From Rapist to Bhabhi !! Rape case filing woman changes her statement completely. One wonders why !!

married woman, mother of two says neighbor gave her NIMBU pani and raped her ! He continued with such rapes later as well !! After police complaint, FIR etc, man is dragged to courts. At the court, during cross examination, she turns hostile and says man called her “Bhabi” and did NOT rape her.

she goes on to say that the complaint was DICTATED by the police !! Hon. Judge Sahib infers that the case was probably instigated by neighbours !!

You are left wondering what did she GET to suddenly give up her case !!! One more RAPE closed, god know what transpired

Case is closed, of course needless to say NO punishment for ablaa / prosecutrix, complainant

Excerpts
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“…Around one year ago prior to filing of present complaint, accused called the prosecutrix at his room and served her lemon water (nimbu paani). Thereafter, accused closed the door of the room and forcibly made physical relationship with her against her will and without her consent. Thereafter, in the month of January, 2015, when husband of prosecutrix was away from his home, accused again forcibly made physical relation with her against her will and without her consent. On 21.06.2015, when the prosecutrix was sleeping with her children on the roof of the said house, accused came there and tried to take her downstairs. …”

“..After completion of investigation, the challan was filed before the learned Metropolitan Magistrate on 04.08.2015. Thereafter, the case was committed to the court of learned District & Sessions Judge, Patiala House Court, ..”

“…In her statement, PW1/prosecutrix stated that accused used to visit her house and called her bhabhi. The accused was abusing in filthy language to her at his own. The accused did not make any forcible physical relationship with her. In her statement recorded u/s 164 Cr.P.C before the learned Magistrate, she stated that accused was abusing in filthy language but she was not sure as to whom accused was abusing. No forceful untoward incident caused upon her by the accused. She also categorically stated that accused did not commit rape upon her…”

In her examination in chief, PW1/prosecutrix has deposed that she went to PS and made handwritten complaint Ex.PW1/A which was dictated by the police officials.

“…it is held that the prosecution has failed to prove its case against the accused person beyond reasonable doubt. Accordingly, accused Gulshan Kumar is acquitted of charge leveled against him…”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Delhi District Court
State vs . Gulshan Kumar on 31 October, 2015
Author: Sh. Devendra Sharma

IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACT COURT
PATIALA HOUSE COURT/NEW DELHI

SC No. 40/15
FIR No. 317/15
PS Naraina
U/s 376/506 IPC

State Vs. Gulshan Kumar
s/o Vijay Prasad
r/o CB-222, Naraina Ringh Road, New Delhi

Unique ID No.
Date of Institution 04.08.2015
Argument heard/order reserved 31.10.2015
Date of judgment 31.10.2015
Final Order Acquitted

JUDGMENT

1. Succinctly, the facts of the case are that for the last five years prior to incident, the prosecutrix ‘S’ were residing in a rented house in the area of Naraina. Accused was also residing in the same building at 4 th floor on rent. He was having friendly terms with the husband of prosecutrix and also used to come to their house. Around one year ago prior to filing of present complaint, accused called the prosecutrix at his room and served her lemon water (nimbu paani). Thereafter, accused closed the door of the room and forcibly made physical relationship with her against her will and without her consent. Thereafter, in the month of January, 2015, when husband of prosecutrix was away from his home, accused again forcibly made physical relation with her against her will and without her consent. On 21.06.2015, when the prosecutrix was sleeping with her children on the roof of the said house, accused came there and tried to take her downstairs. While doing aforesaid wrong acts during the said period, accused also threatened the prosecutrix not to disclose about the incidents to anyone. These were the allegations upon which present FIR was registered against the accused.

2. After completion of investigation, the challan was filed before the learned Metropolitan Magistrate on 04.08.2015. Thereafter, the case was committed to the court of learned District & Sessions Judge, Patiala House Court, New Delhi from where the case was assigned to this court vide order dated 17.08.2015.

3. On 03.09.2015, charge was framed against the accused for the offence punishable u/s 376 and 506 of IPC to which accused pleaded not guilty and claimed trial.

4. In order to substantiate the allegations, recording of evidence started on 01.10.2015. On that date, the prosecution examined the prosecutrix/complainant as PW1. The complainant/prosecutrix/PW1 was the only witness who could prove the prosecution case but she turned hostile and did not support prosecution story on material point. Remaining witnesses were formal in nature and therefore, remaining prosecution evidence was closed. Statement of accused was dispensed with and matter was listed for final arguments.

5. Today, case was listed for final arguments. Final arguments heard on behalf of both the parties. I have also gone through the records.

6. It is argued on behalf of the State that though, the prosecustrix has not supported the prosecution case on some material point ie committing of rape by the accused on the alleged date of incidents, yet her entire testimony cannot be discarded as in the cross examination on behalf of state, the prosecutrix has clearly admitted contents of her complaint Ex.PW1/A against the accused. She also admitted that her statement u/s 164 Cr.P.C Ex.PW1/B was recorded by the learned Magistrate and also identified her signature on the statement Ex.PW1/B. Therefore, accused may be convicted for the alleged offence.

7. On the other hand, learned defence counsel argued that accused has been falsely implicated in this case. The allegations in the FIR are false, fabricated and concocted. In her statement u/s 164 Cr.P.C, prosecutrix has not uttered about the alleged rape. In her evidence before the court, prosecutrix/PW1 has also clearly stated that accused did not make any forcible physical relationship with her nor he committed rape upon her. On these grounds, it is prayed that accused may be acquitted of charges leveled against him.

8. The allegations against the accused are that somewhere in the year 2014, accused called the prosecutrxi who used to reside with her husband and children in the same building, at his room at 4th floor. When she entered the room of the accused, she was served with lemon water. In the meantime, accused closed the door from inside and made physical relationship with her forcibly for the first time. Second time, she was raped in the month of January 2015 when her husband was out of Delhi.

9. Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-

375. Rape. – A man is said to commit “rape” if he –

a) ….

b) ….

c) ….

d) …..

under the circumstances falling under any of the following seven descriptions:-

First. – Against her will.

Secondly. – Without her consent.

Thirdly. – With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. – With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. – With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. – With or without her consent, when she is under eighteen years of age.

Seventhly. – When she is unable to communicate consent.

Explanation 1. – ….

Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

10. In the present case, prosecutrix/PW1 is the only witness who could prove the prosecution case. But she did not support the prosecution case and denied the material allegations. She was cross examined on behalf of the State despite that she did not support the prosecution case. In her statement, PW1/prosecutrix stated that accused used to visit her house and called her bhabhi. The accused was abusing in filthy language to her at his own. The accused did not make any forcible physical relationship with her. In her statement recorded u/s 164 Cr.P.C before the learned Magistrate, she stated that accused was abusing in filthy language but she was not sure as to whom accused was abusing. No forceful untoward incident caused upon her by the accused. She also categorically stated that accused did not commit rape upon her.

11. In her examination in chief, PW1/prosecutrix has deposed that she went to PS and made handwritten complaint Ex.PW1/A which was dictated by the police officials. She also denied the suggestion put by learned Addl. PP that she made the complaint at her own will without any dictation, fear, force and coercion. From bare perusal of her evidence given before the court as PW1 and statement u/s 164 Cr.P.C before the learned Magistrate, are taken together, it appears that present complaint was filed by the complainant/prosecsutrix after being instigated by her neighbours which fact has been disclosed by the prosecutrix in her statement u/s 164 Cr.P.C before the learned Magistrate. Otherwise also, her testimony does not inspire any confidence of commission of offence of sexual assault.

12. In view of the aforesaid discussions and facts and circumstances of the case, it is held that the prosecution has failed to prove its case against the accused person beyond reasonable doubt. Accordingly, accused Gulshan Kumar is acquitted of charge leveled against him.

Accused is directed to furnish fresh bail bond in the sum of Rs.25,000/- in terms of section 437A Cr.P.C. At this stage, fresh bail bonds furnished u/s 437A Cr.P.C furnished and accepted for a period of six months. His earlier bail bond stands cancelled. Surety stands discharged. Original documents, if any, be returned back to the rightful claimant after endorsement cancelled thereupon.

File be consigned to the Record Room after due completion.

(Devendra Kumar Sharma)

ASJ/FTC/Court No.7/PHC Lockup Building/31.10.15

Announced in open court on 31.10.2015.

(One spare copy attached)

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