Delhi District Court
State vs Surender & Ors. -:: Page 1 Of 14 ::- on 26 July, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
State versus
1. Mr. Surender
Son of Mr. Churamani @ Santosh,
R/o H. NO. RZ-V-51, Nihal Vihar, New Delhi.
2. Mr. Churamani @ Santosh,
Son of late Mr. Dendayal,
Resident of House No. RZ-V-51, Nihal Vihar, New Delhi.
3. Ms. Shanti Devi,
Wife of Mr. Churamani @ Santosh,
Resident of House No. RZ-V-51, Nihal Vihar, New Delhi.
4. Mr. Sanjay Pandey,
Son of Mr.Puran Wasi Pandey,
Resident of House No. 1468, Gali No.103, Ganesh Pura,
Tri Nagar, New Delhi-110035.
First Information Report Number : 134/2014.
Police Station Rajouri Garden.
Under sections 366, 376, 506, 34 of the Indian Penal Code.
Date of filing of the charge sheet : 21.03.2014.
before the Court of the Metropolitan Magistrate
Date of receipt of charge sheet after committal : 28.03.2014.
Arguments concluded on : 26.07.2014.
Date of judgment : 26.07.2014.
Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden
Under sections 366/376/506/34 of the Indian Penal Code.
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Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused Mr.Surender on interim bail for a period of 15 days
uptil 04.08.2014.
Accused Mr.Churamani @ Santosh, Ms.Shanti Devi and
Mr.Sanjay Pandey are on bail.
Mr. Sunil Kapoor, counsel for all accused persons.
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."............ Kurt Cobain *************************************************************
1. The charge sheet has been filed against all the accused persons namely Mr.Surender, Mr. Churamani @ Santosh, Ms. Shanti Devi and Mr.Sanjay Pandey, by Police Station Rajouri Garden, Delhi for the offence under sections 366, 376, 506 and 34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 21.07.2012 at time un- known at Flat No.438, II floor, Meera Bagh, Delhi, accused Mr.Surender raped the prosecutrix (name although mentioned in the file but withheld to protect her identity) on a false promise of marriage, on 06.10.2013 at G-13, G.F.Jaina Tower II, Jain Associates, Delhi (office of accused Mr.Surender) he again raped the prosecutrix on a false promise of marriage and continued to rape her for about one and half years prior to the lodging of the com- plaint on 08.02.2014. On 06.10.2013 at G-13, G.F.Jaina Tower II, Jain As- sociates, Delhi, accused Mr.Surender had abused the prosecutrix and there- after on 10.1.2014 at G-13, G.F.Jaina Tower II, Jain Associates, Delhi, ac-
Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
State versus Surender & Ors. -:: Page 2 of 14 ::-
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cused Mr.Surender had again beaten the prosecutrix and threatened to throw acid on her face. On 21.01.2014 at E-143, second floor, Tagore Gar- den Extension, New Delhi, co-accused Mr.Sanjay Pandey had threatened Mr. Vinay (brother of the prosecutrix) to make the prosecutrix understand otherwise they would put the CD of the prosecutrix on Net and on 30.01.2014 accused Mr.Churamani @ Santosh and Ms.Shanti Devi along with co-accused Mr.Sanjay Pandey went to the house of the prosecutrix (address although mentioned in the file but withheld to protect the identity of the prosecutrix) and threatened to kill her.
2. After completion of the investigation, the charge sheet against all accused persons Mr. Surender, Mr. Churamani @ Santosh, Ms. Shanti Devi and Mr. Sanjay Paney was filed before the Court of the learned Metropolitan Magistrate on 21.03.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, THC, Delhi for 28.03.2014.
3. After hearing arguments, charge for offence under sections 376, 417 and 506 of the IPC was framed against the accused Mr.Surender and charge for offence under section 506 IPC was framed against the accused Mr. Churamani @ Santosh and Ms. Shanti Devi and charge for the offence under section 506 of the IPC was framed against accused Mr.Sanjay Pandey vide order dated 21.04.2014 to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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prosecutrix, as PW1 and Mr. Brij Mohan, father of prosecutrix, as PW2.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
6. The prosecutrix, as PW1, has deposed that she was earlier residing with my parents (address of the prosecutrix deposed in evidence but withheld to protect her identity). She had met accused Mr.Surender in the year 2012 when she was working at Genuine Build Tech. Private Ltd, Jaina Tower-I Janak Puri West and accused was working in Jain Associates, Jaina Tower -II, Janak Puri which was located opposite to her office. Gradually, they developed friendship and started having physical relations which were with their free consent. She had physical relations with the accused Mr.Surender till October, 2013 and the same were with her free consent. Accused Mr.Surender had promised to marry her and he has honoured his promise by marrying her on 23.07.2014. She has also produced the copies of the documents of marriage i.e marriage certificate from Arya Samaj Mandir (Ex.PW1/A1) and eight photographs of her marriage (Ex.PW1/A2 to Ex. PW1/A9). Accused Mr.Churamani @ Santosh and accused Ms.Shanti Devi are the parents of the accused Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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Mr.Surender. Due to wrong advise and at the instance of some well wishers, she had gone to Police Station Rajouri Garden and made a complaint (Ex. PW1/X) against the accused persons. She did not know any person by the name of Mr. Sanjay Pandey, hence, she cannot identify him. She has identified the other accused. She was produced by the police before the Court of the learned Metropolitan Magistrate who recorded her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex. PW1/Y). She had made this statement at the instance of her well wishers, on their wrong advise. The accused persons have not committed any offence. Accused Mr.Surender has not raped her on a false promise of marriage. He has married her as he had promised. She had physical relations with him with her free consent and there was no misrepresentation by the accused. She did not have any grievance against any of the accused persons since they have not committed any offence. She has prayed that all the accused persons may be acquitted as they are innocent.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
8. In her cross examination by the prosecution, the prosecutrix has admitted that she had written in the complaint and stated in her statement under section 164 of the Cr.P.C. that the accused Mr.Surender had physical relations with her on a false promise of marriage and that he may be Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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punished. However, the same had been made under wrong advise and at the instance of some well wishers. She had not stated to the police in her statement that on 30.01.2014 accused Mr.Churamani and Ms.Shanti Devi along with accused Mr.Sanjay Pandey came to her house at Tagore Garden and threatened to kill her, as it specifically mentioned in her statement Ex. PW1/X. She was confronted with statement Ex. PW1/X, where it is so recorded. She did not identify accused Mr.Sanjay Pandey as she has never seen him. She denied the suggestion that she is not intentionally identifying accused Mr.Sanjay Pandey as she has settled the matter with all the accused persons. She denied the suggestion that on 21.01.2014 accused Mr.Sanjay Pandey had threatened her brother Mr. Vijay to make her understand otherwise he would put her CD on net and thereafter on 30.01.2014, he alongwith accused Mr.Churamani and accused Mr.Shanti Devi came to her house and threatened to kill her. She admitted that she was taken by the police to DDU hospital where she was medically examined. She admitted that accused Mr.Surender was arrested by the police in her presence vide arrest memo (Ex. PW1/B). She denied that on 06.10.2013 and on 10.01.2014 at G-13, Ground Floor, Jaina Tower II accused Mr.Surender had beaten her and threatened to throw acid on her face. She denied the suggestion that she had made the complaint to the police and had stated before the learned Metropolitan Magistrate voluntarily against the accused persons and not due to wrong advise or at the instance of some well wishers. She denied that she has forgiven the accused Mr.Surender as he has married her and due to this reason she is not deposing against him and other co-accused persons who are related to him. She denied that she is deposing falsely.
Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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9. In her cross examination by the accused, the prosecutrix has admitted that all the accused have not committed any offence. She admitted that accused Mr.Surender has not raped her nor cheated her nor gave her beatings nor outraged her modesty nor threatened to throw acid on her at any point of time. She admitted that accused Mr.Surender had promised to marry her and he has honoured his promise. She admitted that she had physical relations with the accused Mr.Surender with her free consent. She admitted that accused Mr.Churamani, Ms.Shanti Devi and Mr.Sanjay Pandey have never threatened to kill her and her brother. She admitted that all the accused persons have not committed any offence. She again prayed that all the accused persons may be acquitted as they are innocent.
10. PW2, Mr. Brij Mohan, father of the prosecutrix, has deposed that prosecutrix is her daughter. Prosecutrix told him that she had developed friendship with a boy named Mr.Surender who was working in District Centre and residing at Nihal Vihar. Now his daughter/prosecutrix got married with accused Mr.Surender on 23.07.2014. He knows accused Mr.Churamani and Ms.Shanti Devi who are parents of accused Mr.Surender. He did not know anything else about the present case.
11. As the witness was hostile and had resiled from his earlier statement, the Additional Public Prosecutor has cross-examined him. He has been cross examined but nothing material for the prosecution has come forth.
Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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12. In his cross examination by the prosecution, PW2 has deposed that the police had not recorded his statement in this case. He had not stated anything in the police as mentioned in his statement Mark X from point A to A1. He was confronted with statement Mark X where it is so recorded. He denied that police had recorded his statement Mark X according to his version. He did not know any person by the name of Mr.Sanjay Pandey. He cannot identify him. He denied the suggestion that he is not intentionally identifying accused Mr.Sanjay Pandey who is present today in the Court as he has settled the matter with all the accused persons. He denied the suggestion that on 21.01.2014 accused Mr.Sanjay Pandey had threatened his son Mr. Vijay to make his daughter understand otherwise he would put her CD on net and thereafter on 30.01.2014 he along with accused Mr.Churamani and accused Ms.Shanti Devi came to his house and threatened to kill his daughter /prosecutrix. He denied that accused Mr.Surender had raped his daughter/prosecutrix on the false promise to marry her. He denied the suggestion that on 06.10.2013 and on 10.01.2014 at G-13, Ground Floor, Jaina Tower II, accused Mr.Surender had beaten his daughter and threatened to throw acid on her. He denied the suggestion that he is not supporting the prosecution case and deposing falsely as his daughter has settled the matter with the accused persons.
13. In his cross examination by all the accused persons, the witness has admitted that accused Mr.Surender has never beaten nor threatened nor raped the prosecutrix/ his daughter. He has admitted that accused Mr.Churamani @ Santosh, Ms.Shanti Devi and Mr.Sanjay Pandey have never threatened to kill his daughter and his son. He admitted that all the Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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accused persons have not committed any offence. He has prayed that all the accused persons may be acquitted as they are innocent.
14. The prosecutrix and PW2, Mr. Brij Mohan, have not deposed an iota of evidence of her being raped, beaten, cheated, threatened to throw acid on face of prosecutrix or beaten by accused Mr. Surender and threatened by accused Mr. Churamani@ Santosh, Ms.Shanti Devi and Mr.Sanjay Pandey to kill prosecutrix. Prosecutrix has not even mentioned the word "rape" by accused Mr.Surender in her evidence nor has deposed anything incriminating against all the accused persons. The prosecutrix has infact deposed that she had physical relations with accused Mr.Surender with her free consent. She has also prayed for acquittal of all the accused persons saying that they are innocent. Even PW2 also prayed for acquittal of all the accused persons saying that they are innocent. Both PWs 1 and 2 have failed to identify accused Mr.Sanjay Pandey.
15. In the circumstances, as PW1, the prosecutrix, who is the star witness and PW2, Mr. Brij Mohan, her father, have turned hostile and have not supported the prosecution case and more importantly has not assigned any criminal role to all the accused persons, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself and her father have not supported the prosecution case and is hostile.
Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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16. Statements under section 313 of the Cr.P.C. of all the accused persons are dispensed with as there is nothing incriminating against them when the prosecutrix and PW2, Mr.Brij Mohan, are hostile and nothing material has come forth in their cross examination by the prosecution.
17. 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.
18. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, and Mr.Brij Mohan, PW2, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
19. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
20. Consequently, no inference can be drawn that accused Mr,Surender is guilty of raping the prosecutrix, cheated her, giving Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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beatings to her or threatening to throw acid on her face. No inference can also be drawn that accused Mr.Churamani @ Santosh, Ms.Shanti Devi and Mr.Sanjay Pandey are guilty of threatening the prosecutrix and her brother. There is no material on record to suggest that the prosecutrix was ever raped, cheated, threatened and beaten by accused Mr.Surender and threatened by accused Mr.Churamani @ Santosh, Ms.Shanti Devi and Mr.Sanjay Pandey. No case is made out against all the accused persons as there is no incriminating evidence against them.
21. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused are innocent and have not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
22. Consequently, no inference can be drawn that accused Mr.- Surender is guilty of the charged offence under sections 376, 417 and 506 of the IPC and accused Mr.Churamani @ Santosh, Ms.Shanti Devi and Mr.Sanjay Pandey are guilty of the charged offence under section 506 of the IPC. There is no material on record to show that on 21.07.2012 at time unknown at Flat No.438, II floor, Meera Bagh, Delhi, accused Mr.Surender raped the prosecutrix on a false promise of marriage, on 06.10.2013 at G-13, G.F.Jaina Tower II, Jain Associates, Delhi (office of accused Mr.- Surender) he again raped the prosecutrix on a false promise of marriage and continued to rape her for about one and half years prior to the lodging of Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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the complaint on 08.02.2014. There is no material on record to show that on 06.10.2013 at G-13, G.F.Jaina Tower II, Jain Associates, Delhi, accused Mr.Surender had abused the prosecutrix and thereafter on 10.01.2014 at G-13, G.F.Jaina Tower II, Jain Associates, Delhi, accused Mr.Surender had again beaten the prosecutrix and threatened to throw acid on her face. There is no material on record to show that on 21.01.2014 at house of the prosecutrix, accused Mr.Sanjay Pandey had threatened Mr. Vinay (brother of the prosecutrix ) to make the prosecutrix understand otherwise they would put the CD of the prosecutrix on Net. There is no material on record to show that on 30.01.2014 accused Mr.Churamani @ Santosh and Ms.Shanti Devi along with co-accused Mr.Sanjay Pandey went to the house of the prosecutrix and threatened to kill her.
23. From the above discussion, it is clear that the case of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences of rape, cheating, threatening to throw acid on face or beating by accused Mr.Surender and threatening by accused Mr.Churamani @ Santosh, Ms.Shanti Devi and Mr.Sanjay Pandey. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. In fact, she has deposed that she had physical relations with the accused with her free consent.
24. 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 accused Mr.Surender for the offences under sections 376, 417 and 506 of the IPC. The prosecution has failed to bring home the Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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charge against accused Mr. Churamani @ Santosh, Ms.Shanti Devi and Mr.Sanjay Pandey, for the offence under section 506 of the IPC.
25. Consequently, the accused, Mr. Surender is hereby acquitted of the charge for the offence under sections 376, 417 and 506 of the IPC and the accused Mr. Churamani @ Santosh, Ms. Shanti Devi and Mr. Sanjay Pandey are hereby acquitted of the charge for the offence under sections 506 of the IPC.
26. Compliance of section 437-A Cr.P.C. is made in the order sheet.
27. Case property be destroyed after expiry of period of limitation of appeal.
28. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
29. Here, I would also like to mention that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape as the prosecutrix retracted and turned hostile. In the circumstances such a person, an acquitted accused, who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.
30. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
31. 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 (NIVEDITA ANIL SHARMA) on this 26th day of July, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 44 of 2014.
Unique Case ID Number : 02401R0139142014.
FIR No. 134/2014, Police Station Rajouri Garden Under sections 366/376/506/34 of the Indian Penal Code.
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