Delhi District Court
State vs . Om Prakash on 13 October, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 66/15.
Unique Case ID No. 02405R0098742015.
State Vs. Om Prakash
S/o Sh. Khyali Ram,
R/o VPO Dhansa, P.S. JP Kalan &
Village Bhaj Pura,
Distt. Rewari (Haryana).
Date of Institution : 07.8.2015.
FIR No. 330 dated 24.12.2014.
U/s. 376/323/506 IPC.
P.S. Jafarpur Kalan.
Date of reserving judgment/Order : 13.10.2015.
Date of pronouncement : 13.10.2015.
JUDGMENT
1. The accused Om Prakash has been facing trial for having committed the offences punishable u/s.376 IPC and u/s.506 IPC. The accusation against him is that he has raped none other than his own daughter in law on 03.11.2014.
2. Prosecutrix 'N' (real name withheld in order to conceal her identity) submitted a written complaint in the police station on 24.12.2012, on the basis of which FIR was registered and the investigation was entrusted to SI Manju. She recorded the statements of the witnesses. The medical examination of the prosecutrix was got conducted in RTRM Hospital. She was also SC No.66/15. Page 1 of 12 produced before the Ld. M.M. who recorded her statement u/s.164 Cr.PC. The IO obtained a copy of the attendance register of the school where accused is posted as a security guard. Potency test of the accused was got conducted in RTRM Hospital. Accused was not arrested as he had been granted anticipatory bail.
3. After completion of the investigation, IO prepared the Charge Sheet and submitted the same to the concerned Ilaqa Magistrate.
4. Upon committal of the case to the court of Sessions, Charge u/s.376 IPC and u/s.506 IPC was framed against the accused on 26.9.2015. Accused denied the charge and hence trial was held.
5. The prosecution has examined seven witnesses to prove the guilt of the accused. The accused was examined u/s.313 Cr.PC on 13.10.2015 i.e. today wherein he abjured his guilt and claimed false implication. He stated that he is posted as Chowkidar in Govt. Sarvodya Kanya Vidalaya, Dhansa, New Delhi, and was on duty from 2 p.m. on 03.11.2014 till 2.30 p.m. on 04.11.2014. He further stated that his son Ishwar Singh, husband of the prosecutrix, was heavily drunk on 12.12.2014 and beat his wife. Thereafter, Ishwar came to him and demanded money from him and when he refused to give any money, started beating him also. Meanwhile, his younger son Des Raj reached home and made a call at telephone no.100. Police officials came to their house and took him as well as Ishwar Singh to the police station where a Kalandra was prepared against both of them. He, however, did not SC No.66/15. Page 2 of 12 lead any evidence in defence.
6. I have heard both the parties and have perused the entire material on record.
7. The prosecutrix has been examined as PW2. She deposed that she was present in her house alone on 03.11.2014 as her husband alongwith their minor daughter had gone to attend the marriage in Paschim Vihar. She further stated that the accused came to their house at about 9.30 p.m. and started abusing her. He threatened her that if she would not agree to have physical relations with him, he would raise alarm and would tell everybody that her daughter is from his loin. Thereafter, accused committed forcible sexual intercourse with her and left. She narrated the incident to her husband on 12.12.2014 and when her husband went to the house of the accused to ask him why he had done so, the accused alongwith his wife, daughter and another daughter in law caught hold of her husband and started beating him. She also rushed to the spot and tried to intervene but the accused pushed her against a wall and held her throat, upon which she became unconscious.
8. She further deposed that when she regained consciousness, she found herself inside a room and a lady residing in the neighbourhood was with her. She had received severe injury on her left eye, as a result of which she was unable to see with that eye. She had also received injury on the two fingers of her left eye. Thereafter, she made a call at telephone no.100. Police officials came to their house and took her alongwith her husband SC No.66/15. Page 3 of 12 and the accused to the police station. Her statement was recorded in the police station but she did not mention about the rape incident dated 03.11.2014 in that statement as she wanted to consult her husband before mentioning about the same. She further submitted that she went to the ITO after about three days and submitted a complaint there. She was then summoned to P.S. Jafarpur Kalan after about 10 to 15 days where again inquiries were made from her. According to her, this time SI Manju wrote a complaint on her behalf which she signed. She proved the said complaint as Ex.PW2/A. She also proved her statement u/s.164 Cr.PC as Ex.PW2/B.
9. In the cross examination conducted on behalf of the accused, she deposed that the accused had been engaged in sexual intercourse with her since the two years after her marriage but she did not apprise her husband about the same. She did not tell her husband about the acts of the accused till 12.12.2014. She stated that her sister is married to her brother in law (Jeth). However, she did not tell her sister also about these incidents of sexual assault. She admitted that her relations with her parents were never cordial and she is annoyed with her in laws for the last ten years. She stated that her mother in law used to abuse her and her father in law i.e. accused used to intervene and assault her which was the reason for quarrel between her and the accused. Police had also been called on one or two occasions.
10. She further deposed that her husband had returned from the marriage in the afternoon of 04.11.2014 but she did not narrate the rape incident to him till 12.12.2014. She stated that SC No.66/15. Page 4 of 12 she narrated the incident to her husband on 12.12.2014 as there had been a quarrel between her and the accused in the afternoon on that date. To a specific question put to her, she replied that she did not raise alarm on 03.11.2014.
11. The husband of the prosecutrix has been examined as PW4. He deposed that he alongwith minor daughter Jhanvi had gone to Madangir, near Devli Khanpur, New Delhi, on 03.11.2014 to attend the marriage of the brother of his friend and returned home in the afternoon of the next day. He further stated that his wife told him on 12.12.2014 that his father had raped her on 03.11.2014. When he approached his father to ask him why he had done so, he started beating him and also beat his wife, who sustained injuries in her eye and the finger of her hand. His father then made a call at telephone no.100. Police came to their house and took him alongwith his father to the police station. He further stated that he alongwith his wife reached the police station on 24.12.2014 where his wife submitted a written complaint Ex.PW2/A on which he had signed at point B. In the cross examination, he admitted that neither he nor his wife narrated the rape incident dated 03.11.2014 to the police officials on 12.12.2014.
12. The IO appearing as PW9 has deposed in her cross examination that she had come to know during the course of investigation that there used to be quarrels between the prosecutrix, her husband and the accused prior to 12.12.2014 also and a quarrel had taken place between them on 12.12.2014 also.
SC No.66/15. Page 5 of 1213. PW7 has proved the copy of Kalandra dated 12.12.2014 prepared against the husband of the prosecutrix and the accused as Ex.PW7/A and the copies of order dated 12.3.2015 and 08.7.2015 passed by the Ld. Executive Magistrate as Ex.PW7/C and Ex.PW7/D respectively.
14. A bare scrutiny of the evidence led by the prosecution reveals that the version of the prosecutrix is neither credible nor trustworthy. There are various discrepancies in the prosecution case which go to its root and make it immensely doubtful. The prosecution has also failed to explain the delay of almost two months in lodging the FIR.
15. According to the prosecutrix, she was present alone in her house in the late hours of 03.11.2014 when her father in law i.e. the accused came there and committed rape upon her. She has stated that her husband alongwith their minor daughter had gone to attend a marriage in Paschim Vihar. However, her husband (PW4) has deposed that he alongwith his minor daughter had gone to attend the marriage of the brother of his friend at Madangir, near Devli Khanpur, New Delhi. The contradictory statements regarding the place of marriage given by these two witnesses demonstrate that a false story has been fabricated in this regard. Further, the investigating officer has not taken any trouble to make any investigation to find out as to whether in fact PW4 had gone to attend any marriage on 03.11.2014. No eye witness to the marriage who had seen PW4 also present there has been produced as a witness. PW4 has not mentioned the name of his friend or the friend's brother, who was going to be married on SC No.66/15. Page 6 of 12 that day. It is also not understandable as to when PW4 took his minor daughter alongwith him to the marriage function, why did he not take his wife too alongwith him.
16. Therefore, it appears to be only a fabricated story that PW4 had gone to attend a marriage on 03.11.2014 and the prosecutrix was present alone in her house. Hence, the very foundation of the prosecution case is found to be shaky, which would lead to definite conclusion that the structure built upon the same is destined to fall flat.
17. Though the prosecutrix is stated to have been raped by the accused on 03.11.2014, yet she did not narrate the incident to her husband till 12.12.2014 i.e. for more than a month. It is not the case of the prosecution that the accused had threatened her not to narrate the incident to anybody. It is also not the case of the prosecution that the relations between prosecutrix and her husband were not cordial or that they had not met each other or were not on talking terms to each other during this period. The prosecutrix has herself deposed in the cross examination that her husband returned from the marriage in the afternoon of 04.11.2014 but she did not narrate the rape incident to him till 12.12.2014. She has nowhere explained as to why she did not apprise her husband about the rape incident till 12.12.2014.
18. It has been deposed by the prosecutrix and her husband (PW4) that when the prosecutrix told her husband that she was raped by his father i.e. accused on 03.11.2014, her husband approached the accused to ask him why he had done so, SC No.66/15. Page 7 of 12 upon which the accused started beating him in the middle of the road. The accused also beat the prosecutrix who had gone to intervene and she sustained injuries on her left eye and fingers of her left hand. The prosecutrix has further deposed that she made a call at telephone no.100 whereas PW4 has deposed that his father i.e. accused made a call at telephone no.100.
19. It is the case of the prosecution itself that police had reached the spot and took both the accused as well as PW4 to police station and a Kalandra u/s.107/151 Cr.PC was prepared against both of them. The copy of the Kalandra is Ex.PW7/A and the copy of DD No.56B dated 12.12.2014 recorded in P.S. Jafarpur Kalan in this regard is Ex.PW7/B. It appears that the statement of the prosecutrix had also been recorded in these proceedings by HC Satish. The order dated 12.3.2015 passed by Special Executive Magistrate on this Kalandra which is Ex.PW7/C shows that it was found that PW4 was the aggressor and the accused had taken steps in his self defence only. Therefore, the accused had been discharged vide the said order.
20. Two things are manifest from the aforesaid proceedings u/s.107/151 Cr.PC initiated against PW4 and the accused on 12.12.2014. Firstly that the quarrel had been initiated by PW4 and he was the aggressor, not the accused as claimed by PW4 and the prosecutrix. Secondly that according to prosecutrix and PW4, the quarrel had taken place when PW4 had gone to the accused to ask him why he had sexually assaulted his wife. However, it appears that the prosecutrix and her husband PW4 very conveniently forgot the rape incident during these SC No.66/15. Page 8 of 12 proceedings and did not tell either to the police officials or the Special Executive Magistrate that a rape incident had taken place on 03.11.2014 wherein accused had raped the prosecutrix. PW4 has admitted in his cross examination that neither he nor his wife narrated the rape incident dated 03.11.2014 to the police officials on 12.12.2014. It is very surprising that the prosecutrix and her husband would not narrate the rape incident to the police officials on 12.12.2014, when, according to them, the reason for the quarrel on that day between them and the accused was the rape incident itself. This lends credence to the alibi taken by the accused in his statement u/s.313 Cr.PC that PW4 was heavily drunk on 12.12.2014 and had come to demand money from him and on his refusal to pay money to him, PW4 started beating him and his wife. Be it noted here that the Special Executive Magistrate has also mentioned in the order dated 12.3.2015 Ex.PW7/C that it is found from the evidence on record that PW4 Ishwar is a drunkard and has been quarrelling with his father for money.
21. Even if it be assumed for the sake of arguments that for certain reasons, the prosecutrix and her husband PW4 could not mention the rape incident to the police officials on 12.12.2014, even then there is further delay of 12 days in reporting the incident to police and the said delay has also not been explained at all. The prosecutrix and PW4 have sent a written complaint Ex.PW2/A to the police station on 24.12.2014. None of them has tried to explain why did not they visit the police station in between and why they maintain eerie silence in this regard till 24.12.2014.
SC No.66/15. Page 9 of 1222. The investigating officer, appearing as PW9, has deposed that she served a notice u/s.91 Cr.PC upon the Principal, Sarvodya Govt. Girls School, Dhansa, with the direction to produce the Duty Roster of accused Om Prakash who is employed there as a Security Guard. She further deposed that the Principal of the school handed over to her an attested copy of the attendance register for the month of November, 2014 which she proved as Ex.PW9/A. A perusal of this document shows that the accused was on duty as a Security Guard in the aforesaid school continuously from 2 p.m. of 03.11.2014 till 2.30 p.m. of 04.11.2014. Hence the evidence collected by the investigating officer herself demonstrates that the accused was on duty during the night intervening between 03.11.2014 and 04.11.2014 and therefore, the version of the prosecutrix that the accused had come to her house at about 9.30 p.m. on 03.11.2014 and raped her get falsified. No evidence has been collected by the police to indicate that the accused was not on his duty between 9 p.m. and 10 p.m. on 03.11.2014.
23. I may also note here that the prosecutrix has deposed in the cross examination that her relations with her parents in law were never cordial and she used to remain annoyed with them. She has also admitted that her husband used to demand his share from his parents. She has also deposed that her mother in law used to abuse her and her father in law i.e. accused used to intervene and assault her which was the reason for quarrel between her and the accused.
24. Hence the assessment of the evidence led by the SC No.66/15. Page 10 of 12 prosecution clearly indicates that no rape incident at all had taken place with the prosecutrix on 03.11.2014 as mentioned by her. There used to be quarrels between the prosecutrix, her husband and her parents in law often. Her husband had quarrelled with his parents i.e. accused and his wife on 12.12.2014 also, upon which a Kalandra u/s.107/151 Cr.PC had been framed against her husband and the accused. Her husband used to demand his share from the accused, who was refusing to oblige him. There have been strained and quarrelsome relations between the prosecutrix and her in-laws which aggravated to a new height on 12.12.2014. It is quite evident that pursuant to the said incident dated 12.12.2014, the prosecutrix and her husband hatched a conspiracy to frame the accused in a false rape case and to achieve their ulterior motive, sent a written complaint Ex.PW2/A to the police station alleging therein that the accused has raped the prosecutrix on 03.11.2014 whereas the accused was present on his duty throughout from 2 p.m. of 03.11.2014 till 2.30 p.m. of 04.11.2014.
25. Resultantly, the accused is hereby acquitted.
26. This case presents a very dim and gloomy view of the society where even the old aged people also are not spared of the false rape accusations. The fathers and fathers in law are now being framed in false rape cases only to settle the petty domestic triffles. The accused in the instant case, who has already seen 60 summers of his life, had to face trial on the false charge of having raped his own daughter in law. The ignominy and humiliation suffered by him can't be described in words. Rape is the most hated and abominable crime in the society. Everybody looks upon SC No.66/15. Page 11 of 12 a rape accused with hatred and keeps away from him. It can't be disputed that false accusations of rape cause immense trauma and distress to the accused. Many a times, it becomes difficult for them to join the mainstream even after their acquittal by the court.
27. Giving false evidence on oath in a court has become a menace and growing day by day. Time has come to nip this evil by dealing with a heavy hand upon the witnesses who give false evidence in court. The Supreme Court in Mahila Vinod Kumari vs. State of M.P., AIR 2008 SC 2965, has also observed that the evil of perjury has assumed alarming proportions in cases depending upon oral evidence and in order to deal with this menace effectively, it is desirable for the courts to use this provision (of section 340 Cr.PC) more effectively and frequently than it is presently done.
28. In the instant case, it is prima facie clear that PW2 and PW4 has given false testimony in order to ensure conviction of the accused on the false rape charge. Therefore, I feel it in interests of justice to direct their prosecution u/s.340 Cr.PC for having committed the offence of perjury punishable u/s.193 IPC.
29. The Reader of the Court, is therefore, directed to file a complaint in this regard before the Ld. C.M.M., Dwarka Courts.
Announced in open (VIRENDER BHAT)
Court on 13.10.2015. Addl. Sessions Judge
(Special Fast Track Court)
SC No.66/15. Page 12 of 12