Delhi District Court
"State Of Karnataka Vs. Puttraj 2004 (1) ... vs . on 7 September, 2018
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
SC No. 59/2015
Case No. 28078/2016
Assigned to Sessions. 19.11.2015
Arguments heard on 07.09.2018
Date of Judgment 07.09.2018
FIR No. 602/2015
State V Ajay Kumar Sharma s/o. Lt. Sh. Lakshmi
Chand, R/o. 2267, Ganesh Nagar, Tri Nagar,
Delhi.
Police Station Sadar Bazar
Under Section 365/376 IPC, 328/376D IPC, 506/376(2)(n) IPC
JUDGMENT :
1. In the present case Station House Officer of Police Station Sadar Bazar had
filed a challan vide FIR No.602/2015 dated 05.10.2015 u/s. 376/292/506/34
IPC for the prosecution of accused Ajay Kumar Sharma 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.28078/2016
State Vs. Ajay Kumar Sharma 1/31
BRIEF FACTS OF THE CASE:
2. In this case criminal law was set into motion on the basis of complaint dated 12.09.2015 of prosecutrix and FIR No. 602/15 u/s 376/292/506/34 IPC was registered. In her typed complaint prosecutrix has narrated the details of various incidents of sexual intercourse committed by accused with her. She has specifically named accused Ajay Sharma and stated that he with the help of his other associates had threatened her, blackmailed her and committed the offence of rape with her. The times of various alleged incidents are given by her are from 2004 onwards. She has also alleged that accused used to make video clippings of the sexual acts done with her and by the said video clips he used to blackmail her. No specific date of incident of rape was mentioned by her in her complaint dated 12.09.2015. However, during course of investigation I.O. on 05.10.2015 seized a pen drive from Sh. Anil Kumar, husband of the prosecutrix. I.O. also took the prosecutrix to Hindu Rao Hospital on 07.10.2015 where she was medically examined. She also undergone her internal medical examination. Her exhibits prepared by the doctor were also seized by the I.O. On 08.10.2015 prosecutrix was also produced by the I.O. before Ld. Magistrate, Ms. Rashmi Gupta, who recorded statement of the prosecutrix under section 164 Cr.P.C.
3. On 06.10.2015 accused Ajay Sharma was arrested in this case from his shop No. 3458, Sadar Bazar, Delhi. His disclosure statement was recorded. He was produced in Hindu Rao Hospital and was medically examined and his blood in gauge was preserved by the doctor and seized by the I.O. Thereafter, on 08.10.2015 accused was again produced in Hindu Rao Hospital and was medically examined regarding his potency. The doctor after examining him Case No.28078/2016 State Vs. Ajay Kumar Sharma 2/31 opined that there was nothing to suggest that patient is incapable of performing sexual intercourse under normal circumstances.
4. During further course of investigation on 20.10.2015 son of accused namely Chirag Sharma handed over mobile handset make Nokia having Airtel SIM No. 9810329890 to I.O. which he seized in the case and on 02.11.2015 I.O. also seized one mobile phone make Micromax from Surender Kumar Sharma. The exhibits of the case were sent to FSL, Rohini and after completing investigation charge sheet was filed against accused under section 376D/377/328/292/506/34 IPC with the request that supplementary charge sheet will be filed. Subsequently the I.O. of the case also filed a supplementary charge sheet after obtaining the FSL result of the exhibits of the case which was taken on record. It is also pertinent to mention that the prosecutrix has also filed a complaint dated 19.09.2015 in the court of Ld. CMM, Tis Hazari Court, Delhi under section 156(3) Cr.P.C. which was registered as C.C. No.105/01 which remained pending consideration before Ld. M.M., Ms. Ambika Singh who had called a report from PS Sadar Bazar in the matter for 06.10.2015 and on 06.10.2015 it was informed that an FIR was already registered in PS Sadar Bazar and so, the said complaint case was adjourned as sine die with the directions to the local police to file the charge sheet in the case. The record of said complaint case had also been annexed with the charge sheet of this case.
CHARGE:
5. On the basis of material available on record, Ld. Predecessor of this court vide order dated 21.11.2015 framed charges against accused Ajay Kumar Sharma for the offence punishable u/s 365/376 IPC, 328/376D IPC, 506/376(2)(n) IPC to which accused did not plead guilty and claimed trial.Case No.28078/2016
State Vs. Ajay Kumar Sharma 3/31
PROSECUTION WITNESSES:
6. In order to prove its case prosecution has examined 11 witnesses namely PW1 HC Parvesh Kumar, PW2 Dr. Shakti Sharma, PW3 Dr. Mamta, PW4 Dr. Praveen, PW5 Dr. Abhijeet, PW6 Prosecutrix 'M', PW7 W/Ct. Rinky, PW8 Dr. Varun Garg, PW9 Sh. Anil Kumar Yadav, PW10 Ct. Surender and PW11 Inspector Man Mohan Kumar.
7. PW1 HC Parvesh Kumar was the Duty Officer. He has proved recording of FIR vide Ex.PW1/A.
8. PW2 Dr. Shakti Sharma SR [Obs and Gynae] Hindu Rao Hospital, Delhi has proved the MLC of prosecutrix vide Ex.PW2/A.
9. PW3 Dr. Mamta, SR [Obs and Gynae] Hindu Rao Hospital, Delhi has conducted gynecological examination of the prosecutrix after obtaining her consent. She mentioned the details of her examination on the overleaf of MLC Ex. PW2/A at point A to A.
10. PW4 Dr. Praveen has proved MLC of accused vide MLC Ex. PW4/A. He had also taken blood sample of the accused in gauze, preserved, sealed and handed over to the police alongwith sample seal. Since accused was involved in sexual assault case, he referred him to Department of Surgery and Department of Forensic Medicine for further examination.
11. PW5 Dr. Abhijeet SR, Department of Surgery, Hindu Rao Hospital, Delhi has Case No.28078/2016 State Vs. Ajay Kumar Sharma 4/31 conducted potency test of accused vide MLC Ex.PW4/C and proved his findings in this regard are at point B to B bearing his signatures at point C on the overleaf of MLC Ex. PW4/C. He conducted his medical examination and found nothing to suggest that he was incapable to perform the sexual act under normal circumstances.
12. PW6 Prosecutrix 'M', is a material witness being victim and complainant. She deposed that accused came into her contact in the year 2004 as he used to come at the shop to buy goods where she was working as a Sales Girl. At that time she was disturbed as her husband had to leave his job. They started conversing each other and developed close relation. Accused told her that he had a good rapport with the police officials and he could solve her problem and would also get the salary of her husband disbursed and get him reinstated.
13. She further deposed that in the month of October, 2004 in the evening time accused took her to a house in the area of Ashok Vihar, Delhi and made her to sit there and asked her to wait for the persons known to him who would help her in getting her husband reinstated. After about half an hour no other person came there but accused came there in drunken position and committed sexual intercourse with her without her consent and against her will and he left her alone there and went somewhere. She somehow managed to reach her home by a TSR.
14. She further deposed that after 24 days or a week accused met her on the way while she was returning from her shop, he apologized her for his said act saying that it was accidentally happened and he loves her. He further told her that he will not do any such thing with her anymore. She stated that she was disturbed Case No.28078/2016 State Vs. Ajay Kumar Sharma 5/31 emotionally, financially and socially and she did not make any complaint to anyone. She realized that he could help her and also trusted him. Again she accompanied him to same house after about a week where he served her juice laced with something and she consumed the juice and lost her control and thereafter, accused committed rape with her. Two more persons also came there. They had also committed rape and unnatural sex with her.
15. She deposed that during the course of investigation, IO prepared a portrait on her description and on seeing the same IO had disclosed his name as Prabhat.
IO had also shown her his photograph. There was clue about second person. She can identify him if he be produced before her. Accused Ajay had also made video of rape committed by two other persons. She does not know who had made video while committing rape with her by accused Ajay. After making the aforesaid video accused started blackmailing her and used to call her at different places including in some place in Rohini. Accused also used to take her to King Palace Hotel in Jhandewalan, Delhi, at his rented office at Dori Walan, Karol Bagh, and his shop at Shop No.3458, Sadar Bazar where he used to commit rape and unnatural sex with her and also made videography by his white color Samsung mobile phone. He had also shown the aforesaid video to her. When she used to resist to accompany the accused to aforesaid places by saying that her children has now grown up and she does not want to continue the relation, he used to threat her by saying that he had already the purchased the Judge to get qualified the claim of his ill son and he had paid Rs.20 lac to that judge and also said that he can purchase the judge of this court also. He also threatened that "you cannot do anything against me".
16. On Court question:Did you make any complaint on the aforesaid facts? She Case No.28078/2016 State Vs. Ajay Kumar Sharma 6/31 replied that she did not make any complaint in this regard.
17. She further deposed that accused had also given her a pen drive 15 days prior to filing of present complaint by her. The said pen drive contained video wherein he was committing rape forcibly with her. Police had been continuously harassing her since the day she filed the present. Her husband had handed over aforesaid pen drive to Inspt. Manmohan Singh.
18. She further deposed that on the day when she made complaint she was made to sit in police station for 4 hours and was forced to withdraw the complaint otherwise her clothes would be removed in the court by asking obscene questions. Her medical examination was got conducted at Bara Hindu Rao Hospital.
19. She has proved her complaint vide Ex.PW6/A. Accused had made phone calls to her after registration of the FIR upto 22.09.2015. He used to threat her by saying either to meet him personally or to send her daughter.
20. She deposed that she had also appended her signature at point B on the MLC vide Ex.PW2/A. She had also given her statement u/s 164 Cr.PC to Ld. Magistrate, THC, Delhi and proved the same vide Ex.PW6/D.
21. She deposed that the original complaint under section 376/506/34 IPC along with its annexures is Ex.PW6/B bearing her signature at points A on each page (running into 45 pages). She further deposed that the original complaint under section 292/406/499/500/506/120B IPC along with its annexures is Ex.PW6/C bearing her signature at points A on each page running into 48 pages.
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22. On being cross examined by Sh. Mukesh Kalia, Ld. counsel for accused, she deposed that her husband came to know for her first relation with the accused after about 1011 years. She had received pen drive 15 days before registration of the present case. Her husband had come to know about her relations with accused 34 days prior to my filing of the complaint dated 12.09.2015. Her husband had gone through the pen drive first before her. She deposed that she had mentioned the fact in her complaint already Ex.PW6/A that accused had given her the pen drive. She was confronted with complaint Ex.PW6/A wherein this fact is not mentioned.
23. On Question: I put it to you that in your examination in chief dated 19.08.2016 you had deposed that you were working as a salesgirl in 2004 at the aforesaid shop, now today you have specifically denied that you did not work as salesgirl. Which of the fact is correct? This witness replied that as per her designation she was designated as a clerk. Her statement was confronted with the statement Ex.PW6/D that in the year 2004 accused used to come at the shop to buy goods where she was working as salesgirl.
24. On Question: I put it to you that did you ever inform the IO that in the year 2004 you had gone in a Santro car no. 4903 of golden colour. What you have to say? This witness replied that she had stated this fact to the IO. It was car no. 3904.
25. Her statements Ex.PW6/A and Ex.PW6/D were confronted on various facts. She had denied to the suggestion that she had made several calls using different mobile phone numbers on the phone of accused in order to extort money from Case No.28078/2016 State Vs. Ajay Kumar Sharma 8/31 him. She denied to the suggestion that she has deposed falsely.
26. PW7 W/Ct. Rinky has got her medical examination conducted vide MLC Ex.PW2/A. She deposed that after examining of the prosecutrix doctor had prepared sexual assault kit, preserved, sealed and handed over the same to her along with sample seal which she handed over to the IO. She deposed that exhibits were not tampered with in any manner till they remained in her custody.
27. PW8 Dr. Varun Garg, SR, Department of Forensic Medicine, Hindu Rao Hospital, Delhi has proved MLC Ex.PW8/A qua the potency test of accused Ajay Sharma conducted by Dr. Ashish Tyagi on 08.10.2015.
28. PW9 Sh. Anil Kumar Yadav is husband of prosecutrix. He deposed that since 2004 he had been dealing in scrap articles. He has studied upto 8th class and he used to earn about Rs. One lac per month by dealing in scrap articles.
29. He deposed that in September, 2015 two days prior to registration of the present case his wife/prosecutrix told him that accused Ajay Kumar Sharma who is present in court today (correctly identified) used to follow her in the year 2005 while she was working in Naulakha Shop, Khari Baoli, Delhi and that he had committed rape with her while taking her to Ashok Vihar, Delhi. He was also informed by his wife/prosecutrix that accused had taken a house in Dori Walan, Karol Bagh, Delhi where she was also raped and she was also threatened. After coming to know about the incident firstly she searched about the accused. He was the resident of Tri Nagar, Delhi and was a dealer of scrap articles. He did not approach police station as he was suggested by one known Case No.28078/2016 State Vs. Ajay Kumar Sharma 9/31 person of accused, namely Vinod Kumar that police did not take any action against accused and she must approach the court for action against the accused.
30. He deposed that an FIR was registered through court on application under section 156 (3) Cr.P.C. Police did not investigate the matter. Police did not record his statement in this case. He had visited police station ten times. Whenever he approached the police officials Vinod Kumar told him that he can not do anything against accused. He might have visited PS Sadar Bazar about 500 times.
31. On Court question: Did you approach senior police officials? This witness replied that he had visited office of Commissioner of Police, Delhi but he does not remember its date.
32. Court question: Had you sent any complaint to senior police officials in this regard? He replied that he did not make any written complaint. He had made complaint orally.
33. This witness was cross examined by Sh. M. Zafar Khan, Ld. Addl. PP for State, he admitted that the present case was registered on 05.10.2015. He admitted that during the investigation Insp. Manmohan had taken from him one pen drive (8 GB) which was seized by him vide seizure memo Ex.PW9/A. He admitted that the said pen drive was containing obscene video clips of prosecutrix and accused indulging in sexual activity. He admitted that his wife had shown him these clips when she had told him about the incident of rape committed by accused with her. He has correctly identified the pen drive vide Ex.P1 which he handed over to Insp. Manmohan during investigation.
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34. On being cross examined by Ms. Shubhi Gupta, proxy for Sh. Mukesh Kalia, Ld. counsel for accused, he deposed that he filed ITR from the year 20032004. His wife/prosecutrix had told him about the accused on 09.09.2015. He deposed that prosecutrix had been working with Naulakha Shop prior to marriage with him but he cannot tell its date, month and year. Prosecutrix never returned in late night hours. He had been living in a joint family consisting of more 50 persons in the year 2004.
35. On Question: I put it to you that if the prosecutrix had told you as to how many times accused had committed rape with her. What you have to say? This witness replied that he cannot tell its exact numbers. Prosecutrix had told him that accused had established physical relationship with so many times. He deposed that prosecutrix had told him that accused had raped her at a place in Doriwalan and in another place in Ashok Vihar. Prosecutrix had not told him any date, month and year of the rape committed by the accused on the above said places. He deposed that after hearing from his wife/prosecutrix about the incident of rape for the first time he came under shock and was hospitalized in Bali Nursing Home, Karol Bagh, Delhi. Prosecutrix had provided him pen drive either on 12.09.2015 or 13.09.2015. He and prosecutrix both had seen the contents of the pen drive alone. Prosecutrix had told him that pen drive was containing the contents of rape committed by accused with her. He deposed that prior to 2004 he had been working in Russian Airlines. He used to earn about Rs. 1 lac Rs.1.5 lacs per month.
36. On Question:I put it to you whether in the above mentioned statement you had Case No.28078/2016 State Vs. Ajay Kumar Sharma 11/31 stated to police that in September, 2015 your wife told you that Ajay Sharma used to follow her in the year 2005 while she was working in Naulakha Shop. What you have to say? This witness replied that police had not recorded his statement. He deposed that he had stated to the police that his wife/prosecutrix had shown him the clips when she had told him about the incident of rape committed by accused with her but the police did not record this in his statement. This witness had denied to the suggestion that his wife never told him that accused had committed rape with her.
37. PW10 Ct. Surender had collected three exhibits of this case from Malkhana along with sample seal vide RC No.91/21/15 and deposited the same with office of FSL, Rohini vide acknowledgement. He proved the copy of RC vide Ex.PW10/A. He has proved copy of acknowledgement vide Ex.PW10/B. He deposed that till the exhibits remained in his custody same were not tampered with in any manner.
38. PW11 Inspector Man Mohan Kumar was the Investigating Officer. He has deposed on the lines of investigation. He has proved the complaint of prosecutrix vide Ex.PW6/A. He had made his endorsement on the complaint Vide Ex.PW11/A. He deposed that prosecutrix pointed out the shopcum office of accused bearing no. 3458, Gali Lallu Misr in the area of Sadar Bazar. He prepared site plan Ex.PW11/B bearing his signature at point A.
39. He deposed that Anil, husband of prosecutrix had given him a pen drive which contained the scene of sexual activity of prosecutrix and accused which he seized vide seizure memo already Ex.PW9/A. Case No.28078/2016 State Vs. Ajay Kumar Sharma 12/31
40. He deposed that on 06.10.2015 he along with Ct. Dilip reached at the shop of accused Ajay Kumar Sharma. He was interrogated and he was arrested in the case vide arrest memo Ex.PW11/C His personal search was also conducted vide personal search memo Ex.PW11/D. He had interrogated the accused and during his interrogation accused had made his disclosure statement Ex.PW11/E bearing his signature at point A and of accused at point B. Accused was put up in police lock up after his medical examination vide MLC already Ex.PW4/A. Opinion regarding potency test was also obtained on the back of the MLC on the same day. Doctor who had conducted potency test of the accused had also collected blood sample of the accused and sealed with the seal of HRH and handed over the same to Ct. Dilip along with sample seal which he handed over to him which he seized vide seizure memo Ex.PW11/F.
41. He further deposed that on 07.10.2015 on his instructions prosecutrix was sent in the company of W/Ct. Rinki for her medical examination to hospital where prosecutrix was medically examined vide MLC already Ex.PW2/A. Doctor who had conducted medical examination of the prosecutrix had handed over the exhibits pertaining to the prosecutrix to W/Ct. Rinki who had handed over the same to me along with sample seal in sealed condition which he seized vide seizure memo Ex.PW11/G. On 08.10.2015 on his directions Insp. Kamlesh had produced prosecutrix in the court of Ld. Magistrate where statement of the prosecutrix was recorded under section 164 Cr.P.C.
42. He deposed that accused got medically examined in Hindu Rao Hospital regarding his potency test vide MLC already Ex.PW8/A.
43. He further deposed that on 16.10.2015 Chirag, son of accused had produced Case No.28078/2016 State Vs. Ajay Kumar Sharma 13/31 mobile phone of accused make Sony Ericsson, again said, it was Nokia make and it was seized on the apprehension that it might have same obscene contents of pen drive. It was sealed in a pullanda and seized vide seizure memo Ex.PW11/H. He deposed that during course of investigation the exhibits of the case were sent to FSL, Rohini for examination.
44. He deposed that on 02.11.2015 he had also seized mobile phone of Surender Sharma make Micromax Company vide seizure memo Ex.PW11/I. He had had filed three FSL reports by way of supplementary charge sheet. These reports are Ex.PW11/J, Ex.PW11/K and Ex.PW11/L. He correctly identified the mobile phones vide Ex. Ex.P1, Ex.P2, Ex.P3 and Ex.P4.
45. On being cross examined by Sh. Shivender Kumar Sharma, ld. counsel for accused, he deposed that he had examined Surender Sharma but did not record his statement under section 161 Cr.P.C. He only recorded said facts in his case diary. During investigation only allegation against Surender Sharma came forward in the shape of disclosure statement made by accused Ajay Kumar Sharma and therefore, he was granted anticipatory bail by the court. He admitted that on the disclosure statement already Ex.PW11/E he also did not cite any public person. He admitted that on the seizure memos of mobile phones already Ex.PW11/I and Ex.PW11/H no public witness was cited as witness. However, at the time of seizure of pen drive Anil Yadav was cited as witness. He admitted that no witness is cited on the seizure memos already Ex.PW11/F and Ex.PW11/G. He deposed that no incriminating articles were recovered at the instance of accused. Shopcumoffice of accused was situated in densely populated area and it was having two sides entry. This witness had denied to the suggestion that he has withheld material facts which were not Case No.28078/2016 State Vs. Ajay Kumar Sharma 14/31 favouring the case of prosecution or that he has not conducted proper/impartial investigation that is why he has not made any witness on any of the seizure memos or on the site plan or that he forcefully obtained signatures of the accused on blank papers or that same have been used as his disclosure statement or that no public witnesses have been asked to join the investigation in the present case.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
46. 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 he is innocent. He has been falsely implicated in this case. The husband of the prosecutrix forged/fabricated alleged pen drive against him to implicate him in the case and to extort money from him. Prosecutrix used to take money from him on the pretext that she is a divorcee as well as another sympathetic grounds and she does not have enough means to sustain herself and her children. Prosecutrix had also filed civil case of property against him in Rohini Courts which was dismissed with cost upon her by the concerned ld. Court. Accused has not preferred to lead defence evidence.
ARGUMENTS:
47. Ld. Addl. PP for the State submitted that the facts and circumstances of the case are very peculiar and it is a classic case where accused has first established friendship with the prosecutrix on pretext of helping her in providing her husband a job and to solve her problem of salary and then by inducing her to accompany him to Ashok Vihar in October, 2004, committed sexual intercourse with her without her consent. After 24 days or a week when accused met her he apologized to her for his act and in this way has been Case No.28078/2016 State Vs. Ajay Kumar Sharma 15/31 causing prosecutrix to believe that he was her wellwisher and, in this way, prosecutrix was prevented from lodging the complaint against him.
48. Ld. Addl. PP for State further submitted that as per testimony of PW6 prosecutrix it is clear that accused had prepared her video clips of the obscene act of doing sex with her and by showing the said video clips to the prosecutrix he used to blackmail her and then used to establish physical sexual relationship with her and in this way the accused had exploited the prosecutrix for a long time and prosecutrix in order to save her honour did not disclose the incident to anyone and as such delay is well explained by the prosecutrix.
49. Ld. Addl. PP for State has also submitted that as per the FSL report s Ex.PW11/K and L, it has been proved that the contents of the pen drive Ex.P1 containing video file are having no alteration on the basis of frame by frame examination. AS such accused had been found to be in the act of doing sex with the prosecutrix and the version of the prosecutrix is corroborated by the scientific evidence of the pen Ex.P1.
50. Ld. Addl. PP for State has also submitted that the prosecutrix has also narrated in detail during her testimony recorded in the court that she was disturbed emotionally, financially and socially. She has also explained that Ajay had made video of rape committed by two of her other associates and after making the aforesaid video accused started blackmailing her and used to call her at different places like Rohini and accused had also taken her to a hotel named King Palace in Jhandewalan. He also took her at his rented office at Doriwalan, Karol Bagh and also at his shop no. 3458, Sadar Bazar, Delhi where he used to commit rape and unnatural sex with her. She has also explained that accused Case No.28078/2016 State Vs. Ajay Kumar Sharma 16/31 had shown her obscene video clips and whenever she used to resist for the company of accused to these places, he used to threat that he has already purchased the judge of the court and she cannot do anything and therefore, she did not make any complaint against him. As such in these peculiar circumstances, the explanation of the prosecutrix is well reasoned and inspiring confidence.
51. Ld. Addl. PP for State has also submitted that it is well settled law that conviction of an accused can also be based on the sole testimony of prosecutrix and in the present case the testimony of the prosecutrix clubbed with the testimony of her husband and scientific evidence i.e. pen drive Ex.P1 which contains the obscene clips of sexual relationship between accused and prosecutrix is sufficient enough to believe the version of the prosecutrix and accused is liable to be convicted.
52. On the hand counsel for the accused had made his submissions and has submitted that accused has been falsely implicated in the case by the prosecutrix in order to extort money from the accused and there is no valid explanation given by the prosecutrix as to why the prosecutrix has not lodged the complaint against the accused immediately after the first incident of rape in the year 2004 and why she had accompanied accused at different different places and did not raise any hue and cry, nor lodged any complaint with the police, nor ever called any authority like Women Helpline or PCR of Delhi Police etc.
53. Ld. counsel for accused has taken me through the entire evidence of the Case No.28078/2016 State Vs. Ajay Kumar Sharma 17/31 prosecutrix PW6 and has highlighted the various improvements made by the prosecutrix in her statement given to the police, before the Magistrate and recorded in the court. He has highlighted that there is no specific date of alleged rape mentioned by the prosecutrix in her complaint. The said date is also not mentioned by the prosecutrix in her statement recorded by Ld. Magistrate under section 164 Cr.P.C. As such the allegation made by the prosecutrix are vague and general in nature which cannot be considered true. Ld. counsel for accused has also taken me through the complaint of the prosecutrix, Ex.PW6/A which is a typed complaint running into 12 pages and in the prosecutrix has not mentioned any date, time of the alleged incident of rape committed by the accused with her. In the last para it has been mentioned that "the above facts and the circumstances disclose the commission of cognizable offence under section 34 r/w section 376/506 IPC as deliberately committed by the accused persons". This complaint is signed by the prosecutrix and is the basis of FIR whereas no specific date is mentioned in it regarding the commission of rape.
54. Ld. counsel for accused has also submitted that even the prosecutrix in the case when it was registered was well represented by a counsel and it is very strange that complete facts were not mentioned in the complaint despite complaint running into 12 pages.
55. Ld. counsel for accused has also highlighted that husband of the prosecutrix, Anil Yadav has stated that he used to earn Rs.1.5 lac to Rs.1 lac at the relevant time and it is unexplainable as to why the prosecutrix came in contact with the accused when her husband was having sound income.
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56. Ld. counsel for accused has also submitted that I.O. Of the case has not tried to ascertain the true facts of the case and has done faulty investigation. It is not clear why he has seized the mobile phone of Surender. He has also not examined any independent who could put light on the affairs of accused and prosecutrix. Ld. counsel for accused has also cited following citations:
a. Gaurav Magoo Vs. State of NCT of Delhi, Crl. A. 369/2014 b. Hari Chand Vs. State, Crl. A. 860/2013 c. Sadashiv Ramrao Hadbe Vs. State of Maharashtra (2006) 10 SCC 92 d. Abbas Ahmad Choudhary Vs. State of Assam, Cr. A. 951/2009 e. Narender Kumar Vs. State of NCT of Delhi, Crl. A. 206667/2009 f. Tuka Ram and Anr. Vs. State of Maharashtra, 1979 AIR 185 g. Uday Vs. State of Karnataka, Crl. A. 336/1996 h. Rai Sandeep @ Deepu Vs. State Delhi, Crl. A. 2486/2009 i. Tamzeezuddin @ Tammy Vs. State of NCT of Delhi, Crl. A. 1289/2004 and j. Prahlad Vs. State of Maharashtra, Cr. A 115/2016.
PERUSAL OF RECORD:
57. Arguments heard. Record perused. On perusal of record, it is revealed that on the complaint of prosecutrix Ex.PW6/A, present FIR Ex.PW1/A was registered against the accused.
58. It is further revealed that PW1 HC Parvesh Kumar, Duty Officer registered FIR, Ex.PW1/A on the basis of rukka received from Insp. Manmohan Kumar; PW1 HC Parvesh Kumar also made his endorsement, Ex.PW1/B on the rukka and issued a certificate, Ex.PW1/C under section 65 B of the Evidence Act Case No.28078/2016 State Vs. Ajay Kumar Sharma 19/31 regarding correct contents of computerized copy of FIR.
59. It is further revealed that prosecutrix pointed out shopcumoffice bearing no.
3458, Gali Lallu Misr of accused in the area of Sadar Bazar and I.O. had prepared site plan, Ex.PW11/B.
60. It is further revealed that Anil, husband of prosecutrix had given a pen drive to I.O. which contained the scene of sexual activity between accused and prosecutrix which he seized vide seizure memo, Ex.PW9/A.
61. It is further revealed that on 06.10.2015 I.O. had arrested the accused in the case vide arrest memo, Ex.PW11/C; his personal search was also conducted vide personal search memo, Ex.PW11/D. PW11 Insp. Man Mohan Kumar had interrogated him and during his interrogation accused had made his disclosure statement, Ex.PW11/E.
62. It is further revealed that medical examination of accused was conducted by PW4 Dr. Praveen vide MLC, Ex.PW4/A. PW5 Dr. Abhijeet had conducted medical examination of accused and found nothing to suggest that accused was incapable to perform the sexual act under normal circumstances vide his findings at point B to B on the overleaf of MLC, Ex.PW4/C.
63. It is further revealed that I.O. deposed that the doctor who had conducted potency test of accused had also collected his blood sample and sealed with the seal of HRH and handed over the same to Ct. Dilip along with sample seal which Ct. Dilip handed over to him and he seized vide seizure memo, Ex.PW11/F and he deposited the same with the MHC(M).
Case No.28078/2016State Vs. Ajay Kumar Sharma 20/31
64. It is further revealed that prosecutrix was sent in the company of PW7 W/Ct. Rinky for her medical examination to hospital where prosecutrix was medically examined by PW2 Dr. Shakti Sharma vide MLC, Ex.PW2/A. PW3 Dr. Mamta who mentioned the details of her examination on the overleaf of MLC, Ex.PW2/A at point A to A.
65. It is further revealed that the doctor who had conducted medical examination of the prosecutrix had handed over the exhibits pertaining to the prosecutrix to PW7 W/Ct. Rinky who had handed over the same to I.O. along with sample seal in sealed condition which he seized vide seizure memo, Ex.PW11/G; the exhibits were deposited by him in the Malkhana; prosecutrix was also counseled by an NGO in Hindu Rao Hospital.
66. It is further revealed that Insp. Kamlesh had produced prosecutrix in the court of Ld. Magistrate where her statement was recorded under section 164 Cr.P.C.; it was recorded by Ld. Rashmi Gupta, Ld. M.M., Tis Hazari Courts, Delhi.
67. It is further revealed that potency test of accused was conducted by Dr. Ashish Tyagi vide MLC, Ex.PW8/A which MLC was proved by PW8 Dr. Varun Garg.
68. It is further revealed that Chirag, son of accused had produced mobile phone make Nokia make and it was seized on the apprehension that it might have same obscene contents of pen drive; it was sealed in a pullanda and seized by I.O. vide seizure memo, Ex.PW11/H.
69. It is further revealed that I.O. had also seized mobile phone from Surender Case No.28078/2016 State Vs. Ajay Kumar Sharma 21/31 Sharma make Micromax Company vide seizure memo, Ex.PW11/I.
70. It is further revealed that during course of investigation the exhibits of the case were sent to FSL, Rohini for examination by I.O. He had filed three FSL reports by way of supplementary charge sheet which are Ex.PW11/J, Ex.PW11/K and Ex.PW11/L. I.O. identified the pen drive Ex.P1 to be the same pen drive which he seized in the present case; he also identified mobile phones make Nokia and Micromax, Ex.P2 and Ex.P3 respectively which he seized in the present case. He also identified retrieved data of pen drive and mobile phones vide is Ex.P4.
71. It is further revealed that on 13.10.2015 PW10 Ct. Surender had taken three exhibits of this case to FSL, Rohini and deposited there vide road certificate, Ex.PW10/A; he also obtained acknowledgement, Ex.PW10/B and deposited the same in the Malkhana.
72. Before reaching at any conclusion, let the relevant sections i.e. 376 IPC, 328/376D IPC, 506/376(2)(n) IPC be reproduced, which are as under: 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
(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 Case No.28078/2016 State Vs. Ajay Kumar Sharma 22/31
(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 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 Case No.28078/2016 State Vs. Ajay Kumar Sharma 23/31 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 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.
Section 376D. Gang Rape: Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.
FINDINGS:
73. Arguments heard. Record perused. On perusal of record, it is revealed that present case was registered on the complaint of prosecutrix Ex.PW6/A. Prosecutrix has been examined as PW6.
74. I have carefully considered the material evidence on record and has given my thoughtful consideration to the facts and circumstances of the case on the basis of submissions of Ld. Addl. PP made by the counsel for complainant and the Case No.28078/2016 State Vs. Ajay Kumar Sharma 24/31 ld. Defence counsel and has found that the following position is emerging out of the facts and circumstances of the case that:
a. It has been found as per the testimony of PW6 prosecutrix that she has made material improvements in her testimony recorded in the court from the statement given by her before the police and before the Ld. Magistrate. It is a fact that prosecutrix has not mentioned any specific date and time of the alleged incident of rape committed by accused with her.
b. The prosecutrix has made material improvements which has been confronted by the counsel for the accused as the prosecutrix stated that she had stated in her statement before the Magistrate, Ex.PW6/D that accused after reaching Ashok Vihar asked her to wait for the person known to him who would help her in getting her husband reinstated but no person came for half an hour. She was confronted with the statement Ex.PW6/D where it was not recorded.
c. The prosecutrix has also made material improvements which has been confronted by the counsel for the accused as the prosecutrix stated that she had stated in her complaint, Ex.PW6/A that in the month of October, 2004 in the evening time accused took her to a house in the area of Ashok Vihar, Delhi and made her to sit there and asked her to wait for the person known to him, who would help her in getting her husband reinstated and after about half an hour no other came there but the accused came there in drunken position and committed sexual intercourse with her without her consent and against her will and went somewhere else and she somehow managed to reach home by TSR. She was confronted with the complaint Ex.PW6/A where it was not recorded.Case No.28078/2016
State Vs. Ajay Kumar Sharma 25/31
d. The prosecutrix has also made material improvements which has been
confronted by the counsel for the accused as the prosecutrix stated that she had stated in her statement before Ld. Magistrate, Ex.PW6/D that after 23 days or a week of the incident accused met her on the way while she was returning from her shop. Accused apologized her for his said act saying that it was accidentally happened and he loves her and further told her that he will not do such thing with her anymore. She was confronted with the statement Ex.PW6/D where it was not recorded.
e. The prosecutrix has made material improvements which has been confronted by the counsel for the accused as the prosecutrix stated that she had stated in her statement before the Magistrate, Ex.PW6/D that she was disturbed emotionally, financially and socially and did not make any complaint to anyone and that she realized that he would help me and also trusted him. She was confronted with the statement Ex.PW6/D where it was not recorded.
f. The prosecutrix has made material improvements when she admitted that she had not given description of the two persons in her complaint, Ex.PW6/A. She had also admitted that she had also not given the description of these two persons in her statement, Ex.PW6/D. g. The prosecutrix has also admitted in her deposition that she had not made any complaint till 11.09.2015 regarding the fact that accused had made video of rape committed by two persons and started blackmailing her and used to call her at different places i.e. Rohini, King Palace Hotel (Jhandewalan), office of the accused in Doriwalan, Karol Bagh and his shop in Sadar Bazar and that he used to commit rape and unnatural sex with her and used to videograph the Case No.28078/2016 State Vs. Ajay Kumar Sharma 26/31 same from his mobile phone.
h. Prosecutrix was also confronted to the fact that "I used to resist to accompany the accused to aforesaid places by saying that her children has now grown up and I do not want to continue the relationship, he used to threat me by saying that he had already purchased the judge to get qualified the claim of his son and he had paid Rs.20 lacs to the judge". She was confronted with the complaint Ex.PW6/A and her statement Ex.PW6/D wherein these facts are not so recorded.
75. It is also seen from the testimony of prosecutrix that she had stated in her statement, Ex.PW6/D to Magistrate on the day of recording of her statement almost 20 police officials were present at her house and Inspector Man Mohan Singh had recorded her statement and made inquiries from the office of her husband and that her husband had handed over aforesaid pen drive to Insp. Man Mohan Singh. On that day she made complaint she was made to sit in police station for four hours and was forced to withdraw the complaint otherwise her clothes would be removed in the court by asking obscene questions. She was confronted with her statement Ex.PW6/D wherein these facts are not so recorded.
76. On perusal of the testimony of the husband of the prosecutrix who was examined as PW9 Anil Kumar Yadav, it is found that he had also deviated from the facts of the case which he got recorded in his statement under section 161 Cr.P.C. to the I.O. He was cross examined by Ld. Addl. PP for State on material aspects. His overall testimony is not inspiring confidence at all. On a specific question of the counsel for accused to him if he could tell as to how Case No.28078/2016 State Vs. Ajay Kumar Sharma 27/31 many times accused had committed rape with prosecutrix, he stated that he cannot the exact numbers and stated that accused had established physical relationship so many times. He has also stated that prosecutrix had told that she was raped at a place in Doriwalan and in another place in Ashok Vihar and he was not told by any other place where prosecutrix was raped by the accused.
77. Further testimony of PW9 Anil Kumar Yadav is also shaky on the issue when he was asked if prosecutrix had told about date, month and year of the rape committed by the accused on the above said places, to which he could not explain any answer and only stated that she was taken for the first time in Ashok Vihar and was raped.
78. Testimony of PW9 is also not inspiring confidence when he has stated that on 12.09.2015 he approached police station for the first time and made oral complaint to Insp. Man Mohan and did not make any written complaint to the SHO on that day regarding the present case. He has stated that police had collected pen drive Ex.P1 from him on 04.10.2015, whereas seizure memo Ex.PW9/A of the pen drive is prepared by the I.O. 05.10.2015.
79. From the overall testimony of the deposition of prosecutrix and her husband the position emerges that they have not been able to describe the incident of rape on any specific date and time. They also could not explain the unreasonable long delay of about years in lodging the complaint against accused which shows that their version is not free from doubt and they have some oblique motive to make complaint against accused.
80. Apart from the prosecutrix examined as PW6, her husband Anil Kumar Yadav Case No.28078/2016 State Vs. Ajay Kumar Sharma 28/31 examined as PW9, the other witnesses examined in the case are of not much importance and are of formal nature. PW11 is Insp. Man Mohan who has described his investigation conducted in the case and has identified the exhibits i.e. pen drive Ex. P1, Nokia mobile phone Ex.P2, Micromax phone of Surender Sharma Ex.P3.
81. There is no corroboration to the version of prosecutrix and her husband from any independent source. IO had not been able to trace or examine any other independent witness who could put light on the facts circumstances of the relationship between accused and prosecutrix which lasted for more than ten years.
82. During examination of prosecutrix the pen drive Ex.P1 was played in the court and it was found that accused and prosecutrix are indulging in physical relationship but the quality and contents of the pen drive are of very poor nature and seeing the same it is found that prosecutrix seems to be quite normal and conscious and not under any kind of pressure. Her acts indicate that she had been a consenting party in the acts being seen in the pen drive. So, even if it is presumed that the contents in the pen drive are of accused and prosecutrix there is no indication of any kind that prosecutrix was having any kind of pressure, strain upon her while indulging in act with the accused.
83. No doubt that the testimony of a sole witness i.e. prosecutrix can also be relied upon to hold a person guilty but in the present case the facts and circumstances are such that there had been no corroboration to the version of prosecutrix and unexplained delay of about ten years which gives rise to the issue of implication of accused by the prosecutrix and her husband and the testimony of Case No.28078/2016 State Vs. Ajay Kumar Sharma 29/31 the prosecutrix and her husband is not believable.
84. Life and liberty of a person is also of paramount consideration and the court has to maintain a balance in the society to find out the guilty persons and punish them and at the same time to give a fair chance of trial to the accused to explain the circumstances if they were having guilty mind and have acted in violation of prescribed law. Since the punishment to an accused for the offence under section 376 IPC is of quite magnitude, so the criteria of the proof against the accused to be established by the prosecution and its scrutiny has to be also on the higher side. In the present case I am of the considered opinion that the facts and circumstances of the case, the evidence, documents and the exhibits articles of the case if considered as a whole, then the allegations against accused are found to be not upto the mark and are short of holding him guilty for the offence.
85. The prosecution has not been able to seek any proper explanation from the prosecutrix and her husband regarding the long delay of more than ten years in lodging the complaint and of the various improvements and contradictions made in the deposition recorded in the court. As such the version mentioned by the prosecutrix is found to be improbable to the issue of rape as alleged by her. Hence, accused deserves to be given the benefit of doubt. Hence, accused Ajay Kumar Sharma is acquitted from the charges u/s 376 IPC, 328/376D IPC, 506/376(2)(n) IPC by giving him benefit of doubt.
86. 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.
Case No.28078/2016State Vs. Ajay Kumar Sharma 30/31
87. Since prosecutrix had been consenting party as per the discussion in my judgment hence, no compensation is awarded to her.
88. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 07.09.2018.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
TIS HAZARI COURTS, DELHI.
Digitally
signed by
RAMESH
RAMESH KUMAR
KUMAR Date:
2018.09.10
15:32:19
+0000
Case No.28078/2016
State Vs. Ajay Kumar Sharma 31/31