Delhi District Court
State vs Dhananjay Singh S/O Rajdev Singh on 19 December, 2014
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0041262014
SC No. 24/14 Date of assignment : 06.02.2014
FIR No. 520/13 Date on which arguments
PS. Pandav Nagar were heard : 24.11.2014
U/S.376/376(2)(e) Date of judgment : 19.12.2014
323/506 IPC
State Versus Dhananjay Singh S/o Rajdev Singh
R/o Flat No.75, South Avenue,
New Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 13.11.2013 the prosecutrix came to the police station Pandav Nagar and lodged a complaint alleging sexual assault against the accused. In her complaint, the prosecutrix has stated that she is a Government employee. She has been residing at her given address for the last about ten years. She is a married lady and has two sons from that wedlock. The prosecutrix further stated that her husband had arranged a lunch party in February, 2005 which was also attended by the accused SC No.24/14 State vs. Dhananjay Singh page 1 of 21 Dhananjay Singh. The accused thereafter developed friendly relations with her and her family. It was further the case of prosecutrix that the accused started coming to her house in absence of her husband. The prosecutrix advised the accused to come to her house only when her husband is present but the accused ignored her advice. It was also alleged by the prosecutrix that the accused started insisting the prosecutrix to make physical relations with him. When the prosecutrix resisted, the accused threatened her with a revolver and stated that he will kill her and her family members. The prosecutrix also alleged that the accused several times sexually harassed her between July, 2005 to March, 2009. The prosecutrix further alleged that the accused also threatened her that if she will disclose about the acts of the accused to anybody, he will kill her and her family members. The prosecutrix also alleged that on 11.11.2013 at about 10.30 pm and again on 12.11.2013 at about 1.30 p.m. she received threatening calls on her mobile phone from an unknown number which she suspected was a VIP number.
2. On the basis of above complaint, the instant FIR No. 520/2013 u/s 376/506 dated 13.11.2013 was got registered against the accused at police station Pandav Nagar. The prosecutrix was got medically examined vide SC No.24/14 State vs. Dhananjay Singh page 2 of 21 MLC No. 289/13 and exhibits received from the hospital were seized. Thereafter statement of the prosecutrix was got recorded under section 164 Cr.PC. by the learned Metropolitan Magistrate on 16.11.2013 in which the prosecutrix reiterated allegations made by her in her complaint. In addition in her statement u/s 164 Cr.P.C, the prosecutrix also made allegation of unnatural sex by the accused. She also made allegation of causing hurt by the accused and her husband. Thereafter offences u/s 377/323 IPC were added to the FIR. Accused was arrested in this case and he was medically examined at LBS Hospital. The exhibits received from the hospital were seized by the IO. The exhibits were sent to FSL, Rohini for examination. After completion of investigation, chargesheet u/s 376/376(2)
(e)/377/323/506 IPC was filed against the accused.
3. The chargesheet was inter-alia accompanied by a copy of an affidavit dated 11.12.2013 of the prosecutrix. In this affidavit, the prosecutrix has stated that she had filed the complaint against the accused based on some misconception arising out of her matrimonial discord with her husband and for saving her matrimonial life. She had also stated in that affidavit no such incident as mentioned in her complaint had taken place. The photocopy of affidavit was submitted by the prosecutrix to the IO during SC No.24/14 State vs. Dhananjay Singh page 3 of 21 the course of investigation alongwith a covering letter dated 11.12.2013. The photocopy of affidavit is bearing the original signatures of the prosecutrix by way attestation of the copy. The chargesheet was also accompanied by a copy of the statement of the prosecutrix stated to have been recorded by the IO on 13.12.2013 under section 161 Cr.P.C. wherein the prosecutrix has confirmed submission of her affidavit to the IO.
4. Since the major offences in this case were triable by the Court of Sessions, vide order dated 01.02.2014, learned C.M.M (East), Karkardooma Courts committed this case to the Court of Sessions and on allocation, it was assigned to this court.
5. Vide order dated 24.02.2014, a charge u/s 376/ 376(2)(e)/323/506 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. In support of its case, prosecution has examined twelve witnesses i.e. prosecutrix as PW1, Ms. Vandana Jain, Metropolitan Magistrate as PW2, Dr. Ashok Sagar, Senior Resident Forensic Medicine, LBS Hospital, Delhi as PW3, Dr. Chitra, Senior Resident, LNJP,Hospital, Delhi as PW4, Dr. Vinay Kumar Singh, Specialist Forensic Medicine, LBS SC No.24/14 State vs. Dhananjay Singh page 4 of 21 Hospital, Delhi as PW5, W/Ct. Geeta as PW6, HC Sunder Lal as PW7, Ct.Ankit Kumar as PW8, SI Vijay Kumar as PW9, W/SI Anita Rani as PW10, HC Rajbir Singh as PW11 and Sh. D.S. Paliwal, SSA/Biology/DNA, FSL Rohini, Delhi as PW12.
7. PW1 (prosecutrix) is the material witness of this case. She is the only witness who is aware of the relevant facts of the case. In her evidence, the prosecutrix has not supported the case of prosecution.
8. The prosecutrix deposed that she has been working at Railways since 2005 as a Clerk. She got married in the year 2004. After her marriage, she went to Gorakhpur with her husband in the year 2004. She stayed at Gorakhpur for about three or four months. Thereafter she shifted to Delhi and started residing at the house of her parents. At that time her husband was doing the business of auto parts but his business was in losses. Thus, father of the prosecutrix used to bear their household expenses. Her husband used to visit Delhi from Gorakhpur as her parents in law were not well.
9. Prosecutrix further deposed that earlier she did not know the accused Dhananjay Singh. In the year 2005, SC No.24/14 State vs. Dhananjay Singh page 5 of 21 her husband invited the accused for lunch at Mayur Vihar. She touched the feet of accused while covering her head with saree and paid regards to him as her elder brother in law (jeth). Thereafter the accused started visiting her house alongwith her husband. On asking of the prosecutrix, her husband told her that the accused is a resident of Jaunpur and he was also the MLA of Jaunpur. Prosecutrix has deposed that accused might have helped her husband financially but she is not sure. On enquiry about the accused from her relatives, she came to know that the accused was not a person of good character and was having criminal record. Thus she asked her husband to avoid the company of the accused. However, her husband wanted to join politics. At that time, her husband was jobless. This situation led to matrimonial discord.
10. The prosecutrix has further deposed that the accused came to her house in December, 2005. The accused tried to make her husband understand to do some work for their livelihood and thereafter her husband alongwith the accused went to Gorakhpur. Her husband used to remain mostly at Gorakhpur with his parents. In between she got a job at Railways. A male child was born to the prosecutrix on 28.06.2005. Her mother in law also visited her house and helped her. Thereafter her husband SC No.24/14 State vs. Dhananjay Singh page 6 of 21 started neglecting her as he was busy in the election of her mother who was contesting for Panchayat elections at Gorakhpur. She tried to contact her husband on his mobile phone but the phone was found switched off. Her husband used to visit Delhi once a month.
11. The prosecutrix has referred to her affidavit Ex.PW1/A (which was filed by her to the police during investigation) regarding quarrel between her and her husband as she was under an impression that the accused had instigated her husband. She further deposed that in July, 2009 she had filed a complaint mark-B against the accused. This witness further deposed that she lodged a complaint Ex.PW1/B at police station Pandav Nagar in the year 2013 against the accused. She also stated that she was medically examined at LBS Hospital vide MLC Ex.PW1/C. She also deposed that she made her statement u/s 164 Cr.P.C Ex.PW1/D before the learned MM. Prosecutrix further deposed that she lodged the complaint against the accused as he used to interfere in her matrimonial life. She deposed that her husband sent divorce papers to her by post in 2009 due to which she was disturbed. She has further deposed that nothing wrong was done by the accused with her and the accused had not committed rape on her.
SC No.24/14 State vs. Dhananjay Singh page 7 of 21
12. Since the prosecutrix did not support the case of the prosecution, she was subjected to cross examined by the learned Addl. PP on behalf of State. In her cross examination, the prosecutrix denied that she had mentioned in complaint dated 18.07.2009 mark-B that accused pretended to marry her by giving mangalsutra and put his blood on her forehead (maang). She also deposed that her husband told her that the accused would kill her and her family. She also deposed that accused did not give any threat to kill her and her family. She admitted that she had stated in the complaint mark-B that the accused used to visit her house in absence of her husband and wanted to make physical relations with her and on her refusal, he threatened her with revolver to kill her children and husband if she will not agree whatever he said. She however deposed that at that time she was mentally disturbed and due to that reason she made that allegation. She also deposed that she had withdrawn her complaint mark-B. She further deposed that she had made the statement before the learned Metropolitan Magistrate as she was under influence of her relatives (behkawe mein aakar diya tha) and she was scared. She denied that she had stated before the learned Metropolitan Magistrate that the accused committed rape on her in June, 2005 when SC No.24/14 State vs. Dhananjay Singh page 8 of 21 she was pregnant and he took her to the bathroom and had bath with her despite her resistance. She has deposed that no such incident had taken place. The prosecutrix also denied that in October, 2005, when she was brooming her house, the accused came and pushed her on bed and cut (chew) her nipple and gave beatings to her. She also denied that she had stated that the accused threatened to kill her. The prosecutrix deposed that no such incident had taken place. She also denied that on 08.12.2008 accused committed unnatural sex with her, tried to kill her and also gave beatings to her by pushing her on the sink of the kitchen. She further deposed that she made her statement u/s 164 Cr. P.C as on that day she was not in a fit state of mind and had taken sleeping pills/medicine. She further deposed that complaint dated 13.11.2013 Ex.PW1/B is not in her hand writing.
13. The prosecutrix has also denied that she had disclosed to the doctor at the time of her medical examination regarding the history of alleged physical assault, anal intercourse and intercourse during mensuration period. She further deposed that the accused used to visit her house in the absence of her husband to mediate between her and her husband regarding their matrimonial disputes. Prosecutrix denied that she stated in SC No.24/14 State vs. Dhananjay Singh page 9 of 21 complaint Ex.PW1/B that accused several times sexually harassed her from July, 2005 to March, 2009. She further denied that she mentioned in the complaint Ex.PW1/B that the accused threatened her that if she will disclose about the acts of the accused to any person, he will kill her and her family.
14. The prosecutrix was also cross examined on behalf of the accused. During cross examination, she admitted a suggestion that prior to recording her statement u/s 164 Cr.P.C, she used to take some sleeping pills as she had matrimonial discord with her husband and she was under depression. She also admitted that no incident of rape in June, 2005 as mentioned in Ex.PW1/F occurred when she was pregnant. She further admitted the suggestion that when the alleged history of her case was being recorded by the doctor she was in a state of depression due to consumption of sleeping pills and anti depressants. She further admitted the suggestion that the accused never threatened her. She also stated that she signed her affidavit Ex.PW1/A after reading contents of the same and the facts stated therein are correct.
15. PW7 HC Sunder Lal deposed that on 13.11.2013 he was working as duty officer at the police station Pandav SC No.24/14 State vs. Dhananjay Singh page 10 of 21 Nagar. He recorded the FIR on the basis of tehrir produced by W/SI Anita Rani and proved the same as Ex. PW7/A.
16. PW2 Ms. Vandana Jain, learned Metropolitan Magistrate has recorded the statement of the prosecutrix u/s 164 Cr. P.C and proved the same as Ex. PW1/D.
17. PW6 W/Ct. Geeta deposed that on 14.11.2013 she was posted at police Pandav Nagar. On that day she joined the investigation of the present case with W/SI Anita Rani. She alongwith W/SI Anita Rani took the prosecutrix to LBS Hospital for medical examination. Prosecutrix was got medically examined and after examination doctor handed over her sexual assault evidence kit and one sample seal which were seized vide memo Ex. PW6/A.
18. PW4 Dr. Chitra, Senior Resident, LNJP Hospital, Delhi deposed that on 14.11.2013 she was working at LBS Hospital. On that day the prosecutrix was brought in the hospital by lady W/SI Anita Rani for medical examination with the alleged history of sexual assault. On her general physical examination following injuries were found:
1. Scar mark of knife? , injury over right forearm.
2. Bite marks? On right breast.
3. Bite marks? Over right wrist.
SC No.24/14 State vs. Dhananjay Singh page 11 of 21
4. Old injury scar over right thigh posteriorly near knee joint.
5. Injury mark under lower lip.
On her per abdomen examination, soft, obesity was present laproscopic cholecystectomy scar present.
On her P/S examination her hymen was found old ruptured introitus easily admits two fingers, cervix healthy. On her per vaginal examination, her uterus size could not be made out due to obesity, fornices free. On her local examination, anal skin tag present.
This witness proved the MLC of the prosecutrix as Ex.PW1/C.
19. PW3 Dr. Ashok Sagar, Senior Forensic Medicine, LBS Hospital, Delhi deposed that on 20.11.2013 he was working at the LBS Hospital. He also deposed that the prosecutrix was got medically examined in the presence of Dr. Mayur, SR OBS & Gynae. On her local examination following injuries were found:
1. Old healed scar mark, hypopigmented size 2.3x0.6 cm present over right forearm, posterior aspect, 9 cm above from the wrist joint, 14.3 cm below from the elbow joint.
2. Old healed scar mark, hypopigmented size 0.3x1.4 cm present over right breast, 4.7 cm below from the right SC No.24/14 State vs. Dhananjay Singh page 12 of 21 nipple.
3. Old healed scar mark, hypopigmented size 7x3 cm present over right forearm, 6 cm above right wrist joint, palmer aspect.
4. Old healed scar mark, hypopigmented size 4x2.6 cm present over posterior aspect of the right lower thigh just above popliteal fossa, 4.6 cm above from the right knee joint.
5. Old healed scar mark hypopigmented size 1x1 cm present over below lower lip, 1 cm below from the lower lip, 2.3 cm above from the chin.
This witness deposed that on the basis of above examination, he concluded that no definite opinion can be given as all injuries had healed. He proved his opinion as Ex.PW3/A on the back of the MLC of the prosecutrix Ex.PW1/C.
20. PW5 Dr. Vinay Kumar Singh, Specialist Forensic Medicine, LBS Hospital, Delhi deposed that on 21.11.2013 he was working at the LBS Hospital. On that day, accused Dhananjay was brought in the hospital and he was medically examined. He proved the MLC of the accused as Ex. PW5/A.
21. PW8 Ct. Ankit Kumar deposed that on SC No.24/14 State vs. Dhananjay Singh page 13 of 21 21.11.2013 he was posted as constable at police station Pandav Nagar. On that day he was called by the IO. He reached the Karkardooma Court and IO obtained one day police custody remand of the accused Dhananjay Singh. The accused was taken to LBS Hospital for medical examination. Accused was got medically examined and doctor handed over blood sample of the accused and sample seal to the IO which were seized vide memo Ex.PW8/A. Thereafter they reached at police station and the accused was kept in lockup.
22. PW9 SI Vinay Kumar deposed that on 21.11.2013 he was posted at police station Pandav Nagar. He deposed that he alongwith SI Anita reached Karkardooma court and he formally arrested the accused vide arrest memo Ex.PW9/A. IO obtained one day police custody remand of the accused and the accused was taken to LBS Hospital for medical examination for potency test.
23. PW10 W/SI Anita Rani deposed that on 13.11.2013 she was posted at police station Pandav Nagar. On that day the prosecutrix came to the police station and made her complaint Ex.PW1/B. Inspector Mangesh Tyagi made endorsement on the complaint Ex.PW1/B and got the FIR registered. Investigation of this case was marked to her SC No.24/14 State vs. Dhananjay Singh page 14 of 21 by the SHO. IO called Smt. Kiran from NGO namely Delhi Brotherhood Society who recorded the statement Ex.PW10/A of the prosecutrix. The prosecutrix was got medically examined on 14.11.2013 at LBS Hospital. After medical examination sexual assault evidence collection kit was handed over to her and the same was seized vide memo Ex. PW6/A. Doctor advised for forensic examination of the prosecutrix. IO went to forensic department and moved an application for forensic examination of the prosecutrix for which date was fixed as 20.11.2013. Thereafter she recorded the statement of the prosecutrix. The birth certificate of the child of the prosecutrix Ex.PW1/E was seized vide memo Ex.PW1/H. On 16.11.2013 statement of the prosecutrix u/s 164 Cr.P.C was got recorded by the learned Metropolitan Magistrate. On 20.11.2013 the prosecutrix was called at LBS Hospital for forensic examination and after examination doctor gave her opinion Ex.PW3/A on the back of MLC Ex.PW1/C. The accused was arrested and he was also got medically examined at LBS Hospital. On 11.12.2013 the prosecutrix came to the police station and handed over an affidavit Ex.PW1/A to reader of SHO alongwith one application. On 13.12.2013 IO went to the house of the prosecutrix and enquired about the affidavit Ex.PW1/A. Prosecutrix told her that she made the said affidavit with her will and without SC No.24/14 State vs. Dhananjay Singh page 15 of 21 any pressure. During investigation samples were sent to FSL, Rohini for examination and she obtained the FSL result Ex. PW10/N.
24. PW11 HC Rajbir Singh deposed that he was working as MHC (R) at police station Pandav Nagar. He deposed that on 18.7.2009 prosecutrix came to the police station and made a complaint. The said complaint was handed over to reader to SHO for appropriate proceedings. He recorded this information in DD No.69B dated 18.7.2009 and proved the same as Ex.PW11/A.
25. PW12 Sh. D.S. Paliwal, SSA/Biology/DNA, FSL, Rohini deposed that on 26.11.2013 two sealed parcels were received in his office for DNA examination. He proved FSL report as Ex. PW10/N.
26. After closing of prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded. He stated that he is innocent and he has no concern with the alleged offences in any manner and the same are false.
27. I have heard arguments addressed by learned Additional Public Prosecutor for the State and Sh. V.K. Singh, Advocate for accused and perused the record.
SC No.24/14 State vs. Dhananjay Singh page 16 of 21
28. The accused is facing trial for the commission of offences punishable u/s 376/376(2)(e)/323/506 IPC. It is the case of the prosecution that during the period June, 2005 to March,2009, the accused by force made physical relations with the prosecutrix. It is also the allegation of the prosecutrix that in June, 2005, the prosecutrix was pregnant but the accused raped her. The present complaint was filed in November, 2013.
Offences u/s 376/376(2)(e) IPC
29. The prosecutrix in her evidence has deposed that she got married on 27.06.2004. The business of her husband was running in losses and he was not willing to do a job. Due to financial crisis, matrimonial disputes developed between the prosecutrix and her husband. Prosecutrix has also deposed that she was under an impression that the accused had instigated her husband and thus she filed the complaint which did not contain true facts. The prosecutrix in her entire deposition recorded on 04.04.2014 and 05.04.2014 maintained that the accused did not commit any wrong act with her. She also maintained that the accused did not rape her and did not threaten her. During her deposition, the prosecutrix has SC No.24/14 State vs. Dhananjay Singh page 17 of 21 also referred to her sworn affidavit dated 11.12.2013 (Ex.PW1/A) wherein she has stated on the same lines as deposed by her in the court. In that affidavit also she had denied that the accused had sexually harassed her. As noted above, the photocopy of affidavit Ex.PW1/A having original signature of the prosecutrix was handed over to the police during investigation by the prosecutrix and the same has been filed by the police alongwith the chargesheet.
30. In her testimony, the prosecutrix has also deposed that she made her statement u/s 164 Cr.P.C before the learned Metropolitan Magistrate under influence of her relatives and at that time she was not in a fit state of mind.
31. The evidence of the prosecutrix would show that she has not made any incriminating allegation against the accused. In absence of the incriminating testimony of the prosecutrix, the allegations in her complaint and the statement u/s 164 Cr.P.C which are in the nature of previous statements are of no help to the case of the prosecution. There is no direct evidence on record to connect the accused with the commission of offence of rape punishable u/s 376 IPC and u/s 376 (2)(e) IPC.
SC No.24/14 State vs. Dhananjay Singh page 18 of 21
32. The medical and forensic evidence on record has also been seen. The allegations relate to the period of 2005 -2009 while the complaint was filed in the year 2013. The prosecutrix was subjected to medical examination on 14.11.2013 vide MLC Ex.PW1/C. The MLC Ex.PW1/C of the prosecutrix records that some old healed scar marks were found on person of the prosecutrix. PW4 Dr. Chitra, SR LNJP Hospital also deposed that on her general examination some marks of injury were found on the person of the prosecutrix and her hymen was found old ruptured. Here it may be noted that the prosecutrix is a married lady and there is nothing on record to connect the accused with the scars. The prosecutrix was also referred for forensic examination for determination the cause of injury marks and bite marks over breast and wrist. As per deposition of PW3 Dr. Ashok Sagar, SR Forensic Medicine, LBS Hospital, some old healed scar marks were found on person of the prosecutrix but no definite opinion could be given as all injuries were healed and old. FSL report Ex.PW10/N records that no semen was detected on exhibits and thus the case was not processed further for DNA examination. Thus, there is no medical and forensic evidence on record to connect the accused for the commission of offences punishable under section 376/376 (2)(e) IPC.
SC No.24/14 State vs. Dhananjay Singh page 19 of 21
33. There is no other evidence to connect the accused with the offence of rape.
34. In view of above discussion, it would be seen that there is neither any direct evidence nor any circumstantial evidence to connect the accused with the charged offence of rape punishable u/s 376 and 376 (2)(e) IPC. Hence, the accused is liable to be acquitted of the offences punishable u/s 376 and 376 (2)(e) IPC.
Offences u/s 323/506 IPC
35. The prosecutrix in her testimony has stated that the accused never threatened to kill her. During her cross examination on behalf of learned Addl. Public Prosecutor also, the prosecutrix maintained that the accused never threatened to kill her and her family. Thus, again there is no incriminating evidence on record against the accused to connect him with the offence punishable u/s 506 IPC. Hence, the accused is liable to be acquitted of the offence punishable u/s 506 IPC.
36. As far as offence punishable u/s 323 IPC is concerned, the prosecutrix has stated that the accused SC No.24/14 State vs. Dhananjay Singh page 20 of 21 never caused any hurt to her. As noted above, MLC Ex.PW1/C records that some injury marks were present on her person at the time of medical examination but there is nothing on record to connect these marks with the accused. In view of evidence which has come on record, the accused cannot be connected with the injury marks which were present on her person at the time of medical examination. Hence, the accused is liable to be acquitted of the offence punishable u/s 323 IPC.
37. In view of above discussion, it is held that the prosecution has not been able to prove its case against the accused for alleged commission of offences punishable under sections 376/376(2)(e)/323/506 IPC. Thus, the accused is acquitted of the charge under sections 376/376(2)(e)/323/506 IPC.
38. File be consigned to Record Room after necessary compliance.
Announced in the open court on 19.12.2014 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No.24/14 State vs. Dhananjay Singh page 21 of 21