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Section 511 in The Indian Penal Code
Section 376 in The Indian Penal Code
Section 509 in The Indian Penal Code
Section 354 in The Indian Penal Code
The Code Of Criminal Procedure, 1973

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Delhi District Court
State vs Rakesh Kumar -:: Page 1 Of 15 ::- on 17 November, 2014
Author: Ms. Nivedita Sharma
                                                    -:: 1 ::-



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

Sessions Case Number                                            : 46 of 2014.
Unique Case ID Number                                           : 02401R0121862014.

State                            versus


Mr. Rakesh Kumar
Son of Mr. Babu Lal,
Resident of House No. W-72/155, Gali No. 10,
Tali Walan, Anand Parbat,
New Delhi.

First Information Report Number : 29/2014.
Police Station Anand Parbat
Under section 354/509/376/511 of the Indian Penal Code.

Date of filing of the charge sheet                                       :12.03.2014
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this                          :01.04.2014.
Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on                                                   :17.11.2014.
Date of judgment                                                         : 17.11.2014.

Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
             State is on leave.
             Mr. Ateeq Ahmed, Substitute Additional Public Prosecutor
             for the State.
             Accused Mr.Rakesh Kumar on bail.
             Mr. Vishal Vimal, counsel for the accused.
             Prosecutrix in person.
             Ms. Shubhra Mehndiratta and Ms. Poonam Sharma, counsel
             for Delhi Commission for Women.
************************************************************

Sessions Case Number : 46 of 2014.
Unique Case ID Number : 02401R0121862014
FIR No.29/2014, Police Station Anand Parbat
Under section 354, 509, 376, 511 of the Indian Penal Code.
State versus Rakesh Kumar                                                   -:: Page 1 of 15 ::-
                                                     -:: 2 ::-



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. The charge sheet has been filed against the accused, Mr. Rakesh Kumar, by Police Station Anand Parbat, Delhi for the offence under sections 354, 509, 376 and 511 of the Indian Penal Code (hereinafter re- ferred to as the IPC) on the allegations that on 19.01.2014 at about 5.30 pm at military area, vacant forest, near Ramjas Day Boarding Nursery School, Anand Parbat, Delhi, he along with his associate (name not known and not arrested ) in furtherance of his common intention attempted to rape the prosecutrix (name mentioned in file but withheld to protect her identity).

2. After completion of the investigation, the charge sheet against accused Mr.Rakesh Kumar was filed before the Court of the learned Metropolitan Magistrate on 12.03.2014 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 01.04.2014.

3. After hearing arguments, charge for offence under sections 376 and 511 of the IPC was framed against accused Mr. Rakesh Kumar vide order dated 28.04.2014 to which he pleaded not guilty and claimed trial.

Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                       -:: Page 2 of 15 ::-
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4. In order to prove its case, the prosecution has examined the prosecutrix as PW1; Mr. Ashok Kumar, as PW2; Mr. Sudama Pandey as PW3; HC Lokender Kumar, duty officer who had recorded the formal FIR in the present case as PW3; Ct. Kuldeep, witness of investigation as PW4; ASI Ram Dhari, who had prepared challan, as PW5; Ms. Vandana, learned Metropolitan Magistrate, who recorded the statement of prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.)

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 she has been working in the factory of one Mr. Nasir Ahmed in gali no.10 near Ramjas Day Boarding School, Anand Parbat, Delhi for the last about 15 years. On 19.01.2014 when she was working in the factory, she felt feverish during lunch time, she had medicines and after having her lunch she took rest in the factory for some time. At about 5.30 pm when she felt better, she told her employers that she wanted to leave the factory as she was not feeling Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                       -:: Page 3 of 15 ::-
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well. Her employer asked her to work for another two hours more. At about 5.30 pm, she went behind the factory to pass urine and after urinating in the open area, as soon as she tried to get up she started shivering. It was becoming dark. She was scared and felt that some one had grabbed her (mujhe laga kisi ne pakad liya). She started screaming and in the mean time 3-4 boys came there, who caught hold of her asking her what happened to her. She did not know what happened thereafter. Police came there. She was taken to Police Station Anand Parbat by the police. In the Police Station, the police conducted enquiries from her and she narrated the incident to the police. From the Police Station, she was taken to Lady Harding Hospital, where she was medically examined. Upon enquiry by the doctor, she told her that nothing wrong had happened with her. She told the doctor that she had not sustained any injuries on her body. Doctor asked her, if she was scared from any one and she replied that she was not scared of any one. She was produced before learned Metropolitan Magistrate by the police, where her statement was recorded by the learned Metropolitan Magistrate. Whatever she had stated today in the Court, same was narrated by her to the learned Metropolitan Magistrate. She did not want to say anything else in this case. She did not know any person by the name of Rakesh Kumar. She has never seen the man who is sitting inside the Court room, whose name has been told to her to be Rakesh Kumar. Accused Rakesh Kumar present in the Court has not committed any offence against her. She admitted that she was produced before Court of learned Metropolitan Magistrate who recorded her statement (Ex.PW1/A1). She had given the statement (Ex.PW1/A1) before learned Metropolitan Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                             -:: Page 4 of 15 ::-
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Magistrate at the instance of her well wisher due to some misunderstanding. She again said that no one has committed any offence against her and she did not know the accused, who is present in the Court. Prosecutrix again said that no offence was committed against her and accused Rakesh, who is present in the Court today has not attempted to rape her. This statement under section 164 of the Cr.P.C (Ex.PW1/A1) was made under a misunderstanding and due to wrong advise by her well wisher. She admitted that her statement recorded by the police (Ex.PW1/B). She again said that no offence was committed against her and accused Rakesh, who is present in the Court today has not attempted to rape her. This statement (Ex.PW1/B) was made under a misunderstanding and due to wrong advise by her well wisher. She had put my thumb impression on some documents in the Police Station but she did not know their contents. She stated that accused was not arrested in her presence nor accused had made any confession about the offence in her presence. She admitted that she was taken by the police to Lady Harding Medical College where she had refused my gynecological examination. As she was not raped nor any attempt to rape was made against her, she had refused her gynecological examination. In her MLC (Ex.PW1/C), she had refused my gynecological examination.

7. As the prosecutrix was hostile and had resiled from her earlier statement, the Substitute Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth.

Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                       -:: Page 5 of 15 ::-
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8. In her cross examination by the Substitute Additional Public Prosecutor, the prosecutrix has denied the suggestion that she had stated to the police in her statement that on 19.01.2014 at about 5.30pm when she had gone to ease her self in the jungle behind the factory of Mr. Nasir Ahmed, where she saw two boys due to which she went further into the jungle. She was confronted with the statement Ex.PW1/B from portion B to B, where it is so recorded. She denied the suggestion that she had stated to the police in her statement that one of the two boys came to her me and caught hold of her, accused pressed her mouth and neck and started abusing her. When she shouted for help some people in the factory, who were on the roof saw her and came towards us on which both the boys tried to escape and they were followed by the factory workers and apprehended one of the two boys. In the apprehension of one of the boys, his clothes were torn and her nose pin had also fallen down some where. She was confronted with the statement Ex.PW1/B from portion C to C, where it is so recorded. She further denied the suggestion that she had stated to the police in her statement that some one had called the police at 100 number and the police arrived there and Lady Ct. Savita recorded her statement. The name of the boy who had caught her was disclosed as Rakesh Kumar and he was handed over to the police. She requested the police for taking legal action against Rakesh Kumar. She was confronted with the statement Ex.PW1/B from portion D to D, where it is so recorded. She stated that she has not made any such statement to the police. She did not know the accused who is present in the Court and he has not committed any offence against her. She stated that she had not made the statement under section Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                       -:: Page 6 of 15 ::-
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161 Cr.P.C dated 19.01.2014 (Mark A). She denied the suggestion that the accused was arrested in her presence and he had made his disclosure statement. She further denied the suggestion that she had put her thumb impression on the arrest memo (Ex.PW4/A), personal search memo (Ex.PW4/B) and disclosure statement (Ex.PW4/C). She voluntarily stated that she had put her thumb impression on some documents in the Police Station but she is not aware about the contents of the documents. These documents were not read over to her before her thumb impression were taken on the same. She admitted that she had stated to the learned Metropolitan Magistrate in her statement that on 19.01.2014 at about 5.30pm, she had gone to ease myself in the jungle behind the Laltain factory, where she was working where she saw two boys and went further into jungle. One of the two boys caught her from behind and pressed her mouth and neck. Both the boys started saying wrong things to her and abusing her. They tried to tear her clothes and raped her. These facts are mentioned in the statement Ex.PW1/A1 from portion B to B. She voluntarily stated that she had made the statement at the instance of her well wisher and due to some misunderstanding. She admitted that she had stated to the learned Metropolitan Magistrate in her statement that she had raised alarm and a crowd gathered there. The factory workers had chased the two boys as they were trying to escape. Her nose pin, chain and Rs. 780/- had fallen down some where and she had doubt that two boys had the same and they had threatened to kill her. These facts are mentioned in the statement Ex.PW1/A1 from portion C to C. She voluntarily stated that she had made the statement at the instance of her well wisher and due to Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                       -:: Page 7 of 15 ::-
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some misunderstanding. She denied the suggestion that she had told the true and correct facts in Ex.PW1/A1 as well as Ex.PW1/B. She denied the suggestion that she had made the statement voluntarily and not at the instance of any well wisher nor due to any misunderstanding. She denied the suggestion that on 19.01.2014 at about 5.30pm at Military area vacant forest, near Ramjas Day Boarding Nursery School, Anand Parbat, Delhi, accused Rakesh Kumar along with his associate attempted to rape her. She denied the suggestion that she has been won over by the accused, she is deposing falsely in order to save the accused.

9. In her cross examination by the accused, the prosecutrix has admitted that the accused is innocent and has not committed any offence against her.

10. PW2, Mr. Ashok Kumar and PW3, Mr.Sudama Pandey, who are the eye witnesses and who had apprehended accused Rakesh Kumar were hostile and nothing material came forth in their lengthy cross examination by the State. Both of them denied witnessing anything regarding this case and deposed that enquiry was not made from them. Both also deposed that they had never seen the accused earlier.

11. PW 3, HC Lokesh Kumar ,duty officer, who had recorded the DD No. 24 A (Ex.PW3/A) and registered FIR No. 29 of 2014 (Ex. PW3/B) and made endorsement on rukka (Ex.PW3/C) and certificate under section 65 B of the Evidence Act (Ex.PW3/D).

Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                       -:: Page 8 of 15 ::-
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12. PW4, Ct. Kuldeep deposed that on 19.01.2014, he had joined the investigation of the present case on the direction of IO SI Kamal. In the evening he had gone with the IO in front of Ram jas Day Boarding Nursery School, Anand Parbat, where they met the prosecutrix and many more persons who were gathered there. The crowd had already apprehended one man namely Mr. Rakesh. Ms. Phoolwati was shouting and saying that accused Rakesh had abused her and has teased her (uske sath gaali galoch ki aur ched chaad ki). SI Kamal had phoned in the PS Anand Parbat requesting for a lady police official to be sent at the spot and on his request WCt Savita reached the spot. WCT Savita recorded the statement of prosecutrix and handed over to SI Kamal, who was standing with him and the accused at a distance of 10-15 feet. Accused was arrested vide arrest memo (Ex.PW4/A) and his personal search was conducted vide personal search memo (Ex.PW4/B). The accused confessed his crime vide his disclosure statement (Ex.PW4/C). The IO directed WCt Savita to take the prosecutrix to Lady Harding Medical College and Smt. S.K.Hospital for her medical examination. On the directions of IO, he had taken the accused to to Lady Harding Medical College and Smt. S.K.Hospital for his medical examination and they were accompanied by the IO. The accused was taken to PS Patel Nagar and lodged in the lock up as PS Anand Parbat does not have any lock up. His statement was recorded by the IO and thereafter, he was relieved from the investigation

13. He has been cross examined on behalf of accused and in his cross examination he admitted that he do not remember when he had Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                       -:: Page 9 of 15 ::-
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reached the spot. He and SI Kamal had gone to the spot on the motor cycle of the IO. There were about 5-7 persons gathered at the spot besides the prosecutrix and the accused. He had personally not recorded the statement of any person. In his presence the IO had recorded the statements of one Mr.Ashok and another person whose name he did not remember today. They remained at the spot for about 2-2 ½ hours. He denied the suggestion that the accused was not present at the spot nor he had been apprehended by the public persons. He denied the suggestion that the accused had not made any disclosure statement. He denied the suggestion that the accused was made to sign on blank documents which were later converted into evidence in the present case. He denied the suggestion that he did not join the investigation of the present case and have only put his signatures on the documents at the instance of IO. He denied the suggestion that he is deposing falsely.

14. PW5, ASI Ram Dhari has deposed that on 15.02.2014 he was handed over the present file for further investigation by the MHC(R) on the direction of SHO as the IO SI Kamal had proceeded on leave. Once he had appeared before the Court of learned Metropolitan Magistrate for extension of the JC remand of the accused Rakesh Kumar. He had prepared the challan and had taken it to the prosecution department to checking. The prosecution had opined that sections 376/511 IPC should be incorporated and hehad complied with the same. Thereafter, the file was assigned to a lady IO ASI Kiran Sethi for further investigation.

15. PW6, Ms. Vandana, learned Metropolitan Magistrate-01, Tis Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                        -:: Page 10 of 15 ::-
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Hazari Courts, West District, Delhi has recorded the statement of prosecutrix (Ex.PW1/A1). Application for recording the statement of prosecturix (Ex.PW6/A) and application of the IO for providing the copy of the statement (Ex.PW6/B).

16. The prosecutrix, PW1, and the eye witnesses Mr. Ashok Kumar and Mr. Sudama Pandey, PWs 2 and 3, have not deposed an iota of evidence of prosecutrix being attempted to be raped by accused Mr.Rakesh Kumar. They have not even mentioned the word "rape" by accused Mr. Rakesh Kumar in their examination in chief nor has deposed anything incriminating against him. In fact, they have not identified the accused nor attributed any criminal role to him.

17. In the circumstances, as PW1, the prosecutrix, PW2, Mr. Ashok Kumar and PW3, Mr.Sudama Pandey, who are the star witnesses have turned hostile and have 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 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 has not supported the prosecution case and is hostile.

18. Statement under section 313 of the Cr.P.C of the accused is dispensed with as there is nothing incriminating against him when the Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                        -:: Page 11 of 15 ::-
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prosecutrix and the eye witnesses are hostile and nothing material has come forth in ther cross examination by the prosecution.

19. 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.

20. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, Mr. Ashok Kumar, PW2 and Mr. Sudama Pandey, PW3, who happen to be the material witnesses, I am of the considered view that the case of the prosecution 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."

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

22. Consequently, no inference can be drawn that accused is guilty of attempting to rape the prosecutrix. There is no material on record to suggest that the prosecutrix was ever raped by accused Mr. Rakesh Kumar. No case is made out against the accused Mr.Rakesh Kumar as there is no Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                        -:: Page 12 of 15 ::-
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incriminating evidence against him. In fact, the prosecutrix has deposed that she dis not know any person by the name of Rakesh Kumar, nor has identified the accused nor deposed that he has committed any offence against her. Evidence of PWs 2 and 3 is also similar as they too are hostile.

23. 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 she dis not know any person by the name of Rakesh Kumar and that the accused has not committed any offence against her. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.

24. Consequently, no inference can be drawn that accused Mr. Rakesh Kumar is guilty of the charged offences under section 376 and 511 IPC There is no material on record to show that on 19.01.2014 at about 5.30 pm at military area vacant forest, near Ramjas Day Boarding Nursery School, Anand Parbat, Delhi, he along with his associate (name not known and not arrested) in furtherance of his common intention attempted to rape the prosecutrix.

25. From the above discussion, it is clear that the case of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offence of attempt to rape. The evidence of the prosecutrix as well as the eye witnesses makes it highly Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                        -:: Page 13 of 15 ::-
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improbable that such an incident ever took place. In fact, the prosecutrix has deposed that she dis not know any person by the name of Rakesh Kumar and that the accused has not committed any offence against her.

26. 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 accused Mr.Rakesh Kumar due to complete lack of evidence for the offence under section 376 and 511 IPC .

27. Consequently, the accused, Mr. Rakesh Kumar is hereby acquitted of the charge for the offence under section 376 and 511 IPC .

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

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

30. 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 or where the prosecutrix is hostile, as in the present case, 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 Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

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reporting in the media.


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

32. 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 17th day of November, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

************************************************************* Sessions Case Number : 46 of 2014.

Unique Case ID Number : 02401R0121862014 FIR No.29/2014, Police Station Anand Parbat Under section 354, 509, 376, 511 of the Indian Penal Code.

State versus Rakesh Kumar                                                       -:: Page 15 of 15 ::-