrahi and PW17 W/SI Gurdeep Kaur.
9. PW1 ASI Meghnath is a formal witness being Duty Officer. This witness has proved rukka vide, computerized copy of the FIR vide Ex.PW1/B (OSR), endorsement on the rukka vide Ex.PW1/C and certificate u/s 65B of Evidence Act qua the present FIR vide Ex.PW1/D.
10. PW2 Prosecutrix 'CD', is a material witness being victim and complainant. She testified that in the year 2016, she was doing B. Com (Hons.) from Aditi College, Delhi University, Delhi. She deposed that accused Pankaj Dagar has SC No.29074/2016 State Vs. Pankaj Dagar 3/22 affiliation with ABVP and accused had met her in the Law Faculty, Campus Law Center in the office of Delhi University Student's Union. This witness has correctly identified the accused.
11. She deposed that she had gone to Delhi University Student's Union Office to make inquiry regarding completion of her B. Com. course as she could not complete her course as she was having four backlogs papers.
12. She further deposed that accused met her on 04.07.2016 and talked to her and assured her that he would take her to the concerned persons to get solve her problem.
13. She further deposed that on the same day in between 07.00 pm to 08.00 pm accused took her to some unknown place by TSR. Again said by Cab. She deposed that it was very dark area and it was a first floor Flat. Again said second floor. She further deposed that when they reached there one unknown person was already present in the Flat and that accused sent that person out of the Flat by saying some words. She could not hear as it was not audible.
14. She further deposed that accused was under bit of influence of intoxication.
Thereafter, accused bolted the door from inside and accused also switched off the lights, then he started disrobing her. PW2 further deposed that prior to disrobing he gave her a glass of water. After drinking the water she felt giddiness, then accused started disrobing her. She started screaming for help, then accused pinned her down on the floor. She further deposed that accused also threatened her that he would not let her live. Thereafter, accused inserted his finger in her genital. She again started screaming for help. She further SC No.29074/2016 State Vs. Pankaj Dagar 4/22 deposed that accused also tried to sexually assault her by attempting penetrate her. Since she wanted to save herself and leave that place as she was willing to go to washroom as she thought that there might be some other back door to escape from the Flat. However, she escaped from the main entrance of the Flat. She further deposed that she does not know what accused was doing at that time when she had gone to washroom and escaped from the Flat.
15. She further deposed that she went to her room after escaping from the said Flat and that on that day she was terrified, therefore, she could not go to police station to lodge complaint against the accused. She did not tell the incident to anyone. She deposed that finally, on 20.07.2016 she made complaint already Ex.PW1/A against the accused. This witness has proved her MLC vide Ex.PW2/A. She further deposed that she had also narrated the incident to the doctor who had conducted her medical examination.
16. PW2 has proved her statement u/s 164 Cr.P.C. vide Ex.PW2/B. This witness has proved arrest memo of accused vide Ex.PW2/C and his personal search memo vide Ex.PW2/D.
17. On being cross examined by Sh. Shitez Sharma, ld. counsel for accused, this witness deposed that she had stated to the police in her statement already Ex.PW1/A that she was doing B.Com from Aditi College and that accused was affiliated with Akhil Bhartiya Vidya Parishad and that she had gone to DUSU office as she had not completed her B.Com. Confronted with statement already Ex.PW1/A, wherein it is not so recorded.
18. This witness further deposed that she had stated to the police in her statement SC No.29074/2016 State Vs. Pankaj Dagar 5/22 already Ex.PW1/A that accused had taken Rs.500/ from her towards transportation and that accused had taken her to some unknown place in a Cab at Second Floor and that when they reached there one unknown person was already present in the Flat and that accused sent that person out of the Flat by saying some words and that she could not hear as it was not audible and that accused was under bit of influence of intoxication and that she started screaming for help, then accused pinned her down on the floor and that accused also threatened her that he would not let her live and that she again started screaming for help and that accused also tried to sexually assault her by attempting penetrate her. Confronted with statement already Ex.PW1/A, wherein it is not so recorded.
19. She further deposed that she had stated to the police in her statement already Ex.PW1/A that she went to her room after escaping from the said Flat and that on that day she was terrified, therefore, she could not go to police station to lodge complaint against the accused and that she did not tell the incident to anyone and that her signature was inadvertently left out on the said complaint. Confronted with statement already Ex.PW1/A, wherein it is not so recorded.
20. This witness had denied to suggestion that no such incident had happened with her or that she had made a false complaint against the accused or that she has made improvements in her statements before the court. This witness had denied to suggestion that accused had not taken her by Cab.
21. This witness admitted that the place of occurrence is a residential area and the peoples are residing there. Nobody from the neighborhood came to her rescue. This witness had denied to suggestion that she never said to the police that she can show the place of incident or that she did not led the police to the place of SC No.29074/2016 State Vs. Pankaj Dagar 6/22 incident or that she had refused for her medical examination to the doctor as no such incident had happened with her.
22. This witness admitted that she had given two mobile phone numbers of the accused i.e. 9871569487 and 9540227455 to the police. Her mobile phone number is 9990124756.
23. She deposed that on 17.06.2016 she had talked with accused for about 23 seconds and 258 seconds, on 18.06.2016 she had also talked with accused for about 147 seconds and 207 seconds, on 19.06.2016 she had also talked with accused for 11 times, on 20.06.2016 she had also talked with accused for 5 times, on 21.06.2016 she had also talked with accused for 2 times, on 21.06.2016 she had also talked with accused for once, on 23.06.2016 she had also talked with accused for 7 times, on 24.06.2016 she had also talked with accused for 2 times, on 25.06.2016 she had also talked with accused for 3 times, on 27.06.2016 she had also talked with accused for 9 times, on 28.06.2016 she had also talked with accused for 7 times, on 01.07.2016 she had also talked with accused for 2 times, on 03.07.2016 she had also talked with accused for 5 times and on 05.07.2016 she had also talked with accused for 3 times.
24. She deposed that she did not send messages to the accused either prior to the incident or after the incident. This witness had denied to suggestion that she had sent vulgar messages to the accused or that she was intending to establish relation with the accused or that accused refused for the same or that he did not serve her glass of water due to which she lost her control or that he was not arrested in her presence.
SC No.29074/2016 State Vs. Pankaj Dagar 7/2225. PW3 Ct. Bal Yogeshwar has proved rukka vide Ex.PW1/A and FIR vide Ex.PW1/B.
26. PW4 Smt. Tarlochan Kaur deposed that he is the registered owner of house no.
A8/55, double storey, Vijay Nagar, Delhi. Sometime in October, 2013 she had let out one room set, second floor of house no. A8/55 to Sh. Anurag and Sh. Rahul @ Rs.7000/ per month vide rent agreement. This witness deposed that earlier he had given two rooms set on rent to aforesaid Anurag and Rahul @ Rs.10,500/ per month for 11 months vide rent agreement Ex.PW4/A. Though the agreement was for 11 months, but it was continued by Anurag as a tenant in one room set of the aforesaid premises. However, Rahul had left the premises after 34 months of the tenancy from the company of Anurag.
27. This witness further deposed that pursuant to the notice u/s 91 Cr.PC she had given the copy of the aforesaid rent agreement, her voter ID, tenant verification of Sh. Anurag Sharma along with his ID to the polic vide Ex.PW4/A, Ex.PW4/B, Ex.PW4/C and Ex.PW4/D respectively. (original of tenant verification seen and returned). This witness has proved the aforesaid notice u/s 91 Cr.PC duly received by him vide Ex.PW4/E.
28. PW5 Sh. Anurag Sharma has deposed that on 01.10.2013, he along with his friend namely Rahul had taken one room set on the second floor of premises no. 8/55, double storey, Vijay Nagar, Delhi on rent @ Rs.10500/ per month from Smt. Tarlochan Kaur. Rent agreement for 11 months was also executed in this regard vide Ex.PW4/A. He had not appended his signature on the said agreement. Though the agreement was for 11 months but they had extended SC No.29074/2016 State Vs. Pankaj Dagar 8/22 their tenancy at the said premises till October or November, 2016. During those period she was doing preparation for competitive examination. His friends used to visit his room and none of his friend had visited his room in his absence. He further deposed that sometime he used to keep the key of his room under the brick or at the top of the door. He further deposed that accused, Pankaj Dagar, present in the court also used to visit his room and that accused never visited his room in his absence.
29. This witness deposed that probably on 29/30.06.2016, he had gone to his native place having the key of his room with him and that when he returned to his room, he came to know about the present case against the accused.
30. On being cross examined by Sh. A.T. Ansari, Ld. Addl. PP for State, this witness admitted that his friends knew that he used to keep the key of his room under the brick or at the top of the door of the room. This witness had denied to suggestion that before leaving to his native place he had hide the key of his room as stated by him or that on 04.07.2016 his friend accused Pankaj Dagar along with prosecutrix visited his room and after opening its door from the key kept by him there, stayed there. This witness had denied to suggestion that he had also stated this fact in his statement Ex.PW5/A. Confronted with the statement Ex.PW5/A wherein said facts are mentioned at point A to A.
31. PW6 HC Sompal Singh has taken the accused Pankaj Dagar to Hindu Rao Hospital and got his medical examination conducted vide MLC Ex.PW6/A. The doctor who had conducted medical examination of the accused had also handed over him the exhibits pertaining to him including his clothes in sealed condition along with sample seal, which he handed over to the IO, who seized the same vide seizure memo Ex.PW6/B. SC No.29074/2016 State Vs. Pankaj Dagar 9/22
32. PW7 ASI Sanjeev Kumar has proved relevant entries at Sr. No.854 of register no.19 vide Ex.PW7/A.
33. PW8 Sh. Ashutosh Aggarwal has deposed that he has been authorized by the Principal of college to produce the relevant original documents related to the admission of the prosecutrix at their college namely Aditi Mahavidyalaya, University of Delhi, Auchandi Road, Bawana, Delhi110039. His authority letter in this regard vide Ex.PW8/A. He deposed that the aforesdaid documents were handed over to the police by Sh. V.P. Tiwari, Administrative Officer of the College vide forwarding letter Ex.PW8/B.
34. This witness has brought the originals of admission form, OMR sheet, provisional certificate and character certificate of the prosecutrix and proved the copy of the same vide Ex.PW8/C, Ex.PW8/D, Ex.PW8/E and Ex.PW8/F respectively (OSR).
35. This witness has proved photocopy of Sr. Secondary school marksheet, admission card of the prosecutrix of 10th class and 12th class and photocopy of admission register vide marked as MarkA, MarkB, MarkC and MarkD respectively.
36. PW9 Ms. Haripriya Bajwa has proved MLC of prosecutrix vide Ex.PW2/A on behalf of Dr. Gargi Pal. This witness deposed that she has seen the MLC vide Ex.PW2/A qua the medical examination of the prosecutrix conducted by Dr. Gargi Pal on 20.07.2016.
37. PW10 Dr. Amit Sharma has proved MLC of accused vide Ex.PW10/A. SC No.29074/2016 State Vs. Pankaj Dagar 10/22
38. PW11 Sh. Sukhvir Singh, Nodal Officer, Idea Cellular Ltd., has produced CDR, Ex.PW11/C pertaining to mobile phone number, 9990124756 for the period from 01.08.2015 to 31.07.2016 which was in the name of prosecutrix. He also produced the certified copy of customer application form along with ID proof, Ex.PW11/D. PW11 has also produced CDR Ex.PW11/A pertaining to another mobile phone number 9540227455 which was found in the name of accused. He also produced the certified copy of customer application form alongwith ID proof, Ex.PW11/B. PW11 has also produced the cell ID chart Ex.PW11/F and also gave certificate under section 65 B of the Indian Evidence Act regarding correct contents of CDR, Ex.PW11/E.
39. PW12 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd., has produced CDR Ex.PW12/A pertaining to another mobile phone number 9871569487 which was found in the name of accused as alloted to accused on 04.01.2016. He also produced the certified copy of customer application form alongwith ID proof, Ex.PW12/C. PW12 has also produced the cell ID chart Ex.PW12/E and also gave certificate under section 65 B of the Indian Evidence Act regarding correct contents of CDR, Ex.PW12/D.
40. PW13 W/Insp. Arti Sharma deposed that on 20.07.2016, prosecutrix came to police station and handed over her a written complaint already Ex. PW1/A. She made endorsement at point B to B bearing her signature at point C on the said complaint and assigned the investigation to W/SI Vimlesh.
41. PW14 W/ASI Vimlesh is the investigating officer. She has deposed on the lines of investigation. She deposed that she collected the copy of FIR and SC No.29074/2016 State Vs. Pankaj Dagar 11/22 rukka from the duty officer. This witness had taken the prosecutrix to Hindu Rao Hospital and got her medical examination conducted vide MLC already Ex.PW2/A. Prosecutrix had refused to undergo her internal medical examination.
42. During the course of investigation, on next day prosecutrix was got counseled from NGO at police station and its report was prepared accordingly.
43. This witness had got recorded the statement, already Ex.PW2/B of the prosecutrix under section 164 Cr.PC at Tis Hazari Courts, Delhi vide her application Ex.PW14/A.
44. During the course of investigation, she had interrogated and arrested the accused vide arrest memo already Ex.PW2/C and personal search of the accused was also conducted vide personal search memo Ex.PW2/D. This witness deposed that accused pointed out the place of incident vide pointing out memo Ex.PW14/C.
45. This witness had also got the accused medical examined vide MLC already Ex.PW10/A.
46. This witness on 22.07.2016 she along with Ct. Sompal had got the potency test of the accused got conducted vide MLC already Ex.PW6/A. The doctor who had conducted medical examination of the accused had also handed over the exhibits pertaining to the accused to Ct. Sompal, who handed them over to her along with sample seal, which she seized vide seizure memo already Ex.PW6/B. SC No.29074/2016 State Vs. Pankaj Dagar 12/22
47. This witness has served a notice under section 91 Cr.PC already Ex.PW4/E to Ms. Trilochan Kaur to produce the relevant document regarding tenancy of Anurag and Rahul Dalal. Pursuant to the said notice she produced the said documents, already Ex.PW4/A.
48. PW15 Dr. Iftiquar Khan, has conducted formal medical examination of accused vide MLC already Ex.PW6/A and referred the accused to the Department of Forensic Medicine for further evaluation. This witness had also taken clothes of the accused and his blood sample in gauge, preserved, sealed and handed over to W/ASI Vimlesh along with the sample seal.
49. PW16 Dr. M.K. Panigrahi has conducted potency test of accused vide Ex.PW16/A and found nothing to suggest that he was incapable of performing sexual intercourse.
50. PW17 W/SI Gurdeep Kaur is a material witness being I.O. She deposed that on 25.07.2016 she was posted as SI at PS Maurice Nagar. On that day this case was assigned to her for further investigation. During her tenure as an IO, she served a notice under section 91 Cr.PC upon the principal of Daulat Ram College, Delhi University to produce the record regarding the prosecutrix as she had been student there. In pursuant to the notice under section Cr.PC the principal had filed reply and submitted that prosecutrix was not student of Daulat Ram College. This witness has proved the said notice cum reply vide Ex.PW17/A.
51. This witness had also served a notice under section 91 Cr.PC Ex.PW17/B upon the Principal of Aditi Mahavidyalaya, University of Delhi and proved the reply already Ex.PW8/A to the said notice was given by the Administrative Officer SC No.29074/2016 State Vs. Pankaj Dagar 13/22 alongwith the documents already Ex.PW8/C, Ex.PW8/D and MarkA to Mark D.
52. This witness had also obtained the CDR pertaining to the mobile numbers of prosecutrix and accused and placed the same on record. Thereafter, she prepared charge sheet and submitted in the court.
53. On being cross examined by Sh. Shitez Sharma, ld. counsel for accused, this witness admitted that on the scrutiny of the aforesaid CDRs she came to know that prosecutrix and accused were having frequent conversation and exchanging text messages. This witness admitted that prosecutrix had not told her about the aforesaid facts at the time of registration of the present case. This witness admitted that during the investigation she came to know that prosecutrix was failed student of Aditi Mahavidyalaya and she had not deposited her fee for the year 20082009.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
54. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. Accused claimed that he is innocent and prosecutrix regularly used to call him and send him some vulgar messages. As he did not reply to the said call/messages and he was not interested to establish relation with her, that is why she falsely implicated him in the present case. Accused has preferred to lead evidence in his defence.
DEFENCE EVIDENCE :
55. Accused has examined himself as DW1 and deposed that prior to registration of this case prosecutrix used to sent him text messages on mobile phone which SC No.29074/2016 State Vs. Pankaj Dagar 14/22 he was using during those days. Brother of accused has produced the aforesaid mobile phone having text messages in it from the period w.e.f. 16.06.2016 to 05.07.2016. He has tendered transcription of the same on judicial record vide Ex.DW1/A (colly running into 04 pages). Thereafter, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
56. Ld. Addl. PP for the State submitted that testimony of prosecutrix is very specific and inspire confidence. The circumstances explained by the prosecutrix clearly show that how she was induced by accused on pretext of get her admission in Delhi University and on that pretext accused had taken her to flat where accused tried to rape her and raped her by forcibly inserting his finger in her private part.
57. Ld. Addl. PP for the State further submitted that prosecutrix has also narrated the circumstance how she escaped from the said flat on the pretext of going to wash room.
58. Ld. Addl. PP for the State further submitted that prosecutrix has supported her version which was given to the police and before the Ld. MM. Minor contradictions and improvements are of no consequence.
59. Ld. Addl. PP for the State further submitted that prosecutrix has also explained delay in lodging the complaint with the police stated that she was under fear of the accused.
60. The stand taken by accused in his defence is of no consequence as admittedly SC No.29074/2016 State Vs. Pankaj Dagar 15/22 prosecutrix and accused were in conversation with each other on mobile phone as prosecutrix was under impression that accused would help her in getting admission in Delhi University. Hence, as per overall testimony of the witnesses examined in the case, case against the accused is proved.
61. On the other hand, Ld. counsel for accused pointed out that there is glaring defect in the investigation of the case as the signature of prosecutrix were not found on the complaint for which no explanation was offered by the prosecutrix.
62. Ld. counsel for accused further submitted that the call detail record of the prosecutrix and accused shows that she was under no threat or fear and was in conversation with the accused of her free will and consent.
63. Ld. counsel for accused further submitted that prosecutrix being educated lady did not give any explanation as to why she did not lodge complaint or call the police on date of incident i.e. on 04.07.2016 and why she chose to lodged complaint with police on 20.07.2016.
64. Ld. counsel for accused further submitted that it is also glaring defect in the investigation when prosecutrix and I.O. could not pointed out the place and site plan of the place of incident in the case was not prepared.
65. Ld. counsel for accused further submitted that there are major contradictions in the statement of prosecutrix. On these grounds, ld. counsel for accused prayed that accused may be acquitted.SC No.29074/2016 State Vs. Pankaj Dagar 16/22
PERUSAL OF RECORD:
66. Record perused. On perusal of record, it is revealed that on the complaint of complainant Ex.PW1/A, present FIR was registered against the accused.
67. It is further revealed that prosecutrix was medically examined vide MLC Ex.PW2/A by Dr. Gargi Pal which MLC was proved by PW9 Dr. Haripriya Bajwa. In MLC, prosecutrix had refused to undergo her internal medical examination.
68. It is further revealed that statement of prosecutrix under section 164 Cr.PC was recorded by Ms. Manika, Ld. M.M. vide Ex.PW2/B.
69. It is further revealed that accused was arrested in the case vide arrest memo Ex.PW2/C; his personal search conducted vide memo Ex.PW2/D. Accused pointed out the place of incident at H.No.8/55, 2nd Floor, Double Storey, Vijay Nagar, Delhi vide pointing out memo Ex.PW14/C.
70. It is further revealed that accused was medically examined by PW10 Dr. Amit Sharma vide MLC Ex.PW10/A. Accused was again produced in Hindu Roa Hospital and was medically examined by PW15 Dr. Iftiquar Khan vide MLC Ex.PW6/A. PW15 Iftiquar Khan also took his blood sample in gauge and prepared other exhibits which were seized by PW14 W/ASI Vimlesh vide seizure memo Ex.PW6/B. Accused was also examined in Hindu Rao Hospital by PW16 Dr. M. K. Panigrahi who conducted his potency test vide MLC Ex.PW16/A and in the opinion of doctor there was nothing to suggest that accused was not capable of performing sexual intercourse.SC No.29074/2016 State Vs. Pankaj Dagar 17/22
71. It is further revealed that on 25.07.2016 IO PW17 W/SI Gurdeep Kaur served a notice under section 91 Cr.P.C. to the Principal of Daulat Ram College, Delhi University and obtained reply Ex.PW17/A wherein it was informed that prosecutrix was not the student of Daulat Ram College. IO PW17 W/SI Gurdeep Kaur also served a notice under section 91 Cr.P.C., Ex.PW17/B upon the Principal of Aditi Mahavidyalaya, University of Delhi and Administrative Officer supplied the documents Ex.PW8/C to Ex.PW8/F of admission of prosecutrix vide his letter Ex.PW8/A.
72. It is further revealed that PW4 Smt. Tarlochan Kaur had let out one room set at 2nd Floor of her House No.A8/55 to Anurag Sharma and Rahul for a rent of Rs.7000/ per month. She also produced rent agreement Ex.PW4/A and stated that after about 34 months Rahul had left the premises and only Anurag Sharma had remained her tenant. PW4 Smt. Tarlochan Kaur also supplied the documents to police which were copy of rent agreement, voter ID, tenant verification of Anurag Sharma; these documents Ex.PW4/A to Ex.PW4/D were seized by police during investigation.
73. It is further revealed that PW7 ASI Sanjeev Kumar deposited exhibits of this case in the Malkhana of PS Maurice Nagar vide entry no. 854, Ex.PW7/A of register no.19.
74. It is further revealed that PW11 Sh. Sukhvir Singh, Nodal Officer, Idea Cellular Company produced CDR, Ex.PW11/C pertaining to mobile phone number, 9990124756 for the period from 01.08.2015 to 31.07.2016 which was in the name of prosecutrix. He also produced the certified copy of customer application form alongwith ID proof, Ex.PW11/D. SC No.29074/2016 State Vs. Pankaj Dagar 18/22
75. It is further revealed that PW12 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. produced CDR Ex.PW12/A pertaining to another mobile phone number 9871569487 which was found in name of accused as allotted to him on 04.01.2016. He also produced the certified copy of customer application form alongwith ID proof, Ex.PW12/C.
76. Before reaching at any conclusion, let the relevant sections i.e. 376 IPC be re produced, which are as under : Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Whoever,
(a) being a police officer commits rape within the limits of the police station to which he is appointed; or in the premises of any station house whether or not situated in the police station to which he is appointed; or on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1 - Where a woman is raped by one or more in a group SC No.29074/2016 State Vs. Pankaj Dagar 19/22 of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] FINDINGS:
77. Arguments heard. Record perused. As per record, prosecutrix is a material witness who is examined as PW2 and prosecutrix in her examination stated that in the year 2016, she was doing B. Com (Hons.) from Aditi College, Delhi University, Delhi. She deposed that accused Pankaj Dagar has affiliation with ABVP and accused had met her in the Law Faculty, Campus Law Center in the office of Delhi University Student's Union and she further stated that she had gone to Delhi University Student's Union Office to make inquiry regarding completion of her B. Com. course as she could not complete her course as she was having four backlogs papers. On this aspect, PW8 Sh. Ashutosh Aggarwal, Section Officer (Admn.) has examined as PW8 and he has produced the documents pertaining to prosecutrix regarding her admission for year 2008 09 which are Ex.PW8/C. On perusal of documents, it is clear that prosecutrix had been the student of Aditi Mahavidhalaya for the year 200809 whereas she stated in her examination in chief that she was the student of aforesaid college in the year 2016, she was doing B.Com which is not proved from the testimony of PW8.
78. Further prosecutrix has stated in her examination in chief that accused had met her on 04.07.2017 and talk her and assured her that he would take her to the SC No.29074/2016 State Vs. Pankaj Dagar 20/22 concerned persons to get solve her problem and on the same day between 07:00 p.m. to 08:00 p.m. accused took her to some unknown place by TSR. Again said by Cab. It was very dark area. It was a first floor flat. Again said second floor. She also admitted that accused was under bit of influence of intoxication. Thereafter, accused bolted the door from inside and switched off the lights, then he started disrobing her. When prosecutrix submitted that accused was under bit of influence of intoxication why she accompany the accused for any purpose. Further, procecutrix stated that accused had bolted the door from inside and prior to disrobing, he gave her a glass of water and after drinking the water, she felt giddiness, then accused started disrobing her.
She started screaming for help, then accused pinned her down on the floor. When prosecutrix was under giddiness, it is not possible for any person that she might have screamed for help and she escaped from main entrance of flat. She did not tell how she opened the door of the room when she stated that it was bolted from inside. She went to room after escaping from the said Flat. On that day, she was terrified, she could not to to police station to lodge complaint against the accused and she did not tell the incident to anyone. Finally, on 20.07.2016, she made complaint Ex.PW1/A against the accused but in her cross examination, she admitted that police met her on 04.07.2016 when she had gone to PS and police had recorded her statement. This also reflects doubt on the testimony of the prosecutrix.
79. Prosecutrix had admitted in cross examination that place of occurrence was residential area and people were residing there. When she stated so there was occasion prosecutrix to seek help from any public person who were residing nearby the flat but prosecutrix did not do so.
SC No.29074/2016 State Vs. Pankaj Dagar 21/2280. PW14 ASI Vimlesh has stated that prosecutrix has refused to undergo her internal medical examination. Prosecutrix had admitted that her signature was inadvertently left out on the complaint Ex.PW1/A.
81. Considering the testimony of prosecutrix and documents available on record inspite of her education testimony of prosecutrix is not reliable. Moreover, her testimony has been confronted with her statements.
82. Considering of evidence available on record, it is clear that prosecutrix had been consenting party with the accused. Furthermore, she could not prepared site plan in this case. Therefore, benefit of doubt would go to accused.
83. Since it is settled proposition of law that benefit of doubt always goes in favour of accused. Hence, accused Pankaj Dagar is acquitted from the charge u/s 376 IPC by giving him benefit of doubt.
84. 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.
85. Since prosecutrix was consenting with the accused and has misused the due process of law, hence, no compensation is awarded to her.
86. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 17.04.2018.
(RAMESH KUMARII)
Digitally signed
ASJ/SFTC2(CENTRAL),
RAMESH by RAMESH
KUMAR TIS HAZARI COURTS, DELHI.
KUMAR Date: 2018.04.18
17:19:13 +0000
SC No.29074/2016
State Vs. Pankaj Dagar 22/22