Delhi District Court
State vs 1. Balram @ Veeru on 17 October, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0391902013
SC No.39/14 Date of institution : 01.03.2014
FIR No.14/13 Date on which arguments
PS: Nand Nagri were herd : 25.09.2014
U/S. 365/342/376/495/ Date of judgment : 17.10.2014
506/174-A IPC, u/s 109
read with Sec. 376 IPC
and 506/34 IPC
State Versus 1. Balram @ Veeru
S/o Bhagwat Kishore
2. Sonia W/o Balram @ Veeru
R/o B-4/272, Nand Nagri,
Delhi.
3. Chanderwati W/o Bhagwat
Kishore
4. Gulshan S/o Bhagwat Kishore
All R/o B-4/272, Nand Nagri,
Delhi.
5. Sonu S/o Gulshan
R/o B-4/272, Nand Nagri,
Delhi.
6. Jyoti W/o Umrav
R/o Bhu Jhori, District, Jhajjar,
SC No.39/14 State v. Balram @ Veeru etc Page 1 of 29
Haryana.
7. Bharti W/o Ravi
R/o A-4/333, Nand Nagri,
Delhi.
8. Savitri W/o Pappu Lal
R/o Chaurasi Ghante, Sita Ram
Bazar, Delhi.
9. Hemlata W/o Jargi
R/o H. No.779, Banbtan Colony,
near Ghanta Ghar Railway
Road, Meerut, UP.
JUDGMENT
1. The present case was registered in pursuance of order dated 15.12.2012 passed by learned Metropolitan Magistrate Karkardooma Courts on the complaint dated 23.08.2011 filed by the complainant/prosecutrix against the accused persons. In the complaint she has made following allegations:
(i) The prosecutrix and accused no.1 Balram @ Veeru were known to each other. On 12.10.2010, the prosecutrix was alone at her home. When she went outside her home to purchase some goods from the market, she found accused no.1 Balram @ Veeru in the street. Accused no.1 Balram @ Veeru took the prosecutrix at the house of SC No.39/14 State v. Balram @ Veeru etc Page 2 of 29 his friend Vicky at Saboli, Delhi in undue manner where she met his friend Vicky and wife of accused Balram @ Veeru i.e. accused no.2 Sonia. Accused no.1 Balram @ Veeru told the prosecutrix that accused no.2 namely Sonia was his sister in law. The parents of the prosecutrix lodged a complaint in police station Nand Nagri. Accused no.1 Balram @ Veeru and the prosecutrix went to police station Nand Nagri where police obtained her signature on blank papers but she did not understand the paper work.
(ii) Accused no.1 Balram @ Veeru raped the prosecutrix between the night of 12.10.2010 and 13.10.2010 at the house of his friend Vicky. Thereafter on 13.10.2010 accused no.1 Balram @ Veeru took the prosecutrix to his house No. B-4/272, Nand Nagri, Delhi and forcibly locked her in a room. Prosecutrix also wanted to marry accused no.1 Balram @ Veeru. Accused no.2 Sonia made a video clip of the act of physical relations and sexual intercourse between the prosecutrix and the accused no.1 and she started threatening her.
(iii) At the house of accused no.1 Balram @ Veeru, his married sisters and his parents i.e. other accused persons were also residing. Accused persons were involved in drugs business and prostitution. On 27.10.2010 all the other accused persons who are family members of accused no.1) and some bad elements forcibly got married SC No.39/14 State v. Balram @ Veeru etc Page 3 of 29 the prosecutrix with accused no.1 Balram @ Veeru at Arya Samaj Mandir, Yamuna Bazar, Delhi. After this, the accused no.1 started beating the prosecutrix and tried to involve her in the business of prostitution.
(iv) After marriage, the prosecutrix came to know that the accused no.2 Sonia is the wife of accused no.1 Balram @ Veeru and she is not the sister in law (bhabhi) of accused no.1. When the prosecutrix objected to this, the accused no.1 started beating the prosecutrix and tried to kill her many times.
(v) On 07.5.2011, accused no.1 Balram @ Veeru tried to kill the prosecutrix and scrambled her neck with scarf and she sustained injuries on her neck. Prosecutrix saved herself and ran outside the house. Accused no.1 also came outside the house and beat the prosecutrix. One of their neighbours called the parents of the prosecutrix and father of the prosecutrix reached there. Accused persons beat the father of the prosecutrix and he also sustained injuries. Police reached the spot and took all the persons to the police station Nand Nagri and some paper work was done. The signatures of the prosecutrix were obtained on some papers and the police sent the prosecutrix with her parents.
(vi) On 09.05.2011, accused no.1 again threatened the prosecutrix on phone to kill her. On SC No.39/14 State v. Balram @ Veeru etc Page 4 of 29 10.05.2011 accused no.1 came to the house of prosecutrix with a plastic can of kerosene oil and threw kerosene oil on the house of the prosecutrix.
(vii) The prosecutrix also filed a petition u/s 11 of Hindu Marriage Act for declaring her marriage with accused no.1 null and void. On 01.08.2011 accused no.1 and 2 appeared in that court and made statement before the court that they have three children from their wedlock.
2. In pursuance of order dated 15.12.2012 of the learned MM, a case u/s 365/376/342/506/495 IPC was got registered against the accused persons. The prosecutrix was got medically examined at GTB Hospital. The statement of the prosecutrix u/s 164 Cr.P.C was got recorded. Accused Chanderwati was formally arrested. Accused Balram @ Veeru could not be arrested and proceedings u/s 82 Cr.P.C were issued against him. Accused Balram @ Veeru was declared a proclaimed offender and later on he was got arrested u/s 41.1 (c) Cr.P.C. Accused was got medically examined. The sealed exhibits were sent to FSL, Rohini for forensic examination. After completion of investigation, the chargesheet u/s 365/376/342/506/495 IPC IPC was filed against the accused persons.
SC No.39/14 State v. Balram @ Veeru etc Page 5 of 293. Since the offences in this case were triable by the court of Sessions, vide order dated 24.02.2014, Ld. M.M. committed this case to the Court of Sessions and on allocation, it was assigned to this court.
4. Vide order dated 13.03.2014, a charge u/s 365/342/376/495/506 IPC was framed against accused no.1 Balram @ Veeru, charge u/s 109 IPC r/w section 376 and charge u/s 506/34 IPC was framed against accused no.2 Sonia. Charge u/s 506/34 IPC was framed against accused persons no.3 to 9 i.e. accused persons Chanderwati, Gulshan, Sonu, Jyoti, Bharti, Savitri and Hemlata. Accused persons pleaded not guilty and claimed trial.
5. Vide order dated 19.05.2014 passed by this court, an additional charge u/s 174A IPC framed against accused no.1 Balram @ Veeru as during investigation this accused had absconded himself and he had failed to appear at the specified place and time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973. Accused Balram @ Veeru pleaded not guilty to this additional charge also and claimed trial.
SC No.39/14 State v. Balram @ Veeru etc Page 6 of 296. In support of its case, prosecution has examined eight witnesses i.e. ASI Dal Chand as PW1, prosecutrix as PW2, father of the prosecutrix as PW3, W/SI Usha as PW4, Dr. Viras as PW5, HC Rang Lal as PW6, Ct. Mahipal Yadav as PW7 and Pandit Rajesh Kumar as PW8.
7. Out of these witnesses, PW2 (prosecutrix), PW3 (father of prosecutrix) are the material witnesses of the case whose testimonies shall be discussed at a later stage.
8. PW1 ASI Dal Chand is the duty officer who recorded the FIR in the present case and proved the same as Ex. PW1/A. He also made endorsement Ex.PW1/B on the rukka.
9. PW5 Dr. Viras deposed that on 21.01.2013 he was working as a Junior Resident at the GTB Hospital. On that day the prosecutrix was examined by him and on local examination, no external injury was seen and she was referred to gynecology department for further examination. He proved the MLC of the prosecutrix as Ex.PW5/A.
10. PW6 HC HC Rang Lal is the witness in respect of charge u/s 174A IPC. He deposed that on 27.5.2013 he was SC No.39/14 State v. Balram @ Veeru etc Page 7 of 29 handed over the process u/s 82 Cr. P.C to execute against accused Balram @ Veeru. He reached the given address but the accused could not be found. He affixed a copy of the process at the main gate of the house of accused. He deposed that he made the public announcement through beat of drum in the gali. He also pasted one copy of the process on the notice board of Karkardooma Courts. This witness proved the report in this regard as Ex.PW6/A. This witness also deposed that he had also executed the process u/s 83 Cr.P.C against accused Balram @ Veeru. He further deposed that no movable or immovable property was found in the name of accused Balram @ Veeru. He recorded statement Ex.PW6/C of Shivani (bhabhi of accused Blaram @ Veeru) in this regard. He prepared his report Ex. PW6/D.
11. PW7 Ct. Mahipal Yadav deposed that on 27.09.2013 he was posted at police station Nand Nagri. He deposed that on that day he alongwith Ct. Shahzad and other staff was on patrolling duty in the area of B-Block, Nand Nagri. He received a secret information that a person aged about 28-30 years wearing blue colour jeans and grey colour shirt was standing at Kachipura Chowk near Nand Nagri who was a proclaimed offender. They reached that spot and a raiding party was organized. On the SC No.39/14 State v. Balram @ Veeru etc Page 8 of 29 pointing out of the secret informer, accused Balram @ Veeru was apprehended and arrested in the present case vide memo Ex.PW7/A and his personal search was conducted vide memo Ex.PW7/B. The DD No.17A in this regard is Ex.PW7/C. He prepared the kalandra u/s 41.1(c) Cr.P.C Ex.PW4/O. Disclosure statement Ex. PW4/F of accused Balram @ Veeru was recorded.
12. PW8 Pandit Rajesh Kumar from Yamuna Bazar deposed that on 27.10.2010 accused Balram and the prosecutrix came for their marriage alongwith two witnesses. Accused Balram and prosecutrix gave their affidavits for their marriage and Sonia accused no.2, first wife of accused Balram also gave no objection certificate for their marriage. The marriage of accused Balram and prosecutrix was solemnized as per Hindu rites and ceremonies and he proved their marriage certificate as Ex.PW8/A.
13. PW4 W/SI Usha deposed that complaint Ex.PW2/A of the prosecutrix was marked to her for investigation. She had gone through the contents of the complaint and discussed the same with senior officers and the FIR Ex. PW1/A was got registered. This witness further deposed that the prosecutrix was called to join the SC No.39/14 State v. Balram @ Veeru etc Page 9 of 29 investigation. She was medically examined at GTB Hospital where she refused her internal examination. On 22.01.2013 the statement of the prosecutrix u/s 164 Cr.P.C. was got recorded by the learned MM. This witness further deposed that she moved an application Ex.PW4/I for issuance of NBWs against accused no.1 Balram @ Veeru as he was not traceable. Thereafter she moved an application Ex.PW4/J for issuance of process u/s 82 Cr.PC against accused no.1 Balram @ Veeru. The process u/s 82 Cr.P.C Ex.PW4/K was executed by HC Rang Lal. She also moved an application Ex. PW4/L for issuance of process u/s 83 Cr.P.C against accused Balram. Process u/s 83 Cr.P.C Ex.PW4/M was also executed by HC Rang Lal. This witness further deposed that she also moved an application Ex.PW4/N for declaring the accused Balram as proclaimed offender and he was declared proclaimed offender by the court on 12.9.2013. Thereafter accused Balram was arrested on 27.09.2013 and he was got medically examined at GTB Hospital. Disclosure statement Ex. PW4/F of accused was recorded.
14. This witness further deposed that the exhibits were not sent to FSL, Rohini as the prosecutrix refused to undergo her internal medical examination. The other accused persons were not arrested and were shown in SC No.39/14 State v. Balram @ Veeru etc Page 10 of 29 column no.11. IO further deposed that the prosecutrix did not disclose about the address of accused Vicky and therefore he could not be arrested. Accused Balram @ Veeru was got arrested as proclaimed offender vide kalandra u/s 41.1(c) Cr. P.C Ex. PW4/O. IO further deposed that she recorded the statements of the prosecution witnesses and filed the challan in the court.
15. After closing of prosecution evidence, statements of accused persons u/s 313 Cr.P.C were recorded, Accused Balram stated that he was present in his house and did not conceal himself from the police. He also stated that PW6 did not visit his house at any point of time and he had obtained the signatures of Shviani (bhabhi of accused) and Manju (neighbour of accused) on some blank papers in the police station. He also stated that he moved an anticipatory bail application before the Sessions Court as well as before the Hon'ble High Court and this fact was in the knowledge of the IO. Accused Balram @ Veeru preferred to lead evidence in his defence.
16. The remaining accused persons who are family members/close relatives of accused Balram @ Veeru in their respective statements u/s 313 Cr. P.C stated that they are innocent and have been falsely implicated.
SC No.39/14 State v. Balram @ Veeru etc Page 11 of 2917. In his defence, accused Balram @ Veeru has examined Smt. Manju as DW1.
18. DW1 Smt. Manju deposed that she knew accused Balram as he is her neighbour. On 26.08.2013 accused was present in his house and she met him. This witness further deposed that on 26.8.2013 she did not make any statement to HC Rang Lal. She further deposed that one police official called her in the police station and obtained her signatures on some blank papers. Police official enquired about accused Balram and she replied that the accused is continuously residing in his house alongwith other family members.
19. I have heard arguments addressed by learned Addl. PP for the State and the learned defence counsel and perused the record.
20. The evidence of PW2 (prosecutrix) was got recorded on two dates i.e. 02.04.2014 and 28.04.2014. On 28.04.2014 this witness did not support the case of the prosecution on material aspects. PW2 (prosecutrix) in her evidence has deposed that she knew all the accused persons as accused Balram @ Veeru on 12.10.2010 took SC No.39/14 State v. Balram @ Veeru etc Page 12 of 29 her to his house. She further deposed that she was got married with accused Balram @ Veeru on 27.10.2010 at Arya Samaj Mandir, Jamuna Bazar, Delhi. She further deposed that she was kept confined by accused persons at B-4/272 till 07.05.2011 where she was beaten by the accused Balram, his wife (accused Sonia) and his other family members. She was also beaten by the accused persons and accused Balram tried to press her neck by chunni.
21. During her deposition recorded on 28.04.2014, the prosecutrix deposed that she does not know what had happened on 09.05.2011 and nothing had happened with her at the house of accused Balram. Prosecutrix identified her signatures on the complaint Ex. PW2/A. She deposed that she does not know the contents of the complaint Ex.PW2/A. She stated that she was taken to GTB Hospital where she refused her intenral examination and her clothes were not seized by the doctor in the hospital. Prosecutrix also deposed that she does not know whether her statement was recorded by the police or not. She further deposed that she was not raped by the accused Balram.
22. Since the prosecutrix did not support the case SC No.39/14 State v. Balram @ Veeru etc Page 13 of 29 of prosecution, she was cross examined by the learned Addl. PP on behalf of State. During her cross examination, she denied that she had mentioned in her complaint Ex.PW2/A that rape was committed on her by accused Balram at the house of Vicky between night of 12.10.2010 and 13.10.2010. She also denied that she had mentioned in Ex. PW2/A that video clip was made by co-accused (Sonia wife of accused Balram) of sexual intercourse by accused Balram with her. Prosecutrix denied that she had stated that the accused persons were involved in drug and prostitution business. She also denied that the accused Balram and his wife Sonia asked her to indulge in prostitution or they blackmailed her by making her obscene film. She also denied that she stated to the police that on 21.01.2013 the accused Balram @ Veeru and his family members had threatened her.
23. Prosecutrix was also cross examined by the learned defence counsel wherein she admitted that she does not know the contents of complaint Ex.PW2/A. She further deposed that she made her statement u/s 164 Cr.P.C before the learned Metropolitan Magistrate at the instance of her relatives and some known persons. Prosecutrix deposed that whatever was recorded in her statement u/s 164 Cr.P.C did not happen with her. She SC No.39/14 State v. Balram @ Veeru etc Page 14 of 29 further admitted that she came to know about the marriage of accused Balram with Sonia when she went to the house of accused Balram. She also admitted that her marriage with accused Balram was performed with her consent and the first wife of accused Sonia was also present at the time of her marriage with accused Balram. She further deposed that the accused Balram never kidnapped and confined her. She deposed that she remained in the house of Balram happily and she was kept properly. She further deposed that on 02.04.2014 at the time of recording of her statement in the court, she was not in a fit state of mind and due to that reason she stated that she was beaten by accused Balram, his wife and his family members. She also maintained that the accused Balram and his wife never made her obscene ( nude) film. She admitted that she made her statement before learned Metropolitan Magistrate at the instance of other persons.
24. The prosecutrix was re-examined by the learned Addl. PP for the State but she maintained that she made her statement u/s 164 Cr.P.C before the learned Metropolitan Magistrate at the instance of other persons and denied that she came to know about the first marriage of accused Balram after her marriage with accused Balram.
SC No.39/14 State v. Balram @ Veeru etc Page 15 of 2925. PW3 (father of the prosecutrix) has also not supported the case of prosecution on material aspects. He deposed that his daughter (prosecutrix) and accused Balram had got married 2-3 years ago. He also deposed that his daughter did not disclose anything to him about what had happened with her. He denied that he lodged a complaint on 13.10.2010 with the police. This witness was cross examined on behalf of the accused persons and stated that his daughter never made any complaint to him against the accused persons. He also stated that in May, 2011 he did not make any complaint against the accused persons. He stated that now his daughter (prosecutrix) has got married with one Mukesh and she has two daughters and she is living happily in her matrimonial home. This witness stated that he has no grievance against the accused persons.
Accused Balram @ Veeru
26. This accused is facing trial for the commission of offences punishable u/s 365/342/376/495/506 IPC and u/s 174A IPC.
27. As far as offence punishable u/s 376 IPC is concerned, the prosecutrix has not supported the case of SC No.39/14 State v. Balram @ Veeru etc Page 16 of 29 the prosecution and deposed that she was not raped by accused Balram. She was declared hostile and was cross examined on behalf of State. During cross examination also, she maintained that the accused did not commit rape on her. During her cross examination on behalf of accused, the prosecutrix admitted that her marriage with accused Balram was performed with her consent and in her marriage accused Sonia (first wife of accused no.1 Balram) was also present. She also deposed that she does not know the contents of complaint Ex.PW2/A though she admitted her signature on the complaint. She has further deposed that she made her statement u/s 164 Cr.P.C at the instance of her relatives and whatever she had stated in that statement did not happen with her. Father of the prosecutrix has also not supported the prosecution version and deposed that his daughter (prosecutrix) did not disclose anything to her and she never made any complaint to him against the accused persons.
28. At the relevant time, the prosecutrix was above 18 years of age and she was legally capable to give her consent for sexual intercourse. In the deposition of the prosecutrix (PW2) and her father (PW3), no incriminating evidence has come on record against accused Balram @ Veeru for the commission of offence punishable u/s 376 IPC SC No.39/14 State v. Balram @ Veeru etc Page 17 of 29 and thus he is liable to acquitted for this offence.
29. Even otherwise, it would be apparent from the evidence of the prosecutrix that she entered into the marriage with the accused with her own consent and with full knowledge that he was already a married person. In such circumstances, the marriage of accused with the prosecutrix may be a void marriage but in absence of any force or deception, physical relations between the parties to such marriage would not constitute rape.
30. As far as offences punishable u/s 365/342/506 IPC are concerned, the prosecutrix again has not supported the case of the prosecution. She has admitted that accused Balram @ Veeru never kidnapped her. She has also deposed that accused Balram @ Veeru never confined her in any room at any place. She stated that she happily resided at the house of accused Balram @ Veeru and she was kept properly by him. Prosecutrix also denied that the accused Balram @ Veeru and his family members had threatened to kill her and her family members. Thus this accused Balram @ Veeru is liable to be acquitted for the offences punishable u/s 365/342/506 IPC also.
31. Prosecutrix during her deposition has admitted SC No.39/14 State v. Balram @ Veeru etc Page 18 of 29 that her marriage with accused Balram @ Veeru was performed with her consent and accused Sonia (first wife of accused Balram) was also present in their marriage. She also deposed that she had also come to know the earlier marriage of accused Balram with Sonia when she went to his house on 13.10.2010. Under these circumstances, it is held that the prosecution has also failed to establish that accused Balram @ Veeru was married with prosecutrix on 27.10.2010 after concealing the factum of his subsisting marriage with accused Sonia. Thus, he is liable to be acquitted for the offence punishable u/s 495 IPC.
32. Vide order dated 19.05.2014 passed by this court, charge u/s 174A IPC was also framed against accused Balram @ Veeru. Section 174A IPC makes non appearance of an accused in response to a proclamation u/s 82 Cr.P.C before the court a criminal offence. Section 174A IPC was added to the IPC with effect from 23.06.2006 by the Code of Criminal Procedure (Amendment) Act, 2005. Section 174A IPC is as follows:
"Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973, shall be punished with imprisonment for a SC No.39/14 State v. Balram @ Veeru etc Page 19 of 29 term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine"
33. Section 82 Cr.P.C referred to above runs as follows:
"(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court my publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the of publishing such proclamation.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-houses;SC No.39/14 State v. Balram @ Veeru etc Page 20 of 29
(ii) the Court my also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (4) Where a proclamation published under sub-
section (1) is in respect of a person accused of an offence punishable under section 302,304,364,367, 382,392,393,394,395,396,397,398,399,400,402, 436, 449,459 or 460 of the Indian Penal code ( 45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub- section (4) as they apply to the proclamation published under sub-section (1)."
34. In this case, the accused Balram @ Veeru was charged for the alleged commission of offences punishable u/s 365/342/376/495/506 IPC. Thus provisions of section 82 SC No.39/14 State v. Balram @ Veeru etc Page 21 of 29 (4) of Cr. P.C are not attracted to the present case. Section 82 (4) Cr.P.C stipulates that where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks, fit, pronounce him a proclaimed offender and make a declaration to that effect.
35. The evidence on record would show that in this case,the FIR was registered on 14.01.2013. On 26.4.2013 an application Ex. PW4/I was moved by the IO stating that accused Balram @ Veeru is concealing himself and thus non bailable warrants be issued against him. On the same date, learned MM passed an order and issued non bailable warrants against him for 23.5.2013. On 23.05.2013 another application Ex. PW4/J was moved by IO in which it was stated that accused Balram @ Veeru continued to conceal himself and thus a request for issuance of process u/s 82 Cr.P.C against him was made. Vide order dated 23.5.2013, learned MM after hearing the learned APP for the State, allowed the application of the IO and issued SC No.39/14 State v. Balram @ Veeru etc Page 22 of 29 process u/s 82 Cr.P.C against accused for 08.07.2013.
36. As per report Ex. PW5/A, process u/s 82 Cr.P.C was executed by HC Rang Lal. HC Rang Lal went to the house of accused Balram to execute process u/s 82 Cr.P.C and affixed one copy of the said process at the court notice board and another copy was affixed outside the house of the accused and the proclamation was read over with beating of drum.
37. Accused did not appear on or before the 08.07.2013, but he preferred to file a bail application (bail application no. 946/13) before the Hon'ble Delhi High Court. On 27.7.2013, Honble Delhi High Court directed that no coercive step shall be taken in the matter in the meantime. The said bail application was ultimately withdrawn on 12.08.2013 by the accused.
38. On 13.08.2013, investigating officer/prosecution moved an application Ex. PW4/L for issuance of process u/s 83 Cr. P.C which was allowed on the same day by learned MM. On 26.08.2013, the process u/s 83 Cr. P.C against accused received back unexecuted as no movable or immovable property of accused Balram was found. The report of HC Rang Lal in this regard is Ex.PW6/D. On SC No.39/14 State v. Balram @ Veeru etc Page 23 of 29 02.09.2013, an application Ex. PW4/N was moved by the IO for declaring the accused Balram @ Veeru as proclaimed absconding person. On that day process server was summoned for 06.09.2013 and eventually the statement of process server HC Rang Lal was recorded on 12.09.2013 and thereafter vide order dated 12.09.2013, the learned MM declared the accused Balram @ Veeru as absconder. Ultimately, accused Balram @ Veeru was got arrested on 27.09.2013.
39. Perusal of above chronology of events would show that there was valid issuance of of process u/s 82 Cr. P.C against the accused Balram @ Veeru. Accused Blaram did not appear at the specified place and specified time as required by that proclamation. The evidence on record also shows that provision of section 82 Cr. P.C were duly complied with. The learned MM recorded her satisfaction that the proclamation was duly published. Even otherwise section 82 (3) Cr.P.C stipulates that statement in writing by a court issuing the proclamation to the effect that the proclamation was duly published on the specified day in the manner subsisting in section 82 (2) (i) shall be conclusive evidence that the requirements of that section have been complied with and that the proclamation was duly published on such date.
SC No.39/14 State v. Balram @ Veeru etc Page 24 of 2940. Learned counsel for the accused has referred to deposition of DW1 Smt. Manju who stated that she knows the accused Balram @ Veeru as he is her neighbour. She deposed that on 26.08.2013 accused was present in his house and she met him on that day. She deposed that she did not make any statement to HC Rang Lal. She further deposed that on 26.08.2013 one police official called her in the police station and obtained her signatures on some blank papers and enquired about accused Balram to which she replied that accused Balram is continuously residing in his house alongwith other family members. She denied the suggestion of the learned Addl. PP for the State to the effect that on 26.08.2013 HC Rang Lal met her and he enquired about accused Balram and his movable or immovable assets and he also recorded her statement Ex.PW6/C. DW1 admitted her signature on Ex.PW6/C. DW1 deposed that she never made any statement to the police and her signatures were obtained on blank papers by the police. It is contended that deposition of DW1 shows that the allegations against accused Balram in relation to section 174A IPC are not correct.
41 Statement DW1 is of no help to the accused as her statement is in context of the process u/s 83 Cr.PC and SC No.39/14 State v. Balram @ Veeru etc Page 25 of 29 not under section 82 Cr.P.C. Both the proceedings are independent proceedings, though the proceeding u/s 83 Cr.P.C arise after completion of proceedings u/s 82 Cr.P.C. In this case no property of accused was got attached during execution of proceeding u/s 83 Cr.P.C. The fact that this accused moved an application for bail before the Hon'ble Delhi High Court which was ultimately withdrawn by him would show that the accused was aware about the pendency of the proceedings.
42. Submission of learned defence counsel that vide order 23.07.2013, the Hon'ble Delhi High Court directed that no coercive step shall be taken against the accused, the issuance of proclamation u/s 82 Cr.P.C became non operative cannot be accepted as the bail application was ultimately withdrawn by the accused. Order dated 23.07.2013 of the Hon'ble Delhi High Court was in the nature of an interim order which merged with the final order dated 12.8.2013 when the bail application was withdrawn by the accused.
43. In view of above fact, I am of the opinion that prosecution has been able to establish that this accused Balram @ Veeru did not respond to the proclamation issued u/s 82 Cr. P.C and thus he is liable to be convicted SC No.39/14 State v. Balram @ Veeru etc Page 26 of 29 for the offence punishable u/s 174A IPC.
Accused Sonia
44. This accused is the first wife of the accused Balram @ Veeru. Accused Sonia is facing trial for the offence punishable u/s 109 r/w section 376 IPC and also for the offence punishable u/s 506/34 IPC alongwith other accused persons. The allegations against accused Sonia is that she abetted offence of rape by accused Balram @ Veeru on the prosecutrix on the intervening night of 12/13.10.2010 at the house of one Vicky friend of accused Balram @ Vicky. The prosecution has also levelled an allegation against this accused that at the time of commission of rape on the prosecutrix by accused Balram, this accused Sonia had prepared an obscene video film and thus she abetted the commission of offence of rape by the accused Balram.
45. During evidence, the prosecutrix did not support the case of the prosecution on this allegation. She denied that accused Sonia prepared a video clip of sexual intercourse between the accused Balram and the prosecutrix. In her cross examination, prosecurtix maintained that the accused Balram and his wife never SC No.39/14 State v. Balram @ Veeru etc Page 27 of 29 made her video film and she made any such statement before the learned MM at the instance of other persons. Thus, no incriminating evidence has come on record against accused Sonia for the commission of offence punishable u/s 109 r/w section 376 IPC. Thus she is liable to acquitted for the said offence.
46. This accused is also facing trial for the commission of offence punishable u/s 506 IPC alongwith other accused persons. During evidence, the prosecutrix has denied that accused persons had threatened to kill her. She rather deposed that she remained in the house of accused Balram happily and she was kept properly. Thus, accused Sonia is also liable to be acquitted for the offence punishable u/s 506/34 IPC.
Remaining accused persons
47. The remaining accused persons namely Chanderwati (mother), Gulshan (brother), Sonu (sister in law), Bharti, Jyoti, Savitri, Hemlata (sisters) of the accused Balram @ Veeru are facing trial for the commission of offence punishable u/s 506/34 IPC. There is no incriminating evidence against these accused persons for the alleged commission of offence u/s 506/34 IPC. The SC No.39/14 State v. Balram @ Veeru etc Page 28 of 29 prosecutrix in her statement deposed that the accused Balram @ Veeru and his family members never threatened to kill her and her family members. Thus, these accused persons are also liable to be acquitted.
48. In view of above discussion, I am of the opinion that the prosecution has been able to prove its case against accused Balram @ Veeru u/s 174A IPC. Thus he is convicted for the offence punishable u/s 174A IPC. However, accused Balram @ Veeru is acquitted of the offences punishable u/s 365/342/376/495/506 IPC.
49. The prosecution has not been able to prove its case against accused Sonia for the charge of commission of offences punishable u/s 109 r/w section 376 IPC and u/s 506/34 IPC. Thus, accused Sonia is acquitted of the charge u/s 109 r/w section 376 IPC and u/s 506/34 IPC.
50. The other remaining accused persons namely Chanderwati, Gulshan, Jyoti, Sonu, Bharti, Savitri and Hemlata are acquitted of the charge u/s 506/34 IPC. Announced in the open court on 17.10.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No.39/14 State v. Balram @ Veeru etc Page 29 of 29