Delhi District Court
State vs Ashish Mishra -:: Page 1 Of 13 ::- on 5 August, 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 : 04/2015.
Unique Case ID Number : 02401R0005132015.
State
versus
Mr.Ashish Mishra,
Son of Mr. Lakhmana Dutt,
Resident of CM-212, Gali No.2, Bihari Colony,
Gulshan Chowk, Baljeet Nagar, Delhi.
Permanent Address:- 44, Rampuram Society Plot Kanpur Nagar,
Sadar, District Kanpur Nagar, U.P.
First Information Report Number : 274/14
Police Station: Ranjeet Nagar
Under sections 376 and 506 of the Indian Penal Code.
Date of filing of the charge sheet before : 03.01.2015
the Court of the Metropolitan Magistrate
Date of receipt of file after committal :13.01.2015.
Arguments concluded on : 05.08.2015.
Date of judgment : 05.08.2015.
Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the
State.
Accused Ashish Mishra on bail.
Prosecutrix is present.
IO ASI Kiran Sethi is present.
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Sessions Case Number : 04 of 2015
Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar
Under sections 376 and 506 the Indian Penal Code.
State versus Ashish Mishra -:: Page 1 of 13 ::-
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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. Mr. Ashish Mishra, the accused has been charge sheeted by Police Station Ranjit Nagar, Delhi for the offences under sections 376 and 506 of the Indian Penal Code (hereinafter referred to as the IPC). The allegations against accused Ashish Mishra are that on 29.10.2012 onwards at House near Satyam cinema, Patel Nagar, House number-73, ground floor, Swayam Sidha Colony, West Punjabi Bagh and at T-581/6, Top Floor, Baljeet Nagar, he committed rape upon the prosecutrix (name mentioned in the file and withheld to protect her identity), under the false promise to marry her whereas he was already married and also had a child; accused sent the prosecutrix to her home town at Rajasthan on 03.05.2014 and when she returned on 07.05.2014 and tried to contact the accused to honour his promise to marry her, the accused extended threats to the prosecutrix of dire consequences.
2.After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 03.01.2015 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 Courts, Delhi for 13.01.2015.
Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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3.After hearing arguments, vide order dated 27.03.2015, charge for offence under sections 376 and 506 of the IPC was framed against the accused Ashish Mishra to which accused pleaded not guilty and claimed trial.
4.Vide order dated 01.07.2015, accused and his counsel had admitted the evidence of Ms.Aditi Garg, learned Metropolitan Magistrate, who had recorded the statement of the prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.); evidence of H.C Sukhram Pal, duty officer who had recorded the FIR; Ms.P.Massey, Counsellor from NGO, Dr. Aparna Mathur, who had medically examined the prosecutrix, L/Ct. Sarika who had taken the prosecutrix for her medical examination; HC Jogender Singh who had gone to the house of the accused where the father of the accused had given the documents which were seized. Dr. Afrif Akhtar and Dr. N.Surmala Devi who had medically examined the accused; and the MHC(M) with whom the case property had been deposited in the malkhana. The accused had submitted that the documents prepared / signed by the abovementioned witnesses are not in dispute and the above said witnesses may not be examined by the prosecution as their evidence is admitted by the accused. The evidence of abovesaid witnesses may be read against the accused. The documents prepared by the abovesaid witnesses may be exhibited. The evidence of the abovesaid witnesses and the documents prepared by them and/or bearing their signatures may be read against the accused at the time of final disposal of the case. Statement of the counsel Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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for the accused to the same effect has been recorded separately. Considered.
5.In view of the submissions made as well as the statement of the counsel for the accused, the abovesaid witnesses i.e Ms.Aditi Garg learned Metropolitan Magistrate, who had recorded the statement of the prosecutrix under section 164 of the Cr.P.C.; evidence of H.C Sukhram Pal, duty officer who had recorded the FIR; Ms. P. Massey, counsellor from NGO, Dr. Aparna Mathur, who had medically examined the prosecutrix, L/Ct. Sarika who had taken the prosecutrix for her medical examination; HC Jogender Singh who had gone to the house of the accused where the father of the accused had given the documents which were seized. Dr. Afrif Akhtar and Dr. N.Surmala Devi who had medically examined the accused; and the MHC(M) with whom the case property had been deposited in the malkhana are ordered not to be examined as their evidence is admitted by the accused. The following exhibits are put on the documents prepared by the abovementioned witnesses:-
i.Statement under section 164 Cr.PC is exhibited as Ex.P-1 and it bears the signatures of Ms.Aditi Garg,Ld. MM at points A to G. the application of the IO for copy of the statement under section 164 Cr.PC is Ex.P-2 with signatures of Ms. Aditi Garg, Ld. MM at point A on the order allowing the application.
ii.Copy of FIR is exhibited as Ex. P-3 with signatures of HC Sukhram Pal at point A. Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015. FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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iii.Endorsement on rukka is exhibited as Ex.P-4 and signatures of H.C Sukhrampal at point A. iv.Certificate is Ex.P-5 with signatures of HC Sukhram Pal at point A. v.Counselling report of the prosecutrix by the NGO is Ex. P-6 and the signatures of Ms. Massey.
vi.The MLC of the prosecutrix is Ex.P-7 and has been signed by Dr. Aparana Mathur at points A and B. vii.The MLC of the accused is Ex. P-8 and it bears the signatures of Dr. Arif Akhtar at point A and of Dr. N.Surmala Devi at point B.
6.In order to prove its case, the prosecution has examined the prosecutrix as PW1.
7.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.
8.The prosecutrix, as PW1, has deposed that she was earlier married in the year 1998 with Mr. Dheeraj Kumar and was divorced after 2-3 years. Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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Then she got married in the year, 2008 with Mr. Gajender Kumar and the divorce proceedings are pending before Jaipur Court. She is staying separately since 2010. In the year, 2013, she had met accused Ashish Mishra at Jaipur through a friend Ms. Zarina. She was fully aware that accused Ashish Mishra was already married but he was unhappy in the marriage and living separately from his wife. Gradually, they developed friendship and they started meeting each other. She had physical relations with the accused with her free consent for two years. They both wanted to get married to each other but as they were already married, they could not marry and had to wait for their respective divorces. Both their families were agreeable for their marriage. They started living together in a rented accommodations near Satyam Cinema, Patel Nagar, Delhi, then in Punjabi Bagh and also Shadipur, Ranjit Nagar, Delhi. The accused left her for some unknown reasons and the marriage could not take place between them and she was very upset as the accused did not get married with her and then she lodged the report against accused. It was due to misunderstanding. Due to misunderstanding, she had gone to Police Station Ranjit Nagar and made a complaint against the accused. She had narrated the same facts to the police due to her misunderstanding with the accused. Her statement (Ex.PW1/A) was recorded by the police. She was taken to Lady Harding Medical College for her medical examination which was conducted vide MLC (Ex.PW1/B). She had refused her gynecological examination as she was menstruating at that time. She was produced before the Court of learned Metropolitan Magistrate for her statement under section 164 Cr.P.C. and her statement (Ex. PW1/C) was recorded by the learned Metropolitan Magistrate. She voluntarily stated Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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that she had made this statement due to misunderstanding. She had also shown the place of occurrence to the police and police prepared the site plan (Ex.PW1/D). She had also deposed before the Delhi Women Commission (Ex.P6). The accused has not committed any offence. The accused has not raped her on a false promise of marriage. She did not have any grievance against the accused since accused has not committed any offence. She has prayed that the accused may be acquitted as he is innocent.
9.As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
10.In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that she had made a statement before the police as mentioned in her complaint (Ex.PW1/A). She voluntarily stated that it was due to misunderstanding. She had signed the complaint without reading the contents of the same and even the complaint was not read over to her by the police before she made her signatures on the same. She has denied the suggestion that she had made the complaint before the police on her own and not due to misunderstanding. She has denied the suggestion that she had read the contents of the complaint before signing on the same and she is deposing falsely to this effect. She has denied the suggestion that accused had committed rape upon her on a false promise of marriage. She had stated before learned Metropolitan Magistrate as elaborated in Ex.PW1/C. She voluntarily stated that it was due to misunderstanding. She denied the suggestion that she had given statement before learned Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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Metropolitan Magistrate voluntarily and with her free consent and not due to misunderstanding. She has admitted that she had told the facts to the doctor at the time of her medical examination. She voluntarily stated that it was due to misunderstanding. She has denied the suggestion that she had given statement before doctor voluntarily and with her free consent and not due to misunderstanding. She has denied the suggestion that on 29.10.2012 onwards at House near Satyam cinema, Patel Nagar, H.No.73, ground floor, Swayam Sidha Colony, West Punjabi Bagh and at T-581/6, Top Floor, Baljeet Nagar, the accused had committed rape upon her under the false promise to marry with her. She has denied the suggestion that the accused extended threats to the prosecutrix with dire consequences on 03.05.2014 and 07.05.2014. She has admitted that she had come with the accused to Delhi. She has denied the suggestion that she had been brought by the accused on an assurance of getting job. She voluntarily stated that as she herself wanted to work in Delhi, she had come with the accused to Delhi. She has denied the suggestion that she is deposing falsely as I have settled the matter with the accused.
11.The prosecutrix has also been cross examined bt the accused. She has admitted that the accused has not committed any offence. She has admitted that the accused has not raped her on the false pretext of marriage. She has admitted that the accused had physical relations with her with her free consent. She has admitted that the accused is innocent. She has again prayed that the accused may be acquitted as he is innocent.
12.The prosecutrix, has not deposed an iota of evidence of her being raped Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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by the accused under the false promise to marry her or has threatened her with dire consequences. She has deposed that the accused has not committed any offence against her and nor deposed anything incriminating against the accused. She has deposed that the accused is innocent and has also prayed that he may be acquitted.
13.In the circumstances, as PW1, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused and has not deposed anything incriminating against him, 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 formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself, the most material witness, has not supported the prosecution case and is hostile.
14.The statement under section 313 of the Cr.P.C of the accused Mr.Ashish Mishra is dispensed with as there is nothing incriminating against him when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
15.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.
Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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16.In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, 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."
17.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
18.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
19.If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
20.Consequently, no inference can be drawn that accused Mr. Ashish Mishra has committed rape upon prosecutrix under the false promise to marry her or has threatened her with dire consequences.
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 is innocent and has 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 the accused Mr.Ashish Mishra is guilty of the charged offence under sections 376 and 506 of the IPC. There is no material on record to show that accused Mr. Ashish Mishra had committed rape upon the prosecutrix under the false promise to marry her or has threatened her with dire consequences.
23.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offence against accused Ashish Mishra that he Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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had raped the prosecutrix under the false promise to marry her or has threatened her with dire consequences. The evidence of the prosecutrix makes it highly improbable that such incidents ever took place. She has categorically deposed that she had physical relations with accused her free consent and the accused has not committed any offence and has not raped her.
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 the accused Mr. Ashish Mishra for the offence under sections 376 and 506 of the IPC.
25.Consequently, accused Mr.Ashish Mishra is hereby acquitted of the charge for the offences under sections 376 and 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 Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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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.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
30.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 05th day August, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 04 of 2015 Unique Case ID Number : 02401R0005132015.
FIR No. 274/2014 Police Station Ranjit Nagar Under sections 376 and 506 the Indian Penal Code.
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