Delhi District Court
State vs Kishan @ Kalu -:: Page 1 Of 12 ::- on 28 November, 2015
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,WEST,
TIS HAZARI COURTS, DELHI
Sessions Case Number : 10/2015.
Unique Case ID Number : 02401R0630182014
State
Versus
Mr. Kishan @ Kalu
S/o Mr. Pishori Singh
R/o K-31, Shyam Nagar
New Delhi.
First Information Report Number : 181/2014
Police Station : Tilak Nagar
Under sections 376 / 328 of the Indian Penal Code.
Date of filing of the charge sheet before : 04.12.2014
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 27.01.2015.
Arguments concluded on : 28.11.2015.
Date of judgment : 28.11.2015.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for State is on
leave.
Mr. Masood Ahmed, Additional Public Prosecutor for State (for
bail).
Mr. P.K. Ranga, Substitute Additional Public Prosecutor for
State.
Accused Mr. Kishan @ Kalu on bail.
Dr. Anil Kumar Gupta, Dr.Sanjela Gupta, Mr. S.B Patnaik
and Mr. Sushil Dogra, counsel for accused.
Prosecutrix is present with her counsel Mr. Nitin Kumar.
************************************************************
Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar
Under sections 376, 328 of the Indian Penal Code.
State versus Kishan @ Kalu -:: Page 1 of 12 ::-
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there."...........Kurt Cobain ************************************************************
1. Mr. Kishan @ Kalu, the accused has been charge sheeted by Police Station, Tilak Nagar, Delhi for the offence under sections 376 and 328 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that since January, 2014 at unknown time at WZ 46, Ground Floor, Mukherjee Park, Gali no.2, Tilak Nagar, New Delhi, he had administered some stupefying or intoxicating material mixed in a cold drink to prosecutrix (name mentioned in file and withheld to protect the identity of the prosecutrix) with intent to commit the offence of rape on her and thereafter he committed rape upon her; at unknown time and place he also prepared her video and threatened her to have physical relations with him again otherwise he would show her video to her family members.
2.After completion of the investigation, the charge sheet against accused Mr. Kishan @ Kalu was filed before the Court of the learned Metropolitan Magistrate on 04.12.2014 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 27.01.2015.
3.After hearing arguments, vide order dated 03.03.2015, charge for Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
State versus Kishan @ Kalu -:: Page 2 of 12 ::-
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offence under sections 328 IPC read with section 376 IPC and 506 of the IPC was framed against the accused Mr. Kishan @ Kalu to which he pleaded not guilty and claimed trial.
4.In order to prove its case, the prosecution has examined the prosecutrix as PW1.
5.All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed. Preliminary inquiries have been made from the prosecutrix and it appears that she is well oriented and is capable of giving rational answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
6.The prosecutrix, as PW1, has deposed that her husband runs a shop under the name and style of Arjun Singh Chicken Corner at Shop No.'A' (address mentioned in file and withheld to protect the identity of the prosecutrix). Accused Mr. Kishan @ Kalu used to visit her husband's shop for purchasing chicken and she knew him. Ms. Sonia Kaur is the Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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wife of the accused and she knew her also. The accused and she was having an affair since about last two years. They used to have physical relations with her free consent. This fact was not known to her husband and the wife of the accused. His wife came to know about her affair with the accused about one year ago and she had fought with her. Mr. Pramood Singh, her brother in law (Jija) who is married to her sister Ms. Sonia, advised her to make a complaint against the accused and not his wife. He also made her make the complaint in the manner which is elaborated in her statement given to the police. He made her level allegations of the accused intoxicating and raping her and threatening and blackmailing her with a video and threatening to show the video to her family members and forcing her to have physical relation with him. She has deposed that the accused has not raped her nor committed any offence against her. She does not have any grievance against the accused. She has prayed that the accused may be acquitted.
7.As the prosecutrix was hostile and had resiled from her earlier statement, the Substitute Additional Public Prosecutor has cross- examined her
8.In her cross examination by the Substitute Additional Public Prosecutor for State, the complaint / statement of the prosecutrix made to the police, statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), MLC of the prosecutrix were read out to her and shown to her and thereafter she was cross examined. The prosecutrix has admitted that she had made the statement to the police Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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that the accused had intoxicated and raped her and that he had prepared her obscene video with which he has blackmailed and threatened her to have physical relations with him. Her statement to the police is Ex.PW1/A. She has voluntarily stated that she had subsequently told the police that the accused has not committed any offence. She has admitted that she had been produced by the investigation officer before the learned Metropolitan Magistrate for her statement under section 164 of the Cr.P.C. and her statement under section 164 of the Cr.P.C. (Ex. PW1/B) was recorded by the learned Metropolitan Magistrate and she had made the statement before the learned Metropolitan Magistrate that the accused had intoxicated her and had removed her clothes from the lower part of her body. She has admitted that she had told the learned Metropolitan Magistrate that the accused had prepared her obscene photograph with which he has blackmailed and threatened her to have physical relations with him. She has voluntarily stated that she had been told by the police to make the statement before the learned Metropolitan Magistrate as per her statement to the police. She again said that the accused has not committed any offence and he is innocent. She has admitted that she had told the learned Metropolitan Magistrate that the accused had given her Rs.5,000/- on loan. She has voluntarily stated that although she had met with accused at Tilak Nagar prior to the registration of this case for returning the loan but she had not returned the same. She has further admitted that she was taken to Deen Dayal Hospital where she was medically examined vide MLC (Ex.PW1/C) and had refused her gynecological examination as the accused had not committed any offence. Her refusal for gynecological examination is mentioned in the MLC (ExPW1/C). She has admitted that in her history she had told the doctor that she had been sexually assaulted. She has voluntarily stated that she had been told by the police to make the statement before the doctor as per her Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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statement to the police. She again said that the accused has not committed any offence and he is innocent. She had learnt from the police that the accused has been granted anticipatory bail. She has denied that she was deposing falsely as she have won over by the accused and the allegations levelled by her in the complaint (Ex.PW1/A) and her statement u/s 164 Cr.P.C. (Ex.PW1/B) are based on correct facts. She has denied that she had made her statement to the police and the learned Metropolitan Magistrate voluntarily and not due to the pressure of Mr. Pramod or anyone else. She has further denied that as she had settled the dispute with the accused and compromised with him, she was deposing falsely and the accused had forcibly taken her to Vaishno Devi, Jammu, Vrindavan and Agra where he had raped her. She again say that the accused is innocent and she prayed that he may be acquitted.
9.She has also been cross examined on behalf of accused Mr. Kishan @ Kalu and admitted that the accused is innocent and has not committed any offence. She has admitted that she was still involved in an affair with the accused and she was still having physical relations with him. She has admitted that prior to the registration of the case as well as later on, she was continuously having physical relations with the accused which are with her free consent. She has admitted that the accused has neither intoxicated her nor raped her nor prepared her obscene video or photographs nor blackmailed and threatened her with the same to have physical relations with him. She has admitted that she had gone with the accused to Vaishno Devi, Jammu, Vrindavan and Agra and had physical relations with him at several places with her free consent. She has admitted that as Mr. Pramod had threatened to disclose to her husband about her affair with the accused, she Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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had got the present case registered on false facts. She has again prayed that the accused may be acquitted.
10.In the circumstances, as PW1, the prosecutrix, who is the star witness, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused Kishan@ Kalu and has not deposed anything incriminating against the accused, the prosecution evidence is closed, declining the request of the Substitute Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself, the most material witness, has not supported the prosecution case and is hostile.
11.Statement under section 313 of the Cr.P.C of accused Mr. Kishan @ Kalu is dispensed with as there is nothing incriminating against him when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
12.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
13.In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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view that the case of the prosecution cannot be treated as trustworthy and reliable as the prosecutrix has retracted and resiled from her earlier statement. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
14. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
15.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
16.If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
17.Consequently, no inference can be drawn that accused Mr. Kishan @ Kalu on the allegations that since January, 2014 at unknown time at WZ 46, Ground Floor, Mukherjee Park, Gali no. 2, Tilak Nagar New Delhi had administered some stupefying or intoxicating material mixed in a cold drink to prosecutrix with intent to commit the offence of rape on her and thereafter he committed rape upon her; at unknown time and place he also prepared her video and threatened her to have physical relations with him again otherwise he would show her video to her family members.
18. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused Mr. Kishan @ Kalu has neither intoxicatd her nor raped her nor prepared her obscene video or photographs nor blackmailed and threatend her with the same to have physical relations with him. She has even prayed for his acquittal. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
19.The prosecutrix has deposed that the accused has not committed any Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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offence. Accused Mr. Kishan @ Kalu has neither intoxicated her nor raped her nor prepared her obscene video or photographs nor blackmailed and threatend her with the same to have physical relations with him. She has prayed that the accused may be acquitted.
20.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences of intoxication and rape as well as threat. The evidence of the prosecutrix makes it highly improbable that such incidents ever took place. She has categorically deposed that the accused Mr. Kishan @ Kalu has neither intoxicatd her nor raped her nor prepared her obscene video or photographs nor blackmailed and threatend her with the same to have physical relations with him. She has even prayed for his acquittal.
21.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr. Kishan @ Kalu for the offences under sections 328 IPC read with section 376 IPC and 506 IPC as the prosecution has failed to prove that the accused has committed the offences of intoxication, rape, blackmailing and threatening.
22.Consequently, accused Mr.Kishan @ Kalu is hereby acquitted for the offence under sections 328 IPC read with section 376 IPC Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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and 506 IPC.
23.Compliance of section 437-A Cr.P.C. is made in the order sheet.
24.Case property be destroyed after expiry of period of limitation of appeal.
25.It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
26.It cannot be ignored that the accused due to this case which has ultimately ended in his acquittal, has suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. It may not be possible to restore his dignity and honour nor compensate him for the humiliation, misery, distress and monetary loss. However, his acquittal Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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may give him some solace. He may also file any case for damages against the prosecutrix, if advised.
27.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
28.After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 28th day of November, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 10 of 2015.
Unique Case ID Number : 02401R0630182014.
FIR No. 181/2014, Police Station Tilak Nagar Under sections 376, 328 of the Indian Penal Code.
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