Delhi District Court
Vs. Puttraj 2004 (1) Scc 475" And "Om ... vs . State Of U.P. 2006, on 20 August, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 28736/2016
Assigned to Sessions. 19.07.2016
Arguments heard on 06.08.2018
Date of Judgment 20.08.2018
FIR No. 711/2015
State V Akshay Talwar s/o. Vinod Talwar,
r/o. H. No.38D, LIG Flats, Moti
Khan, Pahar Ganj, Delhi.
Police Station Pahar Ganj
Under Section 328/376 (2)(n) IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Pahar Ganj had filed
a challan vide FIR No.711/2015 dated 23.12.2015 u/s. 328/376/506 IPC for the
prosecution of accused Akshay Talwar in the court of ld. Metropolitan
Magistrate. After compliance of the requirement of section 207 Cr. P.C. the
case was sent to this court being the designated Special Fast Track Court for
trial of the offences of sexual assault against the women through the Office of
Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view
of section 228 (A) IPC and directions of Supreme court in "State of Karnataka
Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006,
CRLJ. 2913", the name of prosecutrix is not being disclosed in the judgment.
Case No.28736/2016
State Vs. Akshay Talwar 1/20
BRIEF FACTS OF THE CASE:
2. In this case criminal law was set into motion on the basis of complaint dated 18.10.2015 of prosecutrix Ex.PW2/A and FIR No. 711/2015 u/s 328/376/506 IPC was registered. In her complaint prosecutrix had narrated that accused is son of her nanad and he used to visit her house. She further stated that one day of May 2015 May, when accused had come to her house with juice, served the same and when she consumed the same she had become unconscious and when she regained the consciousness she had asked the accused what he had done with her?, he replied to her stating that "meine jo kiya so kiya", "ab kisi ko kaha to mein photo dikha dunga" and thereafter, he committed sexual intercourse with her repeatedly.
3. She further stated that on 02.07.2015 accused took her to a Mandir at Mehrauli and started doing "Jabardasti" and from there he took her to a Hotel and again started doing "jabardasti" and that when she started making noise accused sent her back. She further stated that when she got fed up with the aforesaid behaviour of the accused, she narrated the entire incident to her husband and that her husband stopped the entry of the accused in her house and further told him that he had forgiven him and now he should not come to their house. She further stated that accused continue to come at her house despite warning of her husband. On the basis of aforesaid complaint, she wants legal action against the accused.
4. During investigation, W/SI Suman prepared Rukka on 18.10.2015 and got the case registered. She got the prosecutrix counselled. She inspected the place of incident and prepared site plan and arrested the accused on the identification of prosecutrix.
Case No.28736/2016 State Vs. Akshay Talwar 2/205. W/SI Suman taken the prosecutrix to Lady Harding Medical College where she was medically examined but prosecutrix refused for her internal examination.
6. On 18.10.2015, accused was arrested at the instance of prosecutrix and he was also medically examined in the LHMC Hospital and on 09.11.2015 his potency test was conducted from RML Hospital.
7. On 26.10.2015 statement of prosecutrix u/s 164 Cr.P.C. was got recorded by Ms. Manu Vedwan, Ld. MM.
8. During the course of investigation, exhibits were sent o FSL Rohini and chargesheet was filed in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. During course of trial, I.O. of the case has also filed the FSL report in the court.
CHARGE:
9. On the basis of material available on record, this court vide order dated 16.08.2016 framed charges against accused Akshay Talwar for the offence punishable u/s 328/376 (2)(n) IPC to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
10. In order to prove its case prosecution has examined 12 witnesses namely PW1 HC Nihal Singh, PW2 Prosecutrix 'P', PW3 Dr. Supriya Goel, PW4 Sh.Case No.28736/2016 State Vs. Akshay Talwar 3/20
Baljeet Singh, PW5 Sh. Manoj Joshi, PW6 SI Heera Lal, PW7 Sh. Rohit Bhandari, PW8 Dr. Manasa, PW9 Ct. Kuldeep, PW10 W/SI Suman, PW11 Ms. Manu Vedwan, M.M. and PW12 HC Pramod.
11. PW1 HC Nihal Singh is Duty Officer. He has proved rukka vide Ex.PW1/A, computerized copy of the FIR vide Ex.PW1/B, endorsement on rukka vide Ex.PW1/C and Certificate u/s 65B of Evidence Act qua the present FIR vide Ex.PW1/D. He deposed that facts of endorsement were also recorded in DD entry register vide DD No.20A Ex.PW1/E).
12. PW2 Prosecutrix 'P' is a material witness being victim and complainant. She deposed that she is 12th class pass and got married in the year 1996. She further deposed that she has been blessed with three children. PW2 stated that accused present in the court (correctly identified) is the son of her sisterinlaw (Nanad). He also along with his family is residing in her locality. She further deposed that being a relative he used to visit their house frequently. They became friendly. Their friendship continued for about 6 years. She further deposed that on account of their friendship her husband became suspicious about her relation with the accused. She further deposed that when she asked the accused not to visit her house, he became so violent, started making noise and abusing her, but he did not stop visiting her house. She further deposed that on account of the said behaviour of the accused, she even tried to commit suicide on 20.07.2015. She further deposed that finally, she lodged the present complaint. She proved her complaint vide Ex.PW2/A. She has proved her MLC vide Ex.PW2/B. She has also proved her statement u/s 164 Cr.P.C. vide Ex.PW2/C. She further deposed that since she was not feeling well, she had stated in her aforesaid statement that she did not want to pursue the case.
Case No.28736/2016 State Vs. Akshay Talwar 4/2013. On Court Question: Had you stated to the I.O. that you were not feeling well at the time of writing the complaint Ex.PW2/A? This witness replied that she had not stated to the I.O. that she was not feeling well.
14. This witness was declared hostile by Ld. Addl. PP for the State. In cross examination by Sh. A.T. Ansari, Ld. Addl. PP for State, this witness admitted that complaint Ex.PW2/A is in her handwriting and that whatever accused had done with her during her relation with him, she had mentioned the same in her aforesaid complaint. She further admitted that she has also referred the incident of May, 2015 when accused had come to her house with juice, served the same and when she consumed the same she had become unconscious and when she regained the consciousness she had asked the accused what he had done with her?, he replied to her stating that "meine jo kiya so kiya", "ab kisi ko kaha to mein photo dikha dunga" and thereafter he committed sexual intercourse with her repeatedly and that on 02.07.2015 accused took her to a Mandir at Mehrauli and started doing "Jabardasti" and from there he took her to a Hotel and again started doing "jabardasti" and that when she started making noise accused sent her back and that when she got fed up with the aforesaid behaviour of the accused, she narrated the entire incident to her husband and that her husband stopped the entry of the accused in her house and further told him that he had forgiven him and now he should not come to their house. She admitted that accused continue to come at her house despite warning of her husband. She admitted that physical relations established by the accused with her were without her consent. She had also narrated the incident to the doctor who had conducted her medical examination.
Case No.28736/2016 State Vs. Akshay Talwar 5/2015. On being cross examined by Sh. Bimlesh Kumar, ld. counsel for accused, this witness admitted that initially their relations were so cordial and that they used to visit along with family members in so many places. She deposed that she had got registered the present FIR on 18.10.2015. Prior to that she never made any 100 number call or any police complaint. This witness admitted that she had registered the present FIR only due to her emotions and 'pareshan hokar' and that she wanted to teach the accused a lesson and only for that reason she had got registered the present FIR.
16. PW3 Dr. Supriya Goel has proved MLC of prosecutrix vide Ex.PW2/B on behalf of Dr. Priyanka Chauhan, SR, Department Obs. & Gynae., Lady Harding Medical College & Hospital, Delhi.
17. PW4 Sh. Baljeet Singh is the husband of prosecutrix. He deposed that he got married with prosecutrix in the year 1996. They have three children including two sons and one daughter.
18. PW4 further deposed that on 20.07.2015, his wife/prosecutrix attempted to commit suicide by consuming the whole stripe of Alprax tablets. He further deposed that father and mother of the accused along with his elder son and daughter had taken the prosecutrix to Geetanjali Nursing Home, Dev Nagar, Delhi. PW4 further deposed that when he asked his wife the reason for attempting to suicide by her, she revealed to him that accused had affair with her and that accused had been harassing her for the last four months. She further told to him that "tumhe batati toh marti hoon, aur waise bhi marr rahi hoon". She further told him that she had physical relation with the accused for the last six years and that in the month of May 2015 she had refused the Case No.28736/2016 State Vs. Akshay Talwar 6/20 accused to carry the said relation, but he wanted to continue with the said relations with her.
19. On Court Question: Whether the aforesaid physical relations were with the consent of prosecutrix or without her consent? This witness replied that his wife told him that physical relations always established by the accused were with her consent.
20. He further deposed that after coming to know the said facts, he talked with the accused about the same and also slapped him. Accused told him that "tumhari biwi meri property hai". He further deposed that for about four months accused continuously harassed him, even in his absence he used to come outside his house and used to do shouting and also used to make "Ulte Sidhe" comments. He further deposed that on 18.10.2015, he alongwith his wife/prosecutrix went to police station, where she made complaint already Ex.PW2/A.
21. This witness was cross examined by Sh. A.T. Ansari, Ld. Addl. PP for the State. On being cross examined by Ld. Addl. PP for the State, this witness had denied to the suggestion that after the incident of suicide his wife had disclosed to him that in May 2015 accused served juice mixed with sedative to her and committed rape on her. This witness had denied to the suggestion that she had stated the aforesaid facts in her statement given to the police, Ex.PW4/A. He was confronted with the statement Ex.PW4/A, wherein the said facts are recorded at point 'A to A'. this witness admitted that accused is his real nephew.
22. On being cross examined by Sh. Abhinav Bajaj, ld. counsel for accused, this Case No.28736/2016 State Vs. Akshay Talwar 7/20 witness deposed that after about three months of knowing the facts of relations between accused and prosecutrix, he along with prosecutrix went to the police station for registration of FIR.
23. PW5 Sh. Manoj Joshi is the Duty Manager of Hotel The Royal Plaza. He deposed that he had worked as a Duty Manager at Hotel The Royal Plaza, 19 Ashoka Road, New Delhi from November, 2014 to November, 2015. He further deposed that on 19.10.2015, he had handed over the copy of the relevant entries of hotel guest arrival and departure register along with copy of the ID proof of guest/accused Akshay Talwar to the IO who seized the same vide seizure memo Ex.PW5/A. He has proved copy of the said entries and ID proof duly attested by him are marked as MarkA1 (running into two pages) and MarkA2 (running into two pages) respectively.
24. On being cross examined by Ms. Sukriti, ld. counsel for accused, he deposed that he had only handed over the said documents to the police. The said entries were not made by him. He has never met the accused.
25. PW6 SI Heera Lal has taken the accused to RML Hospital for getting potency test and he had got his potency conducted vide MLC Ex.PW6/A.
26. PW7 Sh. Rohit Bhandari is the Director of Rooms at Hotel The Royal Plaza. He deposed that he is working as a Director of Rooms at Hotel The Royal Plaza, 19 Ashoka Road, New Delhi since one year and two months. He has brought the hotel departure and arrival register (hotel guest register) containing relevant entries pertaining to the guest/accused Akshay Talwar mentioned at serial no. 31752 of the said register. He deposed that as per record accused and Case No.28736/2016 State Vs. Akshay Talwar 8/20 prosecutrix had checkedin in the said hotel on 03.07.2015 and accused was allotted room no.1610 for a day. He proved photocopy of the said register running into two pages are already MarkA1 (colly.) (OSR). He further deposed that accused had also submitted his ID proof i.e. driving license at the time of checkin vide MarkA2 and prosecutrix had submitted copy of her Aadhaar card as her ID vide MarkA3. However, they had checkedout the hotel at 12:52 hours on the same day, while they had checkedin the hotel at 09.28 am. He has brought the printout of copy of the invoice issued to the guest and proved the same vide Ex.PW7/A.
27. PW8 Dr. Manasa, has conducted medical examination qua potency test of accused vide endorsement at point A to A at the back of MLC Ex.PW6/A and found nothing to suggest that patient/accused was incapable to perform sexual intercourse.
28. PW9 Ct. Kuldeep had taken the custody of parcels containing exhibits pertaining to this case in sealed condition along with sample seal from MHC(M), PS Pahar Ganj, carried them to FSL Rohini vide Road Certificate and deposited the same at FSL Rohini. He has proved the copy of the Road Certificate vide MarkA and copy of the acknowledgement with regard to receipt of the said exhibits vide MarkB. He deposed that the said exhibits/case property were not tampered with in any manner till they remained in his custody.
29. PW10 W/SI Suman is the investigating officer. She has deposed on the lines of investigation. He has proved the complaint vide Ex.PW2/A. She made endorsement thereon at point D to D bearing her signature at point E and got Case No.28736/2016 State Vs. Akshay Talwar 9/20 the present FIR registered. She also called a counselor from an NGO and she had given counseling to the prosecutrix at police station. She got the medically examined the prosecutrix from Lady Harding Medical College vide MLC Ex.PW2/B. She deposed that prosecutrix had refused to undergo her internal medical examination. She deposed that she prepared site plan at the instance of the prosecutrix but the same is not judicial record.
30. On Court question: Why it is not on judicial record? She replied that the time of preparing echallan, it was left out to be placed on the record of judicial file. She has proved site plan vide Ex.PW10/A. (Objected to by Ld. counsel for accused on the ground that same has been prepared at later stage, therefore, it cannot be allowed).
31. During the course of investigation, she arrested the accused vide arrest memo Ex.PW10/B, his personal search was also conducted vide personal search memo Ex.PW10/C and recorded the disclosure statement of the accused, Ex.PW10/D. She deposed that after being arrested accused produced his Samsung Duos mobile phone with SIM. She seized the same vide seizure memo Ex.PW10/E. Pursuant to his disclosure statement accused also pointed out the place of both the incidents i.e. hotel Royal Plaza and the house of the prosecutrix vide pointing out memos Ex.PW10/F and Ex.PW10/G. She also seized the hotel guest entry register and copy of ID of both the accused and prosecutrix, already MarkA1, MarkA2 and MarkA3 vide seizure memo already Ex.PW5/A. She has also got the medical examination of the accused conducted in the company of Ct. Sri Krishan and on 09.11.2015 she had also got the potency test of the accused conducted through SI Heera Lal. She has also got the statement of the prosecutrix under section 164 Cr.P.C. recorded Case No.28736/2016 State Vs. Akshay Talwar 10/20 vide Ex.PW2/C.
32. She further deposed that on 28.12.2015, she had got sent the aforesaid mobile phone of the accused through Ct. Kuldeep to FSL Rohini for retrieving the data from the same. She has proved FSL report vide Ex.PW10/K. The data retrieved by the FSL officials have been preserved in CD which was extracted from the mobile phone make Samsung. CD is Ex.PW10/M.
33. She has correctly identified the mobile phone make Samsung bearing IMEI No. 355886058431795 and 35887058431793 having one SIM of Vodafone which she had seized from the possession of the accused and which was sent to FSL Rohini vide Ex.P1.
34. PW11 Ms. Manu Vedwan, M.M. has recorded the statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW2/C.
35. PW12 HC Pramod is MHC(M). He has proved entry no. 3444 in register no. 19 vide Ex.PW12/A (OSR). Said entries were made in my own handwriting. He has proved copy of the RC and acknowledgement receipt vide Ex.PW12/B and Ex.PW12/C respectively (OSR).
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
36. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. Accused denied all the incriminating evidence against him. Accused claimed that it is a false rape case against him and he has not done anything wrong with the prosecutrix. He deposed that he was having sexual relationship with the prosecutrix for last six years. He further deposed that one day husband Case No.28736/2016 State Vs. Akshay Talwar 11/20 of the prosecutrix saw her roaming with prosecutrix and he threatened him that he would file a false complaint against him and he forced prosecutrix to file a false case against him. He is innocent. He further claimed that he has not done anything against the wish or consent of the prosecutrix. Accused has preferred to lead defence evidence.
DEFENCE EVIDENCE:
37. Accused has examined defence evidence i.e. DW1 Sh. Anil Kumar Talwar.
38. DW1 Sh. Anil Kumar Talwar is the real uncle of accused Akshay Talwar. He deposed that that on 19.07.2015 he was called by the maternal uncle of accused namely Baljeet at his house in Motia Khan, DDA Flats, Delhi and he disclosed to him that there was some affair going on between his wife/prosecutrix and accused and he had come to know about this only that day. Accused and wife of Sh. Baljeet was also called and during the meeting it was told by the prosecutrix that she had done a mistake and she agreed not to continue her relationship with accused. At that time husband of prosecutrix became angry and told that he would lodge a case against accused. Prosecutrix requested her husband Baljeet not to make complaint as she would not do anything further with accused. He deposed that Baljeet forced his wife to make a complaint against the accused, otherwise he would leave her. He again requested Baljeet not to lodge a false case against the accused as his wife herself was at fault in the relationship which took place between accused and prosecutrix. He further deposed that accused has been falsely implicated by prosecutrix under pressure from her husband. He further deposed that prosecutrix had even told her husband that she would commit suicide if her husband would not forgive her and accused.
Case No.28736/2016 State Vs. Akshay Talwar 12/2039. On being cross examined by Sh. M. Zafar Khan, ld. Addl. PP for State, this witness deposed that she did not lodge any complaint with police or in court that prosecutrix was being pressurized by her husband to make a complaint against the accused. He denied to the suggestion that he has deposed falsely to save the accused being his relative or that accused had put prosecutrix under pressure by taking her photographs and in that way had sexual intercourse with the prosecutrix several times. He further deposed that he was on frequent visiting terms in the house of prosecutrix and she used to tell him that she had no grievance against accused of any kind. Thereafter, D.E. was closed and case was fixed for arguments.
ARGUMENTS:
40. Ld. counsel for accused argued and submitted that accused and prosecutrix are known to each other from long time and had good friendship. The prosecutrix is an educated and matured lady who is married and having children who is very conscious of her acts and consequences. Accused as well as prosecutrix were relatives who developed intimacy towards each other and had physical mutual consensual relations which were never exposed by the prosecutrix at any point of time.
41. Ld. counsel for accused submitted that from the statement of prosecutrix it is clear that she used to visit places outside with the applicant and other family members but she never complained about any alleged crime, reason being the relations between both were consensual in nature.
42. Ld. counsel for accused further submitted that as per the case of prosecution the applicant had clicked few photographs of the prosecutrix and he used to Case No.28736/2016 State Vs. Akshay Talwar 13/20 threaten her but contrary to this allegation, the prosecution miserably failed to provide any such photograph or video on record. Mobile phone of the applicant had sent to the FSL department but nothing concrete favoring the prosecution came on record in form of FSL result, hence, the alleged allegation of nude photographs and blackmailing the prosecutrix cannot believed as a gospel truth.
43. Ld. counsel for accused further submitted that no independent witness i.e. family member or relatives has been made as a witness who can substantiate the case of prosecution.
44. Ld. counsel for accused further submitted that prosecutrix during her cross examination by ld. Addl. PP stated that she narrated the whole incident to her husband while contrary to this her husband i.e. PW4 did not stated anything about the alleged incident of administration of mixed Juice or forced sexual relationship. PW4 during his deposition specifically deposed that prosecutrix told him that the physical relations were established between prosecutrix and the accused with their own consent.
45. Ld. counsel for accused further submitted that DW1 stated that prosecutrix had told her husband in his presence not to harass her otherwise she will take some severe steps. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
46. On the other hand, Ld. Addl. PP for the State submitted that prosecutrix has deposed on all material facts of the case when she was assisted by the Ld. Addl. PP that the condition of the prosecutrix was such that she being a relative of Case No.28736/2016 State Vs. Akshay Talwar 14/20 accused was exploited by him by establishing physical relationship with her. She has specifically stated that relationship established by accused were without her consent. She has also stated that she had asked accused to stop visiting her house but the accused did not agree and due to the behaviour of accused she had even attempted commit suicide.
47. Ld. Addl. PP for the State further submitted that the overall testimony of prosecutrix when read with the testimony of her husband PW4 Sh. Baljeet Singh is very cogent and inspiring confidence regarding the situation in which prosecutrix was placed by accused and then he established physical relationship.
48. Ld. Addl. PP for the State further submitted that the accused had already admitted the fact of his being in relationship with the prosecutrix in his examination under section 313 Cr.P.C. and has only taken a plea that he was seen by the husband of prosecutrix, therefore, a false case was got prepared against him by the prosecutrix being under pressure from her husband which shows that accused had accepted that he has established physical relation with the prosecutrix. So, the version of prosecutrix has to be believed as she has stated that physical relationship was established by accused against her consent. As such, accused may be convicted.
PERUSAL OF RECORD:
49. Arguments heard. Record perused. On perusal of record, it is revealed that on the complaint o prosecutrix Ex.PW2/A, present FIR Ex.PW1/B was registered against the accused.
Case No.28736/2016 State Vs. Akshay Talwar 15/2050. It is further revealed that PW2 prosecutrix was medically examined through police in Lady Harding Medical College vide MLC Ex.PW2/B.
51. It is further revealed that statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW2/C by the Ld. Magistrate.
52. It is further revealed that on 18.10.2015 PW1 HC Nihal Singh registered FIR Ex.PW1/B on the basis of rukka received from PW10 W/SI Suman after making endorsement Ex.PW1/C; he also gave certificate Ex.PW1/D under section 65 B of the Evidence Act regarding correct contents of computerized copy of FIR.
53. It is further revealed that PW10 W/SI Suman along with W/Ct. Anju took prosecutrix to Lady Hardinge Medical College, where prosecutrix was examined by Dr. Priyanka Chauhan, who prepared MLC Ex.PW2/B which was proved by PW3 Dr. Supriya Goel.
54. It is further revealed that on 18.10.2015 PW10 W/SI Suman visited the spot of incident along with prosecutrix and prepared site plan Ex.PW10/A.
55. It is further revealed that on 18.10.2015 at about 11:40 a.m. PW10 W/SI Suman on the identification of prosecutrix in the presence of Ct. Shri Krishan arrested accused from H.No. 38D, DDA Flats, Motia Khan, Paharganj, Delhi and arrest memo Ex.PW10/B was prepared in this regard; his personal search Ex.PW10/C was also conducted; his disclosure statement Ex.PW10/D was also recorded.
56. It is further revealed that during interrogation accused disclosed about taking of the photographs of the prosecutrix from his mobile phone make Samsung, Case No.28736/2016 State Vs. Akshay Talwar 16/20 which was seized by the IO PW10 W/SI Suman vide seizure memo Ex.PW10/E; accused also pointed out his house where you raped prosecutrix and memo Ex.PW10/G was prepared in this regard.
57. It is further revealed that on 19.10.2015 IO PW10 W/SI Suman alongwith Ct.
Shri Krishan reached Hotel Royal Plaza from where she seized the copy of entry of register, ID of accused and ID of the prosecutrix for staying in the hotel vide seizure memo Ex.PW5/A.
58. It is further revealed that accused was medically examined vide Ex.PW6/A;
accused was found capable of performing sexual intercourse under normal circumstances by PW8 Dr. Manasa.
59. It is further revealed that PW7 Sh. Rohit Bhandari deposed that he is the Director of Hotel the Royal Plaza, 19 Ashoka Road, Delhi; he produced the record of stay of accused with the prosecutrix in the hotel on 03.07.2015 in room no. 1610; he also produced the invoice of the bill issued regarding stay of accused vide Ex.PW7/A.
60. It is further revealed that PW9 Ct. Kuldeep had taken the exhibits of this case to FSL Rohini and deposited there vide road certificate MarkA; he also obtained acknowledgement MarkB and deposited the same in the Malkhana.
61. It is further revealed that PW12 HC Pramod deposed that on 18.10.2015 he had deposited the exhibits of this case vide entry Ex.PW12/A of register no. 19; on 28.12.2015 he had sent the exhibits to FSL through Ct. Kuldeep vide RC No.163/21/15, Ex.PW12/B and obtained acknowledgement Ex.PW12/C which he received from Ct. Kuldeep on his return.
Case No.28736/2016 State Vs. Akshay Talwar 17/2062. Before reaching at any conclusion, let the relevant sections i.e. 328/376 (2)(n) IPC be reproduced, which are as under: Section 328 IPC.
Causing hurt by means of poison, etc. with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or with thing with intent to cause hurt to such person, or with intent to commit or to facilities the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 376 (2) (n) IPC:
(2) Whoever,
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
FINDINGS:
63. Arguments heard. Record perused. On perusal of record, it is revealed that present case was registered on the complaint of prosecutrix Ex.PW2/A. Prosecutrix has been examined as PW2. During her deposition, prosecutrix had submitted that accused present in the court is the son of her sisterinlaw (Nanad). He also along with his family is residing in her locality. She further deposed that being a relative he used to visit their house frequently. They became friendly. Their friendship continued for about 6 years. She further deposed that on account of their friendship her husband became suspicious about her relation with the accused. She further deposed that when she asked the accused not to visit her house, he became so violent, started making noise and abusing her, but he did not stop visiting her house. She further deposed that on account of the said behaviour of the accused, she even tried to commit suicide on 20.07.2015.
Case No.28736/2016 State Vs. Akshay Talwar 18/2064. When the overall testimony of the prosecutrix when read with the testimony of PW4 Baljeet Singh, her husband, it is found that they could not explain the reasons why the matter was not reported to the police. It was expected from any aggrieved person who has suffered any injury or trauma by the act of an accused that at very first opportunity he or she would lodge complaint against the culprit.
65. That the testimony of prosecutrix is also not inspiring confidence when she has deposed that she told her husband PW4 Baljeet Singh that "tumey batati hu toh marti hoonm aur waise bhi marr rahi hoon". It shows that she was not willing to lodge complaint against accused and it is only because of her husband's insistence she has lodged the complaint. On the other hand, the accused had also come out with clean hands and admitted that he was in relationship with prosecutrix and he had not tried to deny the relationship so the testimony of DW1 Anil Kumar Talwar who is a relative of prosecutrix and accused become more relevant and material as such there cannot be any fault attributed to the accused for the relationship he had with the prosecutrix.
66. In cross examination by ld. defence counsel, prosecutrix deposed that she had got registered the present FIR on 18.10.2015. Prior to that she never made any 100 number call or any police complaint. She further admitted that she had registered the present FIR only due to her emotions and 'pareshan hokar'. She further admitted that she wanted to teach the accused a lesson and only for that reason she got registered the present FIR.
67. She was mature enough to fully understand as to what was happening between the two. There is nothing in her evidence to demonstrate that she was incapable Case No.28736/2016 State Vs. Akshay Talwar 19/20 of understanding the nature and implications of the acts which she consented to. Her consent for physical relationship (if any) was an act of conscious reason.
68. Further, there is no explanation in delay of registration of FIR. Further, prosecutrix has refused for her internal medical examination.
69. From the close scrutiny of testimony of the prosecutrix, it is proved that prosecutrix was consenting with the accused. Accordingly, from the close scrutiny of evidence available on record, it is established that prosecution has been failed to prove its case beyond reasonable doubt. Accordingly, accused Akshay Talwar is acquitted from the charges u/s 328/376 (2)(n) IPC by giving him benefit of doubt.
70. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
71. Since prosecutrix has been consenting with accused and she has misused the due process of law, hence, no compensation is awarded to her.
72. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 20.08.2018.
(RAMESH KUMARII)
Digitally signed ASJ/SFTC2(CENTRAL),
by RAMESH
RAMESH KUMAR TIS HAZARI COURTS, DELHI.
KUMAR Date:
2018.08.21
16:08:37 +0000
Case No.28736/2016
State Vs. Akshay Talwar 20/20