Delhi District Court
State vs Mahesh on 12 February, 2024
IN THE COURT OF MS. SHEFALI SHARMA: ADDL. SESSIONS JUDGE-02
( NORTH ):ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 635/2022)
FIR No. 322/2017
Police Station Jahangir Puri
Charge sheet filed 377/313 IPC
Under Section
Charge framed Under 377/313 IPC
Section
State V/s Mahesh
S/o Sh. Daya Ram
R/o Jhuggi No. H-O-22,
Jahangir Puri, Delhi.
......Accused
Date of institution 08.08.2022
Arguments concluded on 06.02.2024
Judgment Pronounced on 12.02.2024
Decision Acquittal
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion are that in the month of October 2016 at Mayur Guest House, Panchvati, Adarsh Nagar, accused Mahesh committed carnal intercourse against the order of FIR No. 322/2017 , PS Jahangir Puri Page No. 1 of 16 State Vs. Mahesh nature with complainant Neeraj @ Nisha and forcibly administering pills for abortion to complainant, a pregnant female and voluntarily caused miscarriage to your wife without her consent and eventually the instant FIR No. 322/17 had been registered U/s 377/313 IPC.
2. During investigation, the IO recorded statement of witnesses including the complainant and after completion of investigation, charge sheet for the offence under Section 377/313 IPC was filed in the court.
CHARGE
3. On committal of the case to the Court of Sessions, vide order dated 17.11.2022 charge under Section 377/313 IPC was found to be made out against accused. The formal charge as above was framed on the said date to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Thereafter, prosecution in support of its case have examined 07 witnesses in all.
PW-1 is W/Ct. Pinky who deposed that on 17.07.2017 she was posted at PS Jahangir Puri and on that day on the direction of IO SI Sumedha, she alongwith victim N went to BJRM hospital for her medication examination. She further deposed victim was medically examined in the hospital vide MLC No. 138060 and after medical examination they came back to the PS. FIR No. 322/2017 , PS Jahangir Puri Page No. 2 of 16 State Vs. Mahesh PW2 is HC Ajit Singh. He deposed on 10.12.2017 he was posted at PC Jahangir Puri as a Ct. and on that day he alongwith WSI Sumida went to house no. H4/ D22 Jahagir Puri Delhi where they met accused Mahesh. That complainant/victim also reached there and identified the accused and on the identification of the accused by victim, IO interrogated and arrested accused Mahesh vide arrest memo Ex. PW-2/A, personally searched the accused conducted vide memo Ex. PW-2/B. PW3 is HC Manisha. She has deposed that on 19.04.2018 he was posted at PS Jahangir Puri and on that day, IO sent him to BJRM hospital along with victim for her blood sample. That the concerned doctor took blood sample of victim N and handed over her sealed pullanda of blood sample along with sample seal of causality BJRM Hospital. She came back to PS and handed over the above said pullanda to IO, who sealed the same vide seizure memo Ex. PW3/A. PW4 is HC Manju. She has deposed that on 18.12.2017 she was posted at PS Jahangir Puri as Ct and on that day, she went to BJRM hospital where a baby boy of 30 days was examined vide MLC No. 146725. She collected one sealed blood sample with sample seal SEAL-1 CASUALITY BJRM Hospital Delhi from doctor/hospital staff. She handed over the same to W/SI Sumedha who seized the same vide seizure memo Ex. PW4/A. PW5 is HC Sanjay. He deposed that on 23.04.2018, he was posted at PS Jahangir Puri as a Ct. and on the direction of SHO and IO he took three Exhibits duly sealed along with sample seals from MHCM, PS Jahangir Puri for depositing the same in FSL vide RC no. 84/21/18. He deposited the same in FSL and obtained the acknowledgment of FSL and copy of RC which she handed over to MHCM on his returned to the PS. FIR No. 322/2017 , PS Jahangir Puri Page No. 3 of 16 State Vs. Mahesh PW6 is ASI Seema. She deposed that On 17.07.2017, she was posted at PS Jahangir Puri and working as duty officer from 08:00 AM to 04:00 PM. That on that day, at about 03.10 PM SI Sumedha presented rukka to me for registration of FIR. She got fed the contents of rukka in computer through computer operator and computer generated copy of FIR is Ex. PW6/A. She made endorsement Ex. PW6/B on the rukka, gave certificate U/s 65B of Evidence Act Ex. PW6/C and I handed over the copy of FIR and copy of FIR and original rukka to SI Sumedha for investigation.
PW7 is victim N. She has deposed as under:
On 20.01.2012 I got married with accused Mahesh as per Hindu Rites and Ceremonies. Copy of certificate of Arya Samaj Yuvah Mandir Trust, Jamna Bazar, Delhi dated 28.06.2012 is exhibited as Ex. PW7/A. I was residing at my mother's house i.e. G-Block, 1596, Jahangirpuri, Delhi and accused Mahesh was living separately at his home.
I do not want to say anything else. Accused Mahesh is present in the court today, correctly identified by the witness. My complaint is exhibited as Ex. PW7/B. She was thoroughly cross examined by Ld. Addl. PP for the State which is as under:
It is correct that I have filed application under Section 156(3) CrPC and complaint U/s 200 CrPC before the Hon'ble Court and by then the order of Hon'ble Court said case FIR had been lodged.
At this stage, Ld. Addl. PP for State is drawn attention of the witness on her complaint which is Ex. PW7/B. It is correct that my father was working in FIR No. 322/2017 , PS Jahangir Puri Page No. 4 of 16 State Vs. Mahesh Agra and my mother was working in a factory. It is correct that accused Mahesh was working with brother in Azadpur Mandi. It is wrong to suggest that accused often used to visit my house with my bother. It is wrong to suggest that on the day when I was alone in the house, accused Mahesh came to my house and offered cold drink to me. It is wrong to suggest that I consumed cold drink , thereafter, I become unconscious. It is wrong to suggest that meanwhile accused made illegal sexual relation with me and also recorded my nude video on his mobile phone. It is wrong to suggest that when I regained consciousness accused disclosed all the seen and showed my obscene video to me and threatened me if I would complaint my family or anyone then he would upload all obscene, nude photographs and video on the internet. It is wrong to suggest that accused gave false assurance to me for getting marriage in future and due to fear I neither informed this incident to police nor my parents. (Confronted with the portion from portion A to A1 in Ex. PW7/B). It is wrong to suggest that after the abovesaid incident the accused started to sexually harass me and he used to take me in various guest houses and made sexual relations with me. It is wrong to suggest that accused always threatened me if I did not fulfill his demand he would upload my photographs in the internet. (Confronted with the portion from portion B to B1 in Ex. PW7/B).
FIR No. 322/2017 , PS Jahangir Puri Page No. 5 of 16 State Vs. Mahesh It is wrong to suggest that after the said marriage accused told me that abhi mai tujhe apne saath nahi rakh sakta hoon, aur tu bhi abhi kisi ko shaadi ke baare mai mat batana, kuch time ke baad mai tumhe apne ghar leke jaunga and after said assurance I did not disclose about our marriage to anyone. (Confronted with the portion from portion C to C1 in Ex. PW7/B).
It is wrong to suggest that I never become pregnant and I gave this information to the accused and then accused stated to me abhi bacche ki jarurat nahi hai and accused forcefully gave pills to me due to this my pregnancy got terminated. (Confronted with the portion from portion D to D1 in Ex. PW7/B).
It is wrong to suggest that accused used to visit Gujrat for several months, when I asked then accused disclosed that he had to visit Gujrat for few months for his business. It is wrong to suggest that I asked many times to the accused, when he would take me in his house and accused always made excuses and passed many years. It is wrong to suggest that whenever the accused used to stay in Delhi the accused made sexual relations with me. (Confronted with the portion from portion E to E1 in Ex. PW7/B). It is wrong to suggest that on October 2016 accused informed me that soon he would taken me in his house but accused did not do so. It is wrong to suggest that accused started to take complainant in Mayur Guest House, Panchwati, Adarsh Nagar, Delhi for sexual relations.
FIR No. 322/2017 , PS Jahangir Puri Page No. 6 of 16 State Vs. Mahesh It is wrong to suggest that many times accused used to make unnatural sex with me, several time accused compelled me to fulfilled his demand of unnatural sex. It is wrong to suggest that whenever I refused to do that, he would leave me and due to fear of accused, I did the same.
(Confronted with the portion from portion F to F1 in Ex. PW7/B).
It is wrong to suggest that on February 2017 I alongwith accused went to Mayor Guest House and accused made unnatural sex with me many times. (Confronted with the portion from portion G to G1 in Ex. PW7/B).
It is wrong to suggest that on 10.03.2017 I came to know that I got pregnant and thereafter I informed the accused about my pregnancy. It is wrong to suggest that I requested him that I want to live with him. It is wrong to suggest that thereafter accused called me for meeting but I refused to meet him until accused would take me to his home. (Confronted with the portion from portion H to H1 in Ex. PW7/B).
It is wrong to suggest that after some days of the incident, accused went for his village without informing me. It is wrong to suggest that I visited his house for inquiring about the accused, I got shocked came to know that accused was already married and also had two children. (Confronted with the portion from portion J to J1 in Ex. PW7/B).
It is further wrong to suggest that on the next day I disclosed all story to my parents and my parents when got all the facts then they made inquiries from the accused and my parents also got to know FIR No. 322/2017 , PS Jahangir Puri Page No. 7 of 16 State Vs. Mahesh that accused was already married man and was living with his wife and two children. It is further wrong to suggest that thereafter my parents made a call to accused on mobile No. 8377940643 and requested him to visit my house (Confronted with the portion from portion K to K1 in Ex. PW7/B).
It is further wrong to suggest that on 22.04.2017 accused visited my house when I and my parents inquired about his first marriage then he disclosed that he was already married and having two children. It is further wrong to suggest that accused made pressure to me for abortion of the child and threatened me that if I reported this matter to the police then he would kill me and my family members and thereafter accused ran away from there. (Confronted with the portion from portion L to L1 in Ex.
PW7/B).
It is further wrong to suggest that thereafter I reported this matter in PS Jahangir Puri but police official misbehaved and refused to lodge my present FIR. (Confronted with the portion from portion M to M1 in Ex.
PW7/B).
At this stage, Ld. Addl. PP for State has drawn the attention to the witness her statement under Section 161 CrPC which is marked as Mark Z. At this stage, Ld. Addl. PP for State has drawn the attention to the witness her statement under Section 161 CrPC dated 25.11.2019 which is marked as Mark Z1.
FIR No. 322/2017 , PS Jahangir Puri Page No. 8 of 16 State Vs. Mahesh It is correct that police official arrested accused Mahesh at my instance vide arrest memo already Ex. PW2/A bearing my signature at point B. It is wrong to suggest that in the year 2011 I was alone inside my house and accused Mahesh came there and gave me spike cold drink and then I became sleep and when I woke up then I got to know that accused clicked my obscene photographs and stated to me he would soon marry with me. (Confronted with the portion from portion A to A1 in Mark Z1).
It is further wrong to suggest that I never become pregnant and I gave this information to the accused and then accused stated to me abhi bacche ki jarurat nahi hai and accused forcefully gave pills to me due to this my pregnancy got terminated. It is wrong to suggest that on October 2017 accused informed me that soon he would taken me in his house but accused did not do so. It is wrong to suggest that accused started to take complainant in Mayur Guest House, Panchwati, Adarsh Nagar, Delhi for sexual relations. It is wrong to suggest that many times accused used to make unnatural sex with me, several time accused compelled me to fulfilled his demand of unnatural sex. It is wrong to suggest that whenever I refused to do that, he would leave me and due to fear of accused, I did the same. (Confronted with the portion from portion B to B1 in Mark Z1).
FIR No. 322/2017 , PS Jahangir Puri Page No. 9 of 16 State Vs. Mahesh At this stage, one sealed envelop duly sealed with the seal of RM is part of the record. The seals are intact. The envelop is open and found containing the proceeding under Section 164 Cr.P.C and statement of Ms. 'N'.
At this stage, witness has been shown her statement U/s 164 CrPC which is Ex.
PW7/C the witness identify her signature at point A, however, she submits that she does not remember the contents of the same or the fact that her statement was recorded before the Magistrate.
It is wrong to suggest that I am deliberately deposing falsely as I have settled the matter with the accused outside the court and now want to save the accused for severe punishment in the present criminal matter. It is wrong to suggest that I am deposing falsely being won over by the accused. It is wrong to suggestion that I am deliberately not disclosing the true facts of the case due to pressure, coercion and undue influence.
STATEMENT OF ACCUSED UNDER SECTION 294 Cr.P.C
5. Vide his separate statement recorded on 02.02.2024, accused has admitted the following documents under Section 294 Cr.P.C.:
1. Statement under Section 164 CrPC Ex.PW7/C
2. MLC No. 138060 of victim 'N' Ex.P-1
3. MLC No. 152824 of victim 'N' Ex. P-2
4. Potency Test/MLC No. E/292332/17 of Ex. P-3 accused Mahesh
5. MLC No. 146725 baby Hritik Ex.P-4
6. FSL Report No. 2018/B/3464 Ex. P-5 FIR No. 322/2017 , PS Jahangir Puri Page No. 10 of 16 State Vs. Mahesh
6. Vide order dated 02.02.2024, statement of accused u/s 313 Cr.P.C. was dispensed with as no incriminating evidence has come up against the accused.
6. Thereafter, matter was fixed for final arguments.
ARGUMENTS
7. I have heard Mr. Nishant Kumar, the Ld. Addl. PP for the State and Mr. Vijay Kumar, Ld. Counsel for accused.
8. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature and the prosecution witnesses have proved the case beyond reasonable doubt.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625.
9. Per contra, Ld. Counsel for the accused has argued that accused has been falsely implicated. That the prime prosecution witness PW Ms. N has not supported the case of the prosecution. Further there is no other cogent evidence which could prove the guilt of accused beyond reasonable doubt and hence he deserves acquittal.
10. I have heard the arguments at length and perused the entire record.
FINDINGS FIR No. 322/2017 , PS Jahangir Puri Page No. 11 of 16 State Vs. Mahesh
11. The accused had been charged for the commission of offence punishable under Section 377/313 IPC.
12. The relevant Sections are reproduced as under:
SECTION 377 IPC "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
SECTION 313 IPC "Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
13. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused FIR No. 322/2017 , PS Jahangir Puri Page No. 12 of 16 State Vs. Mahesh in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
VICTIM/MATERIALWITNESS
14. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
It was the case of the prosecution that in the month of October 2016 at Mayur Guest House, Panchvati, Adarsh Nagar, accused Mahesh committed carnal intercourse against the order of nature with complainant Neeraj @ Nisha and forcibly administering pills for abortion to complainant, a pregnant female and voluntarily caused miscarriage to your wife without her consent.
The statement of the victim was recorded by the police under Section 161 Cr.P.C. Ex.PW7/B. Her statement was also recorded before Ld. Magistrate under Section 164 Cr.P.C. Ex.PW7/C, wherein she stated that accused had administered cold drink to her and when she got up she realized that accused had clicked her objectionable photographs and threatened her to post the same FIR No. 322/2017 , PS Jahangir Puri Page No. 13 of 16 State Vs. Mahesh on internet. Thereafter, accused got married to her on 20.01.2016 but he did not take the victim to his house. That she got pregnant and accused administered some medicine to cause her abortion. After 1½ years he came back again and took her to various hotels and committed carnal intercourse. That again he left her and came back after 2 to 3 months and disclosed that he was already married with someone else and having two children prior to his marriage with the victim.
The said prime prosecution witness PW7 was the victim/ complainant N. She has deposed as under:
On 20.01.2012 I got married with accused Mahesh as per Hindu Rites and Ceremonies. Copy of certificate of Arya Samaj Yuvah Mandir Trust, Jamna Bazar, Delhi dated 28.06.2012 is exhibited as Ex. PW7/A. I was residing at my mother's house i.e. G-Block, 1596, Jahangirpuri, Delhi and accused Mahesh was living separately at his home.
I do not want to say anything else. Accused Mahesh is present in the court today, correctly identified by the witness. My complaint is exhibited as Ex. PW7/B. Thus, the victim took a contradictory stand and resiled from her earlier statements and herself has not supported the case of the prosecution and completely denied if accused used to sexually harass her or that he made sexual relations with her. She further specifically denied the fact that she ever became pregnant because of the accused or that accused had unnatural sex with her against the order of nature.
In her cross-examination by Ld. Addl. PP for the State, she categorically denied that on 10.03.2017, she became pregnant. She further FIR No. 322/2017 , PS Jahangir Puri Page No. 14 of 16 State Vs. Mahesh denied that on 22.04.2017, accused disclosed that he was already married having two children and that he put pressure on the victim to abort the child or that he threatened her if she reported the matter with the police then he would kill her and her family members.
During her lengthy cross examination by Ld. APP for the State she resiled from her earlier statement Ex.PW 7/B and she resiled from the contents of the statement recorded before the Magistrate u/s 164 Cr.PC Ex.PW 7/C. MEDICAL/FORENSIC EVIDENCE
15. The accused vide his statement under Section 294 Cr.P.C.
admitted the MLC bearing no. 138060 Ex.P1 and MLC bearing no. 15284 Ex.P2 of the victim N. But even from the said MLCs no fresh external injury could be seen to support the allegations of either carnal intercourse or having caused miscarriage. Infact, there is another MLC Ex.P4 admittedly of the baby 'H', who is still in the custody of victim herself and was taken for medical examination and appeared to be a healthy child. No visible injury was seen even on his medical examination.
The FSL result Ex.P5 reflects that the accused is the biological father of said baby H but that does not prove the allegations of any previous miscarriage or carnal intercourse and as such the victim herself deposed that she and accused had married and said baby H is in her custody. There is no dispute regarding the victim being a major and having willfully married with the accused and thus, even by the medical and FSL result nothing incriminating could be culled out against the accused.
POLICE WITNESSES
17. The other witnesses were police officials who deposed regarding FIR No. 322/2017 , PS Jahangir Puri Page No. 15 of 16 State Vs. Mahesh the manner of investigation but the material prosecution witnesses i.e. PW7 has not supported the case of the prosecution and categorically denied that the accused Mahesh either committed carnal intercourse or caused miscarriage of her child. There is no other cogent incriminating evidence against the accused and benefit of doubt has to be granted to the accused.
CONCLUSION
18. In the wake of testimony of the prime prosecutrix PW 7, who was the victim herself, having not supported the case of the prosecution, the other witnesses being police officials, benefit of doubt has to be granted to the accused and it can be safely inferred that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
In view of the aforesaid discussions and findings, accused Mahesh stands acquitted of the charges levelled against him
19. File be consigned to record room after due compliance.
20. Needless to say, that in view of Section 357A Cr.P.C. the victim would be entitled to compensation even though the accused has been acquitted, if not awarded so far by the Delhi State Legal Authority, as may be permissible, as per subsisting rules and in accordance with law.
Dictated and announced in the open (Shefali Sharma) Court on 12.02. 2024 Addl. Session Judge-02 (running in 16 pages) (North), Rohini Courts/Delhi FIR No. 322/2017 , PS Jahangir Puri Page No. 16 of 16 State Vs. Mahesh