Delhi District Court
State vs Anil Kumar -:: Page 1 Of 14 ::- on 4 January, 2016
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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 : 102/2015.
Unique Case ID Number : 02401R0482972015
State
versus
Mr. Anil Kumar,
Son of Mr. Bhal Singh,
Resident of House No.2103/2,
Gali No.15, Prem Nagar, New Delhi.
First Information Report Number : 301/2015
Police Station : Mundka
Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
Date of filing of the charge sheet before : 10.08.2015
the Court of the learned Metropolitan Magistrate
Date of receipt of this file after committal : 15.10.2015
in this Court ASJ (SFTC)-01, West, Delhi.
Arguments concluded on : 04.01.2016.
Date of judgment : 04.01.2016.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the
State.
Accused is present on bail with counsel Mr. Vikas Manchanda.
Prosecutrix is present with Ms. Vandana Chanchal, counsel
for Delhi Commission for Women.
IO SI Sarita is present.
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Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka
Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 1 of 14 ::-
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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. Anil Kumar, the accused has been charge sheeted by Police Station, Mundka, Delhi for the offence under sections 354, 506, 376 (2) (n) of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that since 2010 to 2012 at unknown time at chamber no. 332 A, Western Wing, Tis Hazari Courts, Delhi, he outraged the modesty of the prosecutrix (name mentioned in file and withheld to protect the identity of the prosecutrix) and continued to rape her from 2010 to 2012 and also threatened her to kill her, her brothers and her parents, if she raised alarm.
2. After completion of the investigation, the charge sheet against accused Anil Kumar was filed before the Court of the learned Metropolitan Magistrate for 10.08.2015 and after committal the case had been filed to this Court for 15.10.2015.
3. After hearing arguments, vide order dated 06.11.2015, charge for offence under section 376 (2) (n) and 506 of the IPC was framed against the accused Mr. Anil Kumar to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 2 of 14 ::-
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prosecutrix as PW1 and her mother Ms.Bimla as PW2.
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 she got married with Mr. Sanjay Kumar on 22.08.2015. Earlier she was married with Mr. Bunty @ Dinesh on 08.12.2008. She remained with Mr.Bunty @ Dinesh for 2 and half month and thereafter got divorce from him. She knows accused Anil Kumar, who is a lawyer and she had engaged him for getting divorce from her husband Mr. Bunty @ Dinesh. She had a quarrel with accused Anil Kumar due to her divorce case. She was working with the accused Anil Kumar as a clerk. She used to give him the cases of marriage etc. to the accused Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 3 of 14 ::-
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and got the commission from him. Due to quarrel and differences with the accused, she lodged the complaint (Ex.PW1/A) against him in anger. She further deposed that the complaint (Ex. PW1/A) which was given by her to the police was written by her. She was taken by the police to Sanjay Gandhi Memorial hospital where she was medically examined vide MLC (Ex.PW1/B). She had refused her gynecological examination as no incident had occurred. Her statement under section 164 Cr.P.C (Ex.PW1/C) was recorded by the learned Metropolitan Magistrate. She had narrated the corrects facts before the learned Metropolitan Magistrate. She had handed over to the police the documents regarding her divorce I.e divorce judgment and decree comprising of 07 pages (Ex.PW1/E), which were seized vide seizure memo (Ex.PW1/D). She had not shown the chamber no. 332A, Western Wing, as the place of occurrence to the police. She has deposed that the accused has not committed any offence. She does not have any grievance against the accused since he has not committed any offence. She has pray that the accused may be acquitted as he is innocent. She does not want to say anything else.
7. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
8. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has admitted that she had herself written the Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 4 of 14 ::-
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complaint and she had alleged that accused had outraged the
modesty since 2010 to 2012 and also committed rape upon her and also threatened to kill her, her brothers and parents, if she raised alarm. She has deposed that however, the same had been made due to anger as quarrel with the accused. She voluntarily stated that the accused is innocent. She has denied the suggestion that she was raped by the accused during 2010 to 2012 at chamber no. 332 A, Western Wing, Tis Hazari Courts. She has denied the suggestion that she had forgiven the accused and due to this reason she is not deposing against him. She has denied the suggestion that the accused had also outraged her modesty during the period of 2010 to 2012 and also threatened to kill her, her brother and her parents, if she raised the alarm. She has denied the suggestion that the complaint was not written in anger and the quarrel with the accused. She has admitted that she did not inform to the police that she lodged the complaint due to quarrel with the accused and due to anger. She has denied that she did not inform to the police as her complaint was rightly written by her. She has denied that she is deposing falsely as she has been won over by the accused. She has denied that she is deposing falsely.
9. The prosecutrix has also been cross examined on behalf of accused Mr. Anil Kumar. She has admitted that during the hearing of the anticipatory bail application of the accused, she had appeared before the Learned Court and had not objected to the grant of anticipatory bail to the accused. She has admitted that the accused Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 5 of 14 ::-
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has not committed any offence. She has admitted that accused has neither outraged her modestly nor raped her nor threatened her at any point of time. She has again prayed that the accused may be acquitted as he is innocent and has not committed any offence against her.
10. PW 2, Ms. Bimla has deposed that her daughter/prosecutrix got married with Mr. Bunty @ Dinesh in 2008. She remained with her husband for about 2-3 months and got divorce from him. Prosecutrix is now married with Mr. Sanjay in 2015. Her daughter is staying happily with her husband Mr. Sanjay. Her daughter engaged the accused Anil Kumar, Advocate for getting divorce from her earlier husband Mr. Bunty @ Dinesh. Her daughter/prosecutrix did not disclose regarding anything which happened or wrong done with her by accused Anil Kumar. She had visited with her daughter at the house of the accused Anil Kumar but nothing happened there. Her statement was not recorded by the police.
11. As PW2 was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
12. In her cross examination by the Additional Public Prosecutor for State, PW 2 has denied the suggestion that her statement was recorded by the police on 30.05.2015. She did not state before the police that her daughter had disclosed that the accused maintained Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 6 of 14 ::-
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physical relations with her during 2010-2012 at chamber no. 332 A, Western Wing, Tis Hazari Courts while threatening her or that her salary was also kept by the accused. She was confronted with the statement Mark A, where it is so recorded. She did not state to the police that she along with her daughter/prosecutrix had visited the house of the accused Anil Kumar at Patel Nagar, New Railway station, where she along with her daughter were given beatings by the accused and his brother and they lodged the report at Police station Patel Nagar. She was confronted with the statement Mark A, where it is so recorded. She has denied the suggestion that she is not deposing the true facts as her daughter compromise the matter with the accused. She has denied the suggestion that she is deposing falsely as she has been won over by the accused.
13.She has not been cross examined on behalf of accused Mr. Anil Kumar.
14.In the circumstances, as PW1, the prosecutrix, who is the star witness and her mother Ms. Bimla, have turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused and have not deposed anything incriminating the accused, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 7 of 14 ::-
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evidence of formal or official witnesses when the prosecutrix herself, the most material witness, has not supported the prosecution case and is hostile.
15. Statement under section 313 of the Cr.P.C. of accused Mr. Anil Kumar is dispensed with as there is nothing incriminating against him when the prosecutrix and her mother PW Ms. Bimla are hostile and nothing material has come forth in their cross examination by the prosecution.
16.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.
17. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witness and the evidence of PW2, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the prosecutrix and her mother have retracted and resiled from their earlier statements. 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."
Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 8 of 14 ::-
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18. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
19. 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.
20. 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 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).
21. It can be seen that the prosecutrix has given different accounts of the alleged incident. In her complaint(Ex.PW1/A) the prosecutrix has stated that she was raped by the accused and he had committed but in the statement under section 164 Cr.P.C (Ex.PW1/C) she has Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 9 of 14 ::-
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stated that they had physical relations with their own consent. In her evidence before the Court, she has deposed that accused has not committed any offence. She does not have any grievance against accused since he has not committed any offence. She has stated that accused has neither outraged her modesty nor raped her. When the prosecutrix says at one time that she was raped and another time that she was not raped, then the case becomes unworthy of credence and unreliable. No explanation is coming forth from the prosecution regarding these material contradictions and discrepancies in the different statements of the prosecutrix which strike at the root of the prosecution case and are fatal blemishes which cannot be ignored.
22. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
23. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. No inference can be drawn that the accused is guilty of the charged offence under section 376 (2) (n) and 506 of the IPC as the prosecutrix has completely denied that the accused has outraged her modesty and raped her and threatened her. She has deposed that accused has not committed Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 10 of 14 ::-
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any offence. She does not have any grievance against the accused since he has not committed any offence. She has even prayed for his acquittal as he is innocent. There is no material on record that the accused had outraged the modesty of prosecutrix and raped her during the period of 2010 to 2012 and also threatened to kill her, her brother and her parents.
24. Therefore, no inference can be drawn that accused Mr. Anil Kumar since 2010 to 2012 at unknown time at chamber no. 332 A, Western Wing, Tis Hazari Court, Delhi, outraged the modesty of the prosecutrix and continue raped her from 2010 to 2012 and also threatened her to kill her, her brothers and her parents, if she raised alarm.
25.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. Anil Kumar has not outraged her modesty nor raped her nor threatened her to kill her, her brother and parents. She did not have any grievances against the accused. She has even prayed for his acquittal. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
26. From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
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and the prosecution has failed to establish the offence of rape her, outraged the modesty of prosecutrix and threatened her. The evidence of the prosecutrix makes it highly improbable that such incident ever took place. She has categorically deposed that the accused Mr. Anil Kumar has not outraged her modesty nor raped her nor threatened her to kill her, her brother and parents. She did not have any grievances against the accused. She has even prayed for his acquittal.
27. 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. Anil Kumar for the offence under section 376 (2) (n) and 506 of the IPC as the prosecution has failed to prove that the accused has committed the offence of rape, outraging the modesty of prosecutrix and threatening her.
28. Consequently, accused Mr. Anil Kumar is hereby acquitted for the offences under section 376 (2) (n) and 506 of the IPC.
29.Compliance of section 437-A Cr.P.C. is made in the order sheet.
30.Case property be destroyed after expiry of period of limitation of appeal.
31.It would not be out of place to mention here that today there is a Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
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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.
32. It cannot be ignored that the accused, who is a lawyer, 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.
33.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 may give him some solace. He may also file any case for damages against the prosecutrix, if advised. No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made but where is the law to protect a man from such a woman where he is being persecuted and implicated in false case, as in Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
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the present case. Perhaps, now it is the time to take a stand.
34.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
35.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 04th day of January, 2016. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number :102 of 2015.
Unique Case ID Number : 02401R0482972015.
FIR No. 301/2015, Police Station Mundka Under sections 354-A, 354-D, 506 and 376 (2) of the Indian Penal Code.
State versus Anil Kumar -:: Page 14 of 14 ::-