*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :11th February, 2019
Judgment delivered on: 29thMay, 2019
+ CRL.REV. P. 817/2017Crl.M.A.17634/2017
RAJ BAHADUR CHAUHAN ….. Petitioner
versus
STATE NCT OF DELHI ANR ….. Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Amit Sharma, Mr. Aditya Bhardwaj and Mr.Kunal
Sharma, Advs.
For the Respondent : Ms. Meenakshi Dahiya, Addl. PP for the State
Mr. Sunil Kapoor, Adv. for R-2
CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. Petitioner impugns order dated 21.08.2017 whereby charge has been
framed against the petitioner under Section 120B Indian Penal Code (IPC
for short) and Section 328 read with Section 376 IPC.
2. Subject FIR No.857/2016 under Section 376/Section120B/Section328/Section34 IPC was
registered on the complaint of the prosecutrix. As per the allegations in the
FIR, the co-accused is alleged to have convinced her that he was a good
person and she should get married to him. It is alleged that she was a
divorcee and he claimed to be a divorcee and they got married on
25.03.2016.
3. It is alleged that thereafter they started living together as husband
Crl.Rev.P.817/2017 Page 1 of 6
and wife at Chander Vihar, Nilothi Extension. Later on she came to know
that her husband had not divorced his first wife. When confronted, he
assured her that he had filed for divorce and divorce would be finalised
soon. Thereafter they shifted to another flat in Ranjit Nagar, Nilothi
Extension, Delhi.
4. It is alleged that by misleading that he was a divorcee he performed
marriage with her and made physical relations with her.
5. It is further alleged that on 29.07.2016, she learnt that her husband
would give her sedatives, because of which she would become unconscious
and then he would make his friends make physical relations with her. She
alleges that she learnt this on 29.07.2016 when she became conscious and
she found the petitioner, who is a jeweller in Tilak Nagar, lying beside her.
When she started screaming, her husband who was in the adjoining room
came inside and then they confessed that her husband had earlier also given
her sedatives and made the petitioner have physical relations with her when
she was unconscious.
6. Thereafter she alleges that she continued to live with her husband.
On 07.10.2016, when her husband did not return home, she called him and
he refused to come back home contending that she was not his lawfully
wedded wife.
7. It is alleged that on this she realized that he had entrapped her in his
love and convinced her to marry him. Further it is alleged that he had taken
Rs. 25 lakhs and about 12 tolas of gold jewellery from her.
8. Subject complaint was made on 23.11.2016.
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9. The Trial Court has framed a charge against the petitioner by merely
holding that “It has also been alleged by the prosecutrix against accused
Ravinder Singh Nanda that after performing the marriage, accused
Ravinder Singh Nanda used to reside with the prosecutrix and had
administered some intoxicating substance to her, by which she used to lose
her consciousness and taking benefit of her stage, accused Ravinder Singh
Nanda had allowed accused Raj Bahadur Chauhan to have physical
relations with prosecutrix without her consent. Therefore, there appears to
be a prima facie case made out, of criminal conspiracy raised between both
accused persons for commission of offence under Sectionsection 328 read with
Sectionsection 376 IPC.”
10. As per the allegations of the prosecutrix, the incident occurred on
29.07.2016 when she discovered petitioner lying beside her after she
regained consciousness.
11. As per the charge sheet, petitioner was called to join investigation
and during interrogation he disclosed that husband of the prosecutrix was
doing the job of a helper in his shop and had brought his wife for getting
some job which he had declined. He had further disclosed that on the date
of the incident, he was at a completely different location and nowhere close
to the house of the prosecutrix where she had alleged that the offence had
occurred.
12. The Investigating Officer verified the mobile location of the
petitioner and found that it was at Laxmi Nagar District Centre far away
from the scene of the incident. Further enquiries were made from the
neighbours and the landlord of the house where prosecutrix resided, and
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they stated that they had never seen anybody but her husband visiting the
prosecutrix.
13. Finding that there was no material to corroborate the allegation of
the prosecutrix the petitioner was kept in column No. 12 and was not
charge sheeted.
14. The contention of the petitioner is that he has been falsely
implicated. It is contended that he had made a complaint to the Station
House Officer, Police Station that the prosecutrix was indulging in
extortion and making a demand of Rs. 25,00,000/- from him failing which
she would implicate him in a false rape case.
15. Perusal of the record shows that the incident is alleged to have
happened on 29.07.2016. As per the FIR and the statement given by the
prosecutrix to the Police and also her statement recorded under Sectionsection 164
CrPC, she did not make any complaint after she allegedly learnt of the
offence on 29.07.2016. Complaint was lodged for the first time on
23.11.2016. She has further stated that she continued to reside with her
husband after 29.07.2016 and it is only when he did not return home on
07.10.2016, she called him up and he stated that he was not her husband
that she realised that she had been cheated and her husband had entrapped
her in his love and exploited her and taken Rs. 25 lakhs and 12 Tolas of
gold jewellery.
16. She has not given any explanation as to why no complaint was made
by her against the petitioner between 29.07.2016 and 23.11.2016. Though
mere delay in making a complaint is not fatal to prosecution and mere
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statement of the prosecutrix is sufficient but the version of the prosecutrix
and her statement has to inspire confidence.
17. Apart from not making any complaint for nearly four months, her
statement shows that after allegedly discovering, on 29.07.2016, that her
husband used to give her sedatives and permit Petitioner to make physical
relationship with her, she states that she continued to live with her husband
and it is only on 07.10.2016 when he did not come home she realised that
he had cheated her. Even thereafter the complaint is lodged only on
23.11.2016.
18. Further, investigation has revealed that the location of the petitioner
on the date of the incident was not of the scene of the alleged offence but
far away. The neighbours and landlord of the prosecutrix have stated that
they had never seen anyone apart from her husband visiting her.
19. There is no material on record to corroborate the version of the
prosecutrix that any physical relationship was established between the
petitioner and the prosecutrix. There is no material to substantiate the
allegation that any intoxicant or any sedative was given to the prosecutrix
because of which she would become unconscious and petitioner would then
at the asking of her husband make physical relations with her.
20. Even the prosecution had not found any material to file a charge
sheet against the Petitioner and had placed him in Column No. 12.
21. Even before this Court the prosecution has failed to establish or
place material, which would raise suspicion against the petitioner of having
committed the offence of Section 120B IPC and Section 328 read with
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Section 376 IPC. There is further no medical evidence to corroborate the
version of the prosecutrix or which would raise to grave suspicion that
petitioner could have committed the alleged offence.
22. In view of the above and on examination of the material collected
during investigation, I am satisfied that there is insufficient material to even
raise suspicion leave alone grave suspicion against the petitioner of having
committed the offence under Section 120B and Section 328 read with
Section 376 IPC.
23. In view of the above, the impugned order dated 21.08.2017 in so far
as it frames a charge against the petitioner under Section 120B and Section
328 read with Section 376 IPC, cannot be sustained and is quashed to the
said extent.
24. Petition is accordingly allowed in the above terms. Petitioner is
discharged.
25. Order dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
MAY 29, 2019
rk
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