False rape case accused called Rape case survivor

IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number : 51 of 2014.
Unique Case ID Number : 02401R0137742014.

State
versus
Mr. Harminder Singh,
Son of Mr. Harinder Singh,
Resident of J-94, Ground Floor,
Vikas Puri, New Delhi.

First Information Report Number : 224/2014.
Police Station Tilak Nagar,
Under sections 376/323/506 of the Indian Penal Code.
Date of filing of the charge sheet before : 22.03.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 17.04.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 04.06.2014.
Date of judgment : 04.06.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the State.
Accused on bail with counsel Mr. Surender Tyagi.
Prosecutrix in person.
Ms. Shubra Mehndiratta and Ms.Poonam Sharma, counsel for Delhi Commission for Women.
************************************************************

JUDGMENT

“To call woman the weaker sex is a libel; it is man’s injustice to
woman. If by strength is meant brute strength, then, indeed, is
woman less brute than man. If by strength is meant moral power,
then woman is immeasurably man’s superior. Has she not greater
intuition, is she not more self-sacrificing, has she not greater
powers of endurance, has she not greater courage? Without her,
man could not be. If nonviolence is the law of our being, the future
is with woman. Who can make a more effective appeal to the heart
than woman?”—-Mahatma Gandhi.

1. Mr.Harminder Singh, the accused, has been charge sheeted, by Police Station Tilak Nagar, Delhi for the offence under sections 376/323/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that for the last six months prior to 24.02.2014, date and time unknown, at Pelican Banquet, Vikas Puri within the jurisdiction of Po lice Station Tilak Nagar and once at Gurgaon, he committed rape upon the prosecutrix (name withheld to protect her identity)several times under the false promise to marry her and thereafter threatened the prosecutrix to upload her photographs and video on face book and to defame her, if she did not maintain the physical relations with him and the accused also voluntarily gave beatings to prosecutrix many times.

2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 22.03.2014 and after its committal, the case has been assigned to this Court of the Addition al Sessions Judge (Special Fast Track Court)-01, West, THC, Delhi for 17.04.2014.

3. After hearing arguments, charge for offence under sections 376/323/506 of the IPC was framed against the accused vide order dated 19.04.2014 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.

6. The prosecutrix, as PW1, has deposed that in the month of January, 2013, she met accused Harminder Singh through her friend Ms.Gunjan and after 3-4 months, they became very good friends. They started meeting each other very frequently and accused had physical relations with her with her free consent. But after sometime there were certain differences of opinion between her and accused and they had strained relations. She was very much stressed. She discussed the matter with her few relatives and well wishers who advised her to lodge a complaint against the accused. In the month of February, 2014, someone whose name she did not know called the police. The police reached her house and she stated the above mentioned facts to the police. Her statement (Ex. PW1/A)was recorded by the police. She did not have any grievance against the accused. She has prayed that he may be acquitted. The police had produced her before a learned Magistrate in Tis Hazari Courts where her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex. PW1/B) was recorded. She had made the statement at the instance of her well wishers as she was very much stressed at that time. She was also taken to a hospital by the police where she was medically examined.

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, the prosecutrix has deposed that she did not remember the names of the relatives and the well wishers at whose instance the complaint was lodged before the police. The complaint (Ex. PW1/A)and the statement under section 164 of the Cr.P.C. (Ex. PW1/ B)were read over to the witness by the Additional Public Prosecutor and thereafter she was further cross examined. She has deposed that she had not stated to the police in her complaint (Ex. PW1/A)that about six months prior to the lodging of the complaint, accused took her to Pelican Banquet, Vikas Puri, Delhi where he had already got booked one room and accused had forcibly physical relations with her and thereafter promised to marry her and he further stated that if she did not marry him, he would die. She was confronted with statement Ex.PW1/A from portion A to A1 where it is so recorded. She had not stated to the police in her complaint(Ex. PW1/A)that whenever she asked him to marry her, he started saying that he would talk to his parents first and after sometime, he stated that his mother was not liking her and therefore he would not marry her and he started blackmailing me saying that he was having video recording of the obscene acts and would show to the same to her mother. She was confronted with statement Ex.PW1/A from portion B to B1 where it is so recorded. She had not stated to the police in her complaint (Ex. PW1/A)that whenever she refused to meet the accused, he would chase her and give beatings to her and forcibly have physical relations with her. She was confronted with statement Ex.PW1/A from portion C to C1 where it is so recorded. She denied the suggestion that police recorded her statement according to her version and she is deposing falsely to this effect. She denied the suggestion that she had made her statement before learned Metropolitan Magistrate under section 164 Cr.P.C. (Ex. PW1/B)voluntarily and not at the instance of her well wishers. During her medical examination whatever she had stated to the doctor, this was again at the instance of her well wishers. She denied the suggestion that she had given the medical history to the doctor voluntarily and not at the instance of her well wishers. She denied the suggestion that for the last six months prior to 24.02.2014, the accused committed rape upon her in at Pelican banquet, Vikas Puri and again in Gurgaon several times under the false promise to marry her. She denied the suggestion that the accused threatened her to upload her photographs and video on the face book and would defame if she did not maintain physical relations with accused. She denied the suggestion that the accused voluntarily gave beatings to her many times. She denied the suggestion that she is not supporting the prosecution case and deposing falsely as she has compromised the matter with the accused.

9. In her cross examination by the accused, the prosecutrix has admitted to be correct thatthe accused has not committed any offence. She has admitted that accused Harminder Singh has not raped her at all on a false pretext of marriage nor threatened her nor gave her any beatings. She has admitted that she had physical relations with the accused with her free consent. She has again prayed that the accused may be acquitted as he is innocent.

10. The prosecutrix, has not deposed an iota of evidence of her being raped at all. She has not even mentioned the words “rape”, “threat” , “blackmail” or “beatings” against the accused in her evidence nor has deposed anything incriminating against the accused.

11. 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, 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 official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the prosecution case and is hostile.

12. Statement under section 313 of the Cr.P.C. of the accused 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.

13. 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.

14. 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 view that her deposition cannot be treated as trustworthy and reliable. 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.”

15. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.

16. Consequently, no inference can be drawn that accused is guilty of raping the prosecutrix under the false promise of marriage, threatening and beating her. There is no material on record to suggest that the prosecutrix was ever raped by the accused under the false promise of marriage nor threatened by the accused to upload the photographs and video on face book to defame her nor gave voluntarily beatings to prosecutrix many times. No case is made out against the accused as there is no incriminating evidence against him. In fact, the prosecutrix has deposed that she had physical relations with the accused with her consent and she has also prayed for his acquittal.

17. 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 is innocent and has not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.

18. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376/323/506 of the IPC. There is no material on record to show that for the last six months prior to 24.02.2014, date and time unknown, at Pelican Banquet, Vikas Puri and once at Gurgaon, accused committed rape upon the prosecutrix several times under the false promise to marry her and thereafter threatened the prosecutrix to upload her photographs and video on face book and would defame her, if she did not maintain the physical relations with accused and the accused also voluntarily gave beatings to prosecutrix many times.

19. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape, threat and hurt. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place.

20. 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.Harminder Singh, for the offence under sections 376/323/506 of the IPC.

21. Consequently, the accused, Mr. Harminder Singh is hereby acquitted of the charge for the offence under section 376, 323, 506 of the IPC .

22. Compliance of section 437-A Cr.P.C. is made in the order sheet.

23. Case property be destroyed after expiry of period of limitation of appeal.

24. 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.

25. Here, I would also like to mention that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape as the prosecutrix retracted and turned hostile. In the circumstances such a person, an acquitted accused, who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.

26. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

27. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.

State versus Harminder Singh Announced in the open Court

(NIVEDITA ANIL SHARMA)
on this 04th day of June , 2014. Additional Sessions Judge,
(Special Fast Track Court)-01,
West, Tis Hazari Courts, Delhi.

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