-:1:- IN THE COURT OF SH. NARINDER KUMAR ADDL. SESSIONS JUDGE FAST TRACK COURTS ROHINI DELHI

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1 -:1:- IN THE COURT OF SH. NARINDER KUMAR ADDL. SESSIONS JUDGE FAST TRACK COURTS ROHINI DELHI SC No. 100/2 dated 20/12/2006 Date of Decision: 02/04/2007 State Versus 1. SURESH S/o Sh. Sukhbir Singh R/o D-125, Jhuggi Tagore Garden Extn. Delhi. FIR No. 391/2005 PS Rajouri Garden U/s. 376 & 313 IPC JUDGMENT Suresh (accused) has been facing trial in this case for offences punishable u/s 376 & 313 IPC on the allegations that on 24/04/2005 and during the period two years prior thereto, at different places, he continuously committed rape on the prosecutrix (whose name is not being mentioned here in view of the decisions of Hon'ble Apex Court). The other allegations levelled against the accused is

2 -:2:- that he forced the prosecutrix to undergo abortion without her consent. Present case was registered on the statement made by the prosecutrix before police of P.S. Rajouri Garden on 26/04/2005. Statement of the prosecutrix was made before W/SI Kamlesh. It stands recorded in the ruqqa appended to the statement of the prosecutrix that she was brought to police station by her mother Smt. Murti and sister in law Smt. Beena. During investigation, the prosecutrix was got medico legally examined from Deen Dayal Upadhayay Hospital on 26/04/2005. Statement of the prosecutrix was recorded u/s 164 Cr.P.C. by learned Judicial Officer, Tis Hazari Courts, Delhi, on 02/05/2005. In that statement, the prosecutrix levelled allegations against the accused. The S.I. also recorded statements of other relatives of the prosecutrix. The accused was arrested on 10/05/2005 when he surrendered in court. He too was got medico legally examined. On completion of investigation, challan was put in court. After compliance with provisions of section 207

3 -:3:- Cr.P.C., case came to be committed to the Hon'ble Court of Session. Prima facie case having been made out for offences u/s 376 & 313 IPC, charge was framed against the accused on 06/07/2006. Since the accused pleaded not guilty and claimed trial, prosecution examined following five witnesses: PW-1 Prosecutrix. PW-2 Smt. Murti, mother of prosecutrix. PW-3 Sh. Sanjiv Kumar, brother of prosecutrix. PW-4 Smt. Beena, Sister in law of prosecutrix. PW-5 Sh. M. K. Nagpal, learned Judicial Officer. It may be mentioned at the outset that prosecutrix while appearing as PW-1, did not support the case of prosecution as therein she did not level any allegation against the accused. It is in her statement recorded in court as PW-1 that Suresh accused is brother of her aunt. She denied to have made any complaint at P.S. Rajouri Garden. According to her, her parents got the complaint signed from her under pressure after subjecting her to torture and electric shocks. Then she deposed that Suresh present in court did no wrong against her. She further stated that accused did not take her

4 -:4:- anywhere. From her statement in chief examination, it can safely be said that witness did not raise any accusing finger against the accused. Learned Addl. P.P. for State put leading questions to her with permission of court. When so examined, the witness admitted to have signed the statement at point A i.e. statement dated 26/5/2005 made before the police. However, in this respect she stated that this statement was given by her when her parents took her to P.S Rajouri Garden under pressure. She denied to have told to the police that she had got aborted twice without her consent. According to her, this fact was got recorded by her sister in law, father and brother. She denied to have stated before the police that Suresh accused continuously raped her for two yeas on the pretext of marriage and job. She also denied to have made any report to the police on 26/4/2005. According to her, actually her parents got made this complaint against her wishes. She admitted that she was got medico legally examined but added that she was got medico legally examined forcibly. She also denied to have told the Dr. regarding commission of rape on her person on 24/04/2005.

5 -:5:- When questioned about her statement u/s 164 Cr.P.C. recorded on , the prosecutrix admitted to have made statement and signed the same, but added that this statement was made by her under pressure. Then she denied to have made a statement in this case. However, in the next breath she even denied to have correctly made statement on 02/5/2005 correctly. She also denied to have filed any complaint against her parents alleging any kind of pressure or torture at their hands between 26/4/2005 and 06/05/2005. Prosecutrix tried to explain that she moved a complaint to police that her parents had put pressure on her and tortured her. She categorically denied that her parents never put any kind of pressure on her or that she filed a complaint against her parents. She also denied the suggestion put forth by Addl. P.P. for State that accused cheated her and induced her to have illicit relationship with her on the pretext that he would get her employment or marry her. She also denied even another suggestion that accused continuously raped her for three years. In her cross examination, the prosecutrix stated that accused never made any attempt to have any illicit

6 -:6:- relationship with her. According to her, accused never indulged in any wrong act with her or ever induced her for any kind of employment. From the above statement of the prosecutrix made in court, it can safely be said that prosecutrix has not raised any accusing finger against the accused. Then there are statements of brother, mother and sister in law of prosecutrix. All of them have deposed simply as to what they were told by prosecutrix. No crime is stated to have been committed by the accused against the prosecutrix in their presence. PW-2 Smt. Murti, mother of prosecutrix has deposed that on 26/05/2005 in the evening her daughter telephonically informed her that she would be reaching home but she did not reach home. She further deposed that in the same evening police reached their house to inquire about the whereabouts of her daughter, but by then, her daughter had reached home. The witness further deposed that police reached and took her and her daughter to P.S. Rajouri Garden, where her daughter made statement before the police. The witness was put leading questions by learned

7 -:7:- Addl. P.P. for State after seeking permission from the court whereupon she admitted her daughter having told her that she was subjected to rape by the accused and also that he got her aborted twice. The fact remains that PW-2 is not an eye witness to commission of any crime and she narrated whatever was told to her by the prosecutrix. PW-3 Sh. Sanjeev Kumar, brother of prosecutrix has deposed that on 26/04/2005 his sister told him that accused was threatening her for the last two years with death and death of his mother and as such used to commit sexual intercourse with her without her consent. She further told that accused had got her aborted twice. But the fact remains that no occurrence took place in presence of PW-3 Sanjeev Kumar and he deposed as to whatever was told by the prosecutrix to him and as such he is not an eye witness. Similarly, PW-4 Smt. Beena, sister in law of the prosecutrix has deposed as to what was told by the prosecutrix to her on 26/4/2005 at about 01:30 p.m. when she reached home. It is her statement that prior thereto prosecutrix was missing from the house w.e.f. 24/04/2005. A perusal of statement of PW-4 shows that she has narrated in

8 -:8:- court as to what was told by the prosecutrix to her and she is not an eye witness to commission of any crime. The fifth witness examined by prosecution is Sh. M.K. Nagpal, learned Judicial Officer, before whom the prosecutrix made statement levelling allegations against the accused. That statement is Ex.PW-5/A. It is well settled that statement u/s 164 Cr.P.C. is not a substantive piece of evidence. As noticed above, the prosecutrix has not supported the case of prosecution or levelled any allegation against the accused in respect of any of the charges for which the accused has been facing trial. As rightly submitted on behalf of the prosecution, statements of other witnesses are formal in character. Accordingly, prosecution evidence has been closed. Since the prosecutrix has not levelled any allegation against the accused, there being nothing incriminating on record, recording of statement of accused u/s 313 Cr.P.C. is dispensed with. In view of the above discussion, when there is not even an iota of evidence in the statement of prosecutrix, this court has no option but to order for acquittal of Suresh

9 -:9:- accused of the charges for which he has been facing trial. I order accordingly. While parting with the judgment, it may be mentioned here that during trial an application u/s 340 Cr.P.C. came to be filed and forwarded by learned Addl. P.P. for State with a prayer to take action against the prosecutrix/and present accused for offences u/s 193, 195-A, 196-A IPC on the allegations that the prosecutrix has turned hostile and not supported the case of prosecutrix while appearing in court under influence of accused. I have heard learned Addl. P.P. for State on the application u/s 340 Cr.P.C. From the record, it stands established that the prosecutrix made statement u/s 164 Cr.P.C. levelling specific allegations against the accused. Therein the prosecutrix specifically alleged that she was given beatings by the accused; that she became unconscious and she found that she had been raped. Therein, she also levelled specific allegations that on one occasion her pregnancy was terminated by administering her some medicine and on the other occasion, the same was got aborted in Moti Nagar and

10 -:10:- the operation was against her will and on the promise that accused would marry her. While appearing in court, prosecutrix admitted her statement before learned Metropolitan Magistrate and to have signed the same. However, she came forward with the version that the statement Ex.PW-5/A was made by her under pressure. Record would reveal that learned Judicial Officer, before proceeding to record the statement of prosecutrix, put some preliminary questions to judge her capacity of understanding and to know that she was going to make her statement voluntarily or not, and after satisfying himself, the learned Judicial Officer recorded her statement Ex.PW-5/A. It does not stand recorded in statement Ex.PW-5/A that prosecutrix at any point of time pointed out to learned Judicial Officer that she was under any kind of pressure at the time she made statement on 02/05/2005. Furthermore, mother, brother and sister in law of prosecutrix have categorically stated that prosecutrix came to them on 26/04/2005 and narrated the entire incident levelling allegations of rape and abortion by the accused and it was only thereafter that the prosecutrix herself called the police

11 -:11:- and got the case registered. Even while making her statement made in court prosecutrix nowhere explained as to under whose pressure and under what kind of pressure she was at the time her statement was recorded. I find nothing on record to suggest that prosecutrix was under any kind of pressure at the time she made statement before learned Judicial Officer. As a result, this court finds that the prosecutrix has actually tuned volte-face and made false statement before this court while stating that she made statement before learned Metropolitan Magistrate on 02/5/2005 under pressure. This court is of the opinion that it is expedient in the interest of justice to file a complaint against the prosecutrix for her having given false evidence before this court. File be consigned to record after doing the needful. Announced in Open Court Dated April 2 nd, 2007 [ NARINDER KUMAR ] Addl. Sessions Judge Fast Track Court: Delhi