Delhi District Court
Directions Of Hon'Ble Supreme Court In ... vs . Puttraj 2004 (1) on 30 January, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 42/2018
State V Khempal s/o Govardhan, r/o Jhuggi Jat
Foji Dharamshala Yamuna Bazar,
Kashmere Gate, Delhi.
FIR No. 493/2017
U/s 354/354A/354B/354C/354D/376/457/
506/509/201 IPC
Police Station Kashmere Gate
Assigned to Sessions 12.01.2018
Charges framed on 19.01.2018
Arguments heard on 19.01.2019
Judgment pronounced on 30.01.2019
Decision Acquittal
JUDGMENT:
1. That, the case of the prosecution is that, the Station House Officer of Police Station Kashmere had filed a chargesheet before the court of Ld. Metropolitan Magistrate vide FIR No.493/2017 dated 09.12.2017 u/s. 354/354(A)/354B/ 354(C)/354(D)/376/457/506/509/201 IPC for the prosecution of accused Khempal and 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 Hon'ble 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 and identity of prosecutrix is not being disclosed in the judgment.
Case No.42/2018 State Vs. Khempal 12/12BRIEF FACTS OF THE CASE:
2. That, in this case criminal law, was set into motion on the basis of statement of prosecutrix recorded on 09.12.2017 Ex.PW2/A by SI Satender Singh and FIR No. 493/2017 u/s. 354/354A/354C/354D/457 IPC was registered. In her statement, prosecutrix has alleged that on 09.12.2017 at 12:20 a.m. at her Jhuggi in Yamuna Bazar Kashmere Gate, Delhi, when she was sleeping with her family, her neighbour namely Khempal entered in her house and lifted her suit and then pressed her breast, she woke up and raised alarm. Her Husband got up and accused was apprehended and as such her modesty was outraged. Police was called on 100 number. On the basis of statement of prosecutrix, FIR was registered and SI Satender Singh visited the spot of incident and prepared site plan. Thereafter, prosecutrix was medically examined in Aruna Asaf Ali Hospital where she has refused for her internal medical examination and thereafter her statement u/s 164 Cr.P.C. was recorded by the Ld. Lady Magistrate and in that statement she has alleged that she has been raped by the accused and therefore, the chargesheet was filed u/s. 354/354(A)/354B/ 354(C)/354(D)/376/457/506/509/201 IPC.
3. That, on 09.12.2017, on the identification of prosecutrix, accused was arrested. His disclosure statement was recorded. Investigation was carried out and chargesheet was filed against the accused.
CHARGE:
4. That, on the basis of material available on record as well as the evidence, collected by the I.O. during the course of investigation, Ld. predecessor of this court vide order dated 19.01.2018 framed charges against the accused Khempal u/s 457/376/506/354/354D IPC to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
5. That, in order to prove its case, prosecution has examined 10 witnesses including Case No.42/2018 State Vs. Khempal 12/12 prosecutrix 'R' as PW1, PW2 ASI Tirsh Pal, PW3 Dr. Surender Kumar, PW4 Dr. Neha, PW5 W/Ct. Nitumani Das, PW6 SI Ummed Singh, PW7 ASI Krishan Pal, PW8 W/HC Urmila, PW9 W/Ct. Asha and PW10 SI Satinder Singh.
PWs Name of the Nature of the Documents proved Witness witness PW1 Prosecutrix 'R' Complainant/ Prosecutrix being victim of the victim alleged sexual assault has testified about the incident and has testified about her complaint given to the police which is MarkA/Ex.PW2/A as well as made her her statement u/s 164 CrPC before Ld MM Ex.PW1/D. She has proved arrest memo of accused vide Ex. PW1/A and his personal search memo Ex.PW1/B and his disclosure statement vide Ex.PW1/C. PW2 ASI Tirsh Pal Police Witness He has proved recording of computerized copy of FIR vide Ex.PW2/B. PW3 Dr. Surender Medical witness He has conducted medical Kumar examination of accused qua potency test vide MLC Ex.PW3/A. PW4 Dr. Neha Medical witness She has proved MLC qua the medical examination of prosecutrix Ex.PW4/A. She has proved UPT investigation form vide Ex.PW4/B and has also proved that the prosecutrix was having pregnancy at the time of preparing her MLC.
PW5 W/Ct. Nitumani Police witness This witness has proved arrest memo Das of accused vide Ex.PW1/A, personal search memo of accused vide Ex.PW1/B and his disclosure statement vide Ex.PW1/C. Case No.42/2018 State Vs. Khempal 12/12 PW6 SI Ummed Singh Police witness He has proved PCR form vide Ex.PW6/A. He had issued certificate under section 65 B of the Evidence Act regarding correct contents of computerized PCR form vide Ex.PW6/B. PW7 ASI Krishan Pal Police witness He deposed that on 08/09.12.2017, he was on duty on PCR van SUGAR 29 which was stationed near Loha Pul, Kashmere Gate, Hanuman Mandir and at about 12:30 a.m. in the night he received a call from control room regarding a quarrel in the Jhuggies of Hanuman Mandir.
He alongwith his driver, Ct. Manish reached at the spot where he met Dharampal who had apprehended one person. His name was found as Khempal. He informed him that he would tell about the incident in detail to the I.O. He had only informed that accused had entered in his Jhuggi and had caused damage to the Jhuggi.
PW8 W/HC Urmila Police witness This witness has produced prosecutrix before the doctor for her medical examination where prosecutrix had refused to undergo her internal medical examination.
PW9 W/Ct. Asha Police witness She has taken the prosecutrix to Aruna Asaf Ali Hospital where prosecutrix was produced before doctor for her medical examination and her UPT Test was conducted.
She deposed that the doctor had found the result of pregnancy positive.
PW10 SI Satinder Singh Police witness He has investigated the matter and has testified about the steps taken by him during investigation. He Case No.42/2018 State Vs. Khempal 12/12 deposed that after completing investigation charge sheet was filed against the accused in the court.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
6. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence has been put to the accused and his statement u/s 313 Cr.P.C. was recorded. Accused claimed that there was a quarrel going on in the area in night. He was not involved and there was old enmity of his family with the family of prosecutrix. Prosecutrix and her husband are in connivance with local police as they sell pasting substance used as drug to intoxicate themselves and there was a dispute between him and husband of prosecutrix. In the said night gambling was going on in the area and husband of prosecutrix has lost several thousands of rupees to his friends who were gambling with him in order to take money, a false case was prepared against him. He is innocent and falsely implicated in this case. Accused has not preferred to lead any defence evidence.
ARGUMENTS:
7. Ms. Anjali Chauhan, Ld. Amicus Curiae for accused argued and submitted that prosecutrix has deposed in her testimony before the court that accused had not established physical relation with her at any point of time and she has not supported the case of prosecution.
8. Ld. Amicus Curiae for accused further submitted that initially, prosecutrix has refused for her internal medical examination and there is no other evidence against the accused as none of the witness has deposed anything against the accused and the prosecution has been failed to establish and to prove its case against the accused beyond reasonable doubt and make a submission that on these grounds, accused may kindly be acquitted.
Case No.42/2018 State Vs. Khempal 12/129. On the other hand, Ld. Addl. PP for the State submitted that as per testimony of PW1 Prosecutrix has supported the case regarding that accused entered in her Jhuggi in the night, assaulted her and caused her beatings. The testimony of the prosecutrix remains unchallenged as she has not been cross examined on behalf of the accused despite sufficient opportunity being granted and make a submission that accused is liable to be convicted.
PERUSAL OF RECORD:
10. Arguments heard. Record perused. On perusal of record, it is revealed that on on the statement of prosecutrix Ex.PW2/A, present FIR was registered against the accused. Initially u/s 354/354A/354B/354C/354D/457 of IPC but in the statement u/s 164 Cr.P.C. made by the prosecutrix before the Ld. MM section 376 of IPC was added and chargesheet was filed against the accused u/s. 354/354(A)/354B/ 354(C)/354(D)/376/457/506/509/201 IPC.
11. Before reaching at any conclusion, let the relevant sections i.e. 457/376/506/354/354D IPC be reproduced, which is as under: Section 457 IPC: Lurking housetrespass or house breaking by nigh in order to commit offence punishable with imprisonment. Whoever commits lurking housetrespass by night, or house breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or Case No.42/2018 State Vs. Khempal 12/12
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be 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.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is Case No.42/2018 State Vs. Khempal 12/12 established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 354 IPC: Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, (shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.) Section 354D IPC: (1) Any man who (I) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that (I) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.Case No.42/2018 State Vs. Khempal 12/12
FINDINGS OF THIS COURT:
12. Having heard the arguments advanced by Ms. Anjali Chauhan, Ld. Amicus Curiae for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the witnesses, this court is of the considered view that initially the case FIR u/s 354/354(A)/354(C)/354(D)/457 of IPC was registered against the accused on the statement of the prosecutrix made by her on 9.12.2017 and her statement u/s 164 of Cr.P.C. was recorded on 12.12.2017 and chargesheet was filed against the accused u/s. 354/354(A)/354B/ 354(C)/354(D)/376/457/506/ 509/201 IPC.
13. That, the court is very much conscious of the fact that evidence of the prosecutrix is required to be appreciated in a realistic human assessment. It is an established law that evidence of the prosecutrix did not require any corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. The law has been settled down down by Hon'ble Apex Court of India in various judgments that evidence of the prosecutrix can be sole basis of conviction, provided testimony of the prosecutrix is worth of credence, believable and trustworthy.
14. That, the 100 number call was made on dated 09.12.2017 at 12:25 night and the same was registered vide DD No.5A regarding quarrel at Jhuggi No.2080, near Jaat Fauji Dharamshala, Yamuna Vihar, Delhi and the complainant and her husband produced one person namely Khempal and thereafter, the complainant made statement before the police where she has alleged that the accused had entered into her house and molested her and thereafter, the FIR u/s. 354/354A/354B/354C/354D/457 IPC was registered. The medical examination of the prosecutrix was carried out and her statement u/s 164 Cr.P.C. was recorded by Ld. Metropolitan Magistrate where she alleged that when she was sleeping with her husband and children in her jhuggi and the accused entered in her jhuggi and she was raped by the accused in the intervening night of 8/9.12.2017. The statement of the prosecutrix u/s 161 Cr.P.C. was recorded Case No.42/2018 State Vs. Khempal 12/12 by the I.O. on 20.12.2017 where she has made her statement that she is pregnant since 02.12.2017 and the accused has no role for that. And therefore, there is material improvement in the statement of the prosecutrix made by her to the police, made by her u/s 164 Cr.P.C. before the Ld. MM as well as in her statement u/s 161 Cr.P.C. made before the I.O. on 20.12.2017.
15. It is worth mentioning that when the prosecutrix appeared in the witness box to depose in this case and she has deposed that the date is not remember to her, however, 23 months back when she was sleeping in the night with her husband, three children, Nanad and her son and her motherinlaw and alleged that accused entered into her house and started beating her.
16. She has also deposed that "Accused had not done anything else with me. Accused had not established physical relation with me at any point of time". Upon making this statement by the prosecutrix in the court, the Ld. Predecessor has put a court question to the prosecutrix.
Court Question : When accused did not establish physical relation with you. Why you got registered present case against him. What you have to say?
Ans. Since accused had been extended threat to me to kill my husband, children and mother in law, therefore, I had got registered the present case.
17. This witness was turned hostile and was cross examined by ld. Addl. PP of this court and in the cross examination she has deposed that I had stated in my aforesaid statement before the Magistrate due to fear accused had raped me. "Vol. Accused had not raped me." I was not tutored by the police or any other person to give aforesaid statement to the Magistrate.
Case No.42/2018 State Vs. Khempal 12/1218. The testimony of the prosecutrix is not of trustworthy and is not of a sterling quality inasmuch as she has specifically stated that accused had not raped her. Moreover, PW10 SI Satender Singh who had received the PCR call has also deposed that the call was made by someone in respect of "quarrel" and when the PCR officials reached at the spot then the accused produced by the prosecutrix and her husband to the police. That, initially, the call was made by some other person and the call was of quarrel and there was no call made either by the prosecutrix or by her husband of sexual harassment alleged to have been committed by the accused. Had it been the offence alleged to have been committed rape by the accused with the prosecutrix then the prosecutrix or her husband or her other family member would have made a complaint of rape. Therefore, the prosecution has not been able to prove its case against the accused in respect of making physical relation forcibly alleged to have been made by the accused with the prosecutrix.
19. PW9 W/Ct. Asha has also admitted in her cross examination that when she met the prosecutrix for taking her to produce her before the Ld. MM for recording her statement u/s 164 Cr.P.C. and the prosecutrix was cool and calm and in normal condition and there was no pressure upon the prosecutrix either of the side of police or by the side of the accused.
20. PW5 W/Ct. Nitumani Das has also admitted in her cross examination that all the documents i.e. arrest memo Ex.PW1/A, personal search memo Ex.PW1/B and disclosure statement of the accused Ex.PW1/C had been prepared by the I.O. while sitting in the police station. It has also been admitted by this witness that site plan Ex.PW5/DA was also prepared by the I.O. while sitting in police station and she has also admitted that the disclosure statement of the accused Ex.PW1/C was blank when she put her signature at point B. Case No.42/2018 State Vs. Khempal 12/12
21. PW5 has also admitted that she had not seen any injury mark upon the person of prosecutrix nor seen her clothes torn. Therefore, in these circumstances, this court is also of the considered view that I.O. did not reach at the spot of incident as alleged by the prosecutrix and all the investigation was carried out in the police station and there is no evidence in respect of extending threat by the accused upon the prosecutrix nor any independent witness has been examined by the prosecution to prove that the accused entered in the jhuggi of the prosecutrix in the night of dated 8/9.12.2017 and the prosecution has not been able to prove its case against the accused in respect of any of the charges u/s 457/376/506/354/354D IPC and this court has no option except to acquit the accused from charges u/s 457/376/506/354/354D IPC.
22. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.10,000/ with one surety in the like amount.
23. As prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
24. Every page of this judgment is signed by me.
25. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 30.01.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Case No.42/2018 State Vs. Khempal 12/12