Delhi District Court
State vs 1. Mr. Sant Ram, on 30 June, 2015
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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 : 28 of 2015.
Unique Case ID Number : 02401R057222014.
State versus 1. Mr. Sant Ram,
Son of late Mr. Hari Chand .
Resident of Khasra No.142, Gali No.1.
Milan Vihar, near Jagar Pur, Burari, Delhi-84.
2. Mr. Arun Pal @Bablu,
S/o Mr. Jeet Singh,
Resident of House No.45, Shiv Mandir Mohalla,Z-112,
Badli Village, Delhi-42.
3. Mr. Shyam Sunder @ Kaku,
S/o Mr. Santosh,
Resident of Gali No.9, Milan Vihar, near Jagatpur,
Burari, Delhi-84.
First Information Report Number : 639/2014.
Police Station Mianwali Nagar.
Under sections 376D/328 of the Indian Penal Code.
Date of filing of the charge sheet before : 13.11.2014
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 02.03.2015.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 30.06.2015.
Date of judgment :30.06.2015.
Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar.
Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 1 of 8 ::-
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Appearances: Ms.Promila Singh,Additional Public Prosecutor for the
State.
Accused Arun Pal @ Bablu has been produced from judicial
custody.
Accused Sant Ram and Shyam Sunder are on bail.
Mr. Rajpal Singh, counsel for accused Sant Ram.
Mr. Manish Sharma, counsel for accused Shyam Sunder @
Kakku.
Ms. Sadhna Bhatia, Amicus Curiae for accused Arun Pal @
Babloo.
IO SI Sharmila is also present.
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JUDGMENT
1. Mr. Sant Ram, Shyam Sunder @ Kakku and Arun Pal @ Bablu, the accused persons, have been charge sheeted by Police Station Mianwali Nagar, Delhi for the offences under sections 328, 34 and 376 D of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on unknown date, time at Park situated at Peeragarhi within the jurisdiction of Police Station Mianwali Nagar, all accused persons in furtherance of their common intention offered liquor to the prosecutrix (name withheld to protect her identity) and got consumed forcibly to the prosecutrix and thereafter committed rape upon her.
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 13.11.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar. Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 2 of 8 ::-
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Courts, Delhi for 02.03.2015.
3. On the request of the accused Arun Pal @ Bablu, as he was unable to engage a lawyer , Ms.Sadhna Bhatia, advocate was appointed as Amicus Curiae vide order dated 14.05.2015.
4. After hearing arguments on 21.05.2015, charge for offences under sections 328, 34 and 376D the Indian Penal Code (hereinafter referred to as the IPC) was framed against all the accused persons to which they pleaded not guilty and claimed trial.
5. The summons were issued to prosecutrix by ordinary process as well as through the IO vide order dt 21.15.2015 for 26.05.2015 and were returned unexecuted. It was reported on the summons that prosecutrix is not available at the given address and statement of one Ms. Samina Begum was also annexed with the report that the prosecutrix was living on rent and had vacated the given address one year or 10 months ago and her present whereabouts and phone number are not known. Thereafter vide order dt. 26.05.2015 fresh summons were issued to the prosecutrix through IO as well as SHO and DCP West returnable on 30.60.2015.
6. Today the process issued to the prosecutrix has been received back unexecuted again. It has been again reported on the process issued to the prosecutrix that she is not available at the given address and has vacated the same 11-12 months earlier.
Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar. Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 3 of 8 ::-
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7. The summons issued to DCP, West have also been returned with the report that the prosecutrix is unserved, the process server visited the above given address, where one Ms. Samina Begam, owner of the house met and informed that prosecutrix was residing there as a tenant but she had vacated the same and gone to unknown place around one year ago. The process server also made local enquiry and contacted Mr. Usman Khan, but no clue about the present whereabouts of prosecutrix could be known. The given mobile number found incorrect. The statements of Ms. Samina Begum and Mr. Usman Khan also annexed with the report.
8. In the circumstances, as despite best efforts several times made by the police including the DCP, West, the SHO Police Station Mianwali Nagar and the IO, the prosecution was unable to produce the prosecutrix, who is the star witness. It shall be futile to give more opportunities for getting the prosecutrix served. The request of Additional Public Porsecutor for examining the other prosecution witnesses is declined as the prosecutrix / complainant is not available for evidence and in the absence of her evidence, no useful purpose be served by examining the other witnesses. It shall be futile to record the testimonies of other witnesses, who are official or formal 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 available. The prosecution evidence is closed.
9. Statements of all the accused persons under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) are Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar. Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 4 of 8 ::-
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dispensed with as there is nothing incriminating against them when the prosecutrix is not available.
10. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
11. As the prosecutrix is not available for her evidence and there is no incriminating evidence against all the accused persons, consequently, no inference can be drawn that all the accused persons are guilty of raping the prosecutrix after forcibly consuming her liquor. There is no material on record to suggest that all accused persons in furtherance of their common intention offered liquor to the prosecutrix (name withheld to protect her identity) and got consumed forcibly to the prosecutrix and thereafter committed rape upon her. No case is made out against all the accused persons as there is no incriminating evidence against them.
12. 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 the prosecutrix has herself is not available for evidence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
13. Consequently, no inference can be drawn that the accused Mr. Sant Ram, Shyam Sunder @ Kakku and Arun Pal @ Bablu are guilty Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar. Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 5 of 8 ::-
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of the charged offences under sections 328, 34 and 376D of the IPC. There is no material on record to show that on unknown date, time at Park situated at Peeragarhi within the jurisdiction of Police Station Mianwali Nagar, all accused persons in furtherance of their common intention offered liquor to the prosecutrix (name withheld to protect her identity) and got consumed forcibly to the prosecutrix and thereafter committed rape upon her.
14. From the above discussion, it is clear that the version of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape or threat.
15. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against all the accused persons, Mr. Sant Ram, Shyam Sunder @ Kakku and Arun Pal @ Bablu, for the offences under section 328, 34 and 376D of the IPC.
16. Consequently, all the accused persons, Mr. Sant Ram, Shyam Sunder @ Kakku and Arun Pal @ Bablu, are hereby acquitted of the charge for the offences under section 328, 34 and 376D of the IPC.
17. Compliance of section 437-A Cr.P.C. is made in the order sheet.
18. Case property be destroyed after expiry of period of Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar. Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 6 of 8 ::-
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limitation of appeal.
19. 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 material witness like the prosecutrix, do not appear or are not traceable, as in the present case or where the witnesses do not support the prosecution case or give quality evidence or where the prosecutrix is hostile. 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.
20. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
21. Before parting, I would also like to observe that Ms.Sadhna Bhatia, advocate, who has been appointed as Amicus Curiae in this case, made very sincere and laborious efforts in this case with her very able assistance and regular appearance, thereby enabling the Court to dispose the matter expeditiously.
22. 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) Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar. Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 7 of 8 ::-
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this 30th day of June, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 28 of 2015.
Unique Case ID Number : 02401R057222014.
FIR No. 639/2014, Police Station Mianwali Nagar. Under sections 376D/328 of the Indian Penal Code.
State versus Sant Ram & Ors. -:: Page 8 of 8 ::-