Category Archives: Delhi sessions court

Mere photos of husband’s shop NOT enough 2 prove income or ownership. Wife gets just 1200 p.m. from DV case !

A wife who lies in her affidavit and hides her professional qualifications tries to say that husband is earning a huge amount of money by showing some photographs of his automobile repair shop. the court dismisses her claims and says a mere photo is not proof of ownership and where wife has not proven husband’s income, court has to go with the admitted income of the husband !

Specifically, the court orders “… At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent….”

Criminal Appeal No.33/15

IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI

Criminal Appeal No. : 33/2015
Under Section : 12 of Protection of Women From Domestic Violence Act, 2005.
Police Station : M.S. Park
Case No. : V-128/14
Unique I.D. No. : 02402R0312462015

In the matter of :-

Smt. MANJU
D/o. Sh. Shiv Lal,
W/o. Sh. Gaurav,
R/o. H.No.D-198, Gali No.8, Jagatpuri,
Mandoli Road, Shahdara, Delhi-110032. …………..Appellant

VERSUS

Sh. GAURAV
S/o. Sh. Harpal Singh,
R/o. H.No.128, Shastri Nagar,
District Ghaziabad, U.P. …………..Respondent

Date of Institution : 03.09.2015
Date of receiving the case in this court : 04.09.2015
Date of reserving order : 22.09.2015
Date of pronouncement : 05.10.2015
Decision : Appeal is dismissed.

JUDGMENT

  1. This is an appeal preferred against the order dated 14.08.2015, passed by the trial court in a case titled as Smt. Manju v. Gaurav & Ors., bearing case no.V-128/14, filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005. Vide impugned order respondent was directed to pay a sum of Rs. 1,200/- per month in favour of appellant from the date of filing of present petition till pendency of petition as interim maintenance and accordingly application under Section 23 of the Act was decided.
  2. Briefly stated, the relevant facts giving rise to this appeal are that Complainant/appellant herein filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against her husband and her in- laws. The appellant made several allegations against her husband and in-laws regarding demand of dowry, coupled with threats, harassment and abusing at her matrimonial house. She also alleged that she had been illegally, unauthorizedly and unlawfully forced by her husband and in-laws to leave her shared household/matrimonial home i.e. H.No.128, Shastri Nagar, District Ghaziabad, U.P and she was thrown out of her house and was compelled to reside at her parental house. Appellant prayed for several reliefs including payment of monthly maintenance by her husband.

  3. Appellant filed application under Section 23 of the Act. Respondents contested the main application as well as the application under Section 23 of the Act. Both parties filed their affidavit in respect of their income and other particulars, as per directions given by High Court of Delhi in the case of Puneet Kaur v. Inderjit Singh Sawhney, MANU/DE/7166/2011. Trial court vide impugned order decided the application under Section 23 of the Act.

  4. Being aggrieved of the impugned order, appellant has preferred this appeal on the following grounds :- “…That the trial court did not appreciate that respondent had not filed the proper affidavit and he had concealed his income in his affidavit as well as written statement. That the respondent is running his own work shop in the name and style of M/s. Durga at ITI Shastri Nagar, Ghaziabad, U.P for repairing motorcycles of various companies and is also having four and five labours. Furthermore, respondent also repairs motorcycles on contract basis in various Government Department at Ghaziabad and he is earning Rs. 1,00,000/- per month. Respondent is also maintaining four wheeler vehicle bearing registration no.UP-14CD-2389. ..” That the trial court did not appreciate that the respondent did not disclose his place of work in his written statement and he simply mentioned that he was working as a tube repairing worker.

  5. On the other hand, respondent contested this appeal and filed his reply thereby supporting the order passed by the trial court. He denied the facts relating to allegations made by appellant against him as well as his other family members. Respondent further pleaded that appellant herself is running coaching center of stitching as well as fashion designing and she is earning Rs. 10-15,000/- per month. He further pleaded that appellant is well educated lady and has done diploma in cutting and tailoring as well as diploma in basic computer and diploma of fashion designing. Respondent pleaded that appellant is not entitled for maintenance because she is having sufficient source of income and is well qualified. Respondent filed photograph of diploma certificates in the name of appellant.

  6. During the course of argument, ld. counsel for appellant referred to the photographs placed by appellant in the trial court record, showing one Wagon-R car and photo of Durga Auto services. Ld. counsel further referred to the trial court record to submit that respondent had suppressed his income and thereafter, he was directed to file fresh affidavit, wherein he disclosed his income as Rs.3,000-4,000/- per month. Ld. counsel argued that the amount of Rs.1,200/- is not sufficient to meet the expenses of the appellant and therefore, the present appeal has been filed.

  7. On the other hand, ld. counsel for respondent argued on the lines of his reply and submitted that even appellant had suppressed her professional qualification in the first affidavit. He further submitted that though appellant herself is earning, but she concealed this fact. It was also argued that appellant had suppressed about her inability to conceive since the time of her marriage and in fact appellant had caused mental trauma for the respondent.

    8. In this appeal, this court is concerned about the legality of the impugned order, vide which the trial court has fixed an interim maintenance in favour of the appellant. The challenge is to the amount of interim maintenance. On perusal of the trial court record, I find that though appellant claimed that respondent had been earning Rs.1 lac per month apart from rental income of Rs.10,000/- per month, but except for placing photograph of Durga Auto Services and one motorcar, no supporting material was placed in support of such contentions. Respondent has pleaded that he is working as auto repair mechanic in the work shop of other person and he does not earn more than Rs.4,000-5,000/- per month. As far as concealing his income in his first affidavit is concerned, I do find that in the initial affidavit, respondent had shown his salary as nil. Thereafter, he filed amended/fresh affidavit wherein he disclosed monthly income of Rs.3,000-4,000/-. However, this tendency of concealing a fact is not limited to the respondent only. I find that even appellant had concealed her professional qualification in the first affidavit filed by her, wherein she mentioned professional qualification as nil. Later on, she also filed another affidavit thereby mentioning her professional qualifications as well. Thus, the tendency to conceal any fact is common for both these parties and I hope that the trial court shall take due care of such tendency of both the parties, during trial of the case.

  8. At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent. Such amount of interim maintenance can be modified, after having sufficient evidence on the record regarding merits of the case as well as the income of the respondent. At this stage, I do not find any worth argument or material placed on the record to interfere with the finding arrived at by the trial court in respect of the quantum of interim maintenance. Therefore, appeal is dismissed.

  9. Copy of this judgment be sent to the trial court, to be placed in the file of case no.V-128/14.

File be consigned to record room, as per rules.

Announced in the open court today on 05.10.2015

(PULASTYA PRAMACHALA)

Additional Sessions Judge (Shahdara)

Karkardooma Courts, Delhi

NIL Interim maintenance to employed woman. No residence as well. DV case. Delhi HC

Woman employed in Indian Airlines and also living separately on her own accord file DV case seeking direction for accommodation and Rs 15000 p.m. as interim maintenance. Lower courts deny maintenance. She appeals to HC and Hon Dhingra dismisses the case


IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.MC No. 3325/2010

KAVERI                                                           ….. Petitioner
Through Ms. Uma, Advocate

versus

Neel Sagar & Anr.                                                 ….. Respondents

CORAM: JUSTICE SHIV NARAYAN DHINGRA

O R D E R (ORAL)

25.10.2010

By the present petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. the petitioner has assailed an order dated 25th May, 2010 whereby appeal filed by the petitioner against an order dated 28th August, 2009 of learned MM was dismissed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The relevant facts show that the petitioner had filed an application under Section 23 of Protection of Women from Domestic Violence Act seeking restraint order against the respondents and seeking direction to provide her residential accommodation and to pay sum of Rs.15000/- pm as interim maintenance. The respondents in this case were mother and brothers of the petitioner. The petitioner is an employed woman, has been working with Indian Airlines in store department and living separately from her brothers and mother admittedly since 2002; although the respondents alleged that she was living separately since 1999. Both the Courts below had come to the conclusion that interim relief either of separate residence or claiming amount from brothers or mother could not be granted in her favour under the Protection of Women from Domestic Violence Act since it was not the claim of the petitioner that she was not able to maintain herself rather she had claimed she had spent Rs.1 lac in construction of first floor of the house where respondents no. 1 & 2 were residing. The Courts below came to the conclusion that petitioner being employed and living separate and being a major having her own independent source of income was not entitled to relief. The facts that the petitioner is employed and has been living separate and leading an independent life are undisputed facts. I find no ground to interfere with the orders of the Courts below in petition under Article 227 of the Constitution of India. The petition is hereby dismissed.

SHIV NARAYAN DHINGRA,J

OCTOBER 25, 2010

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*****************************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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


DIL visiting inlaws fewdays is NOT in dom relation wid them, NO DV! 498a, DV cocktail @ Delhi Sessions court

 

A young woman, a daughter in law, is invited to a party thrown by the father in law retiring from service. To attend this party, she stays at the in father in law’s place a few days. But some domestic quarrel develops between herself and her husband. She files Domestic violence case on four of in laws saying it all happened when she was at their place !!

The court appreciates the facts and says (a) this DIL is not in domestic relationship with the in laws and visiting them a few days does not become domestic relationship (b) The is a distinction between an offence or violence between people in a domestic relationship and those outside. For other alleged quarrels / fights / offences a separate 498a etc FIR has been lodged based on wife’s complaint and so that can’t be DV!! Quoting cornerstone cases, The Hon court discharges all the in laws !!

Excerpts :

“…….It has been further held in the said judgment that where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application u/S 12 of the D.V. Act on the basis of domestic relationship. It is the case of the respondent herself that after their marriage, they shifted to Vikas Puri and, thereafter, to Rohini. There is nothing in the application u/s 12 of the D. V Act to suggest that the respondent and her husband had been continuously living in the shared household as a matter of right at Janak Puri……”

” …….. 9. So far as the incident that occurred on 2.7.2014 is concerned, a separate FIR has been registered under Sections 324/498A/34 IPC at PS Janak Puri but the said incident cannot be covered under the D.V. Act. There is a distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. For taking this view I am supported with the judgment Vijay Verma (supra)…..”

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Delhi District Court

Satish Solanki & Ors vs Sujata on 22 December, 2015

Author: Sh. Parveen Kumar

IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBI­III, ROHINI COURTS, DELHI

Criminal Appeal No.70/15

Satish Solanki & Ors. ……..Appellants
vs.
Sujata ……..Respondent

File received on assignment on : 03.10.2015
Arguments heard on : 15.12.2015
Judgment announced on : 22.12.2015

JUDGMENT:

1. This is an appeal against the order dated 2.7.2015 passed by Ld. MM, Mahila Court North­West, Rohini Courts, Delhi on application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short ‘D.V. Act’) whereby appellants were summoned to appear before the trial court.

2. Briefly stating, the facts relevant for the disposal of the present criminal appeal are that respondent was married to Vikas Solanki on 17.7.2013 at Delhi according to Hindu rites and ceremonies. Both were divorcee before their marriage. After marriage, respondent and her husband­ Vikas Solanki lived at Flat No. 1094, 9th Floor, SBI Enclave, Vikas Puri, New Delhi. On 3.11.2013, they shifted to House No. H­19/129, Sector­7, Rohini, Delhi and lived there upto 13.3.2014. Thereafter, the respondent left the company of her husband from their house at Rohini and stayed at her parental house. In May 2014, respondent again joined the company of her husband and stayed with him till 2nd July, 2014. It is averred that since 3.7.2014, respondent has been living at her parents house. On these allegations, application u/s 12 of D.V. Act was filed by respondent against her husband and appellants herein.

3. Appellant no. 1 is the father­in­law, appellant no. 2 is the mother­in­law, appellant no. 3 is the brother­in­law (Devar) and appellant no. 4 is the sister­in­law (Devarani) of the respondent. All were/are residents of B­1/152, Janak Puri, New Delhi.

4. I have heard Ch. Ram Kishan, Ld. Counsel for the appellants and Sh. D. K. Ahlwat, Ld. Counsel for the respondent. Ld. Counsel for the appellants has contended that appellant no. 1 has retired on superannuation as Supdt. from Govt. of NCT of Delhi on 30.6.2014 and on the eve of his retirement, a party was arranged at Janak Puri, New Delhi in the night of 30.6.2014. The said party was attended by respondent, her husband and others. The respondent and her husband were called from their residence at Rohini a few days before the day of party for helping in making arrangements. In the night of 2.7.2014, some domestic quarrel took placed between respondent and her husband whereupon she visited the Police Station Janak Puri on 3.7.2014 at about 6.00 PM and lodged a complaint. On her said complaint, FIR no. 748/2014 under Section 324/498A/34 IPC was registered. According to Ld. Counsel, only the violence committed in the shared household is covered under the provisions of the D.V. Act. The house at Janak Puri, a self acquired property of the father of appellant no. 1, cannot be considered a shared household as respondent and her husband were living separately in Vikas Puri and Rohini. They have come to the house of appellant no. 1 at Janak Puri on 30.6.2014 to attend the party thrown by him and stayed there for few days. Secondly, it is contended that the alleged incident that occurred on 2.7.2014 cannot be treated as an incident of domestic violence as separate FIR has been lodged for the said incident. In support of his contentions Ld. Counsel has relied upon judgments­S. R. Batra vs. Taruna Batra, 2007 (3) SCC 169; Vijay Verma vs. State, 2010 (118) DRJ 520; Sangeeta vs. Om Parkash, 2015 (3) JCC 1896; Preeti Gupta vs. State, 2010 (4) Crimes 19 (SC); Pushpendu vs. State, 2015 (2) JCC 1359 and Ashish Dixit vs. State, 2013 Crl. LJ 1178.

6. On the other hand, Ld. Counsel for the respondent has contended that there is no infirmity in the order passed by the trial court.

7. I have gone through the record.

8. Domestic relationship is defined under section 2 (f) of the D.V. Act. Domestic relationship arises in respect of an aggrieved person if the aggrieved person (respondent) had lived together with the appellants in a shared household. This living together can be either soon before filing of petition, or ‘at any point of time’. The phrase ‘at any point of time’ under the D.V. Act has been defined in judgment Vijay Verma (supra) wherein it has been held that it only means where an aggrieved person has been continuously living in a shared household as a matter of right. It has been further held in the said judgment that where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application u/S 12 of the D.V. Act on the basis of domestic relationship. It is the case of the respondent herself that after their marriage, they shifted to Vikas Puri and, thereafter, to Rohini. There is nothing in the application u/s 12 of the D. V Act to suggest that the respondent and her husband had been continuously living in the shared household as a matter of right at Janak Puri. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household.

9. So far as the incident that occurred on 2.7.2014 is concerned, a separate FIR has been registered under Sections 324/498A/34 IPC at PS Janak Puri but the said incident cannot be covered under the D.V. Act. There is a distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. For taking this view I am supported with the judgment Vijay Verma (supra).

10. Considering the facts and circumstances of this case, I am of the opinion that summoning of the appellants on an application u/s 12 of the D.V. Act filed by the respondent was not justified. Thus, the impugned order passed by the trial court is set aside. Appellants are discharged. The criminal appeal stands disposed of. Trial court record be sent back with a copy of the order and appeal file be consigned to record room.

Announced in open (Praveen Kumar) court today on 22.12.2015.

Special Judge (PC Act),
CBI­III, Rohini Courts, Delhi.

 

Hang the Rapists !! How a failed marriage proposal becomes rape and gets dismissed at court !! 

* Rape is a heinous crime. Rape is one of the MOST detestable things a human being could do to another human being. A rapist, be it man or woman, has to be punished severely.
* However of late there are MANY false rape claims coming up, which waste time and police effort, which makes us doubt the rape statistic being bandied about cities like Delhi and countries like India.
* Here is one such case. A young man is accused of raping. It turns out (under the watchful court’s scrutiny) that this was a failed marriage that was turned into a rape The prosecutrix claims that the police did NOT file any case for approx 9 months after the incident !!
* The court finds that the whole case is fake ! For the sake of repetition it has still to be kept in mind that in none of the documents prepared by the prosecutrix there is no mention of any rape allegations of rape.
* the court says “….On scrutinizing the testimony of prosecutrix it can be seen that she went to attend the nature’s call only at a walking distance of about 5 minutes from her jhuggi. As per her deposition that place is not an isolated place and other jhuggi dwellers used to go there for attending call of nature. Prosecutrix admits that her clothes were not torn when accused forcibly took her behind the bushes nor she received any injury. Prosecutrix admits that she does not raise an alarm at the time of incident….”
“…It is evident from the testimony of the family members of the prosecutrix that the complaint case was filed against the accused only when the marriage between the accused and prosecutrix did not materialize. Therefore, the prosecution has miserably failed to explain the delay in registration of FIR in the matter…..”
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The accused boy has been arrested. We do NOT know how long he was incarcerated for a crime he DID NOT commit. God save us all
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*****************************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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IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI

In the matter of:-

S. C. No. 48/14
FIR No. 337/12
Police Station S.P. Badli
Under Section 376/506 IPC
ID No. 02404R0-70412013

State

Versus

Pardeep Shah
S/o Sh. Lal Mohar Shah,
R/o N-44/214, Gali No.6,
Sanjay Colony, S.P. Badli, Delhi. ……Accused

Date of institution 23.04.2013
Judgment reserved on 09.10.2015
Judgment Pronounced on 30.10.2015
Decision Acquitted

JUDGMENT

1. Accused is facing trial on allegations that on 13.12.2011 at about 8:30pm, he committed rape upon prosecutrix ‘R’ on knife point and threatened to kill her.

2. FIR was registered consequent to a complaint case filed by the prosecutrix wherein she alleged that on 13.12.2011 at about 8:30 pm when she was was going to attend nature’s call near ganda nala, accused Pradeep suddenly caught hold of her from behind and put a knife on her. He threatened the prosecutrix not to raise an alarm and after that without her consent he committed rape on her. After committing rape, accused threatened her that in case, she disclose the incident to anyone, he would kill her entire family. After the incident, prosecutrix wept whole night and disclosed the incident to her sister in law (bhabhi) when she asked her for about the reason for weeping. On 13.03.2012, prosecutrix made a complaint to police station SP Badli but no action was taken. It is further alleged that accused gave a false allurement of marriage to prosecutrix and falsely executed affidavit at Tis Hazari Courts.

3. On the basis of the FIR against the accused, the accused was arrested and was charge-sheeted in the present case. He was charged for the offence punishable u/s 376/506 IPC to which he pleaded not guilty and claimed trial.

4. In all prosecution has examined 15 witnesses.

5. PW1 Dr Vijay Dhankar proved MLC of the accused as Ex. PW1/A where in, it is opined that there was nothing to suggest that he was incapable of performing intercourse.

6. PW2 HC Ram Singh proved the FIR and his endorsement on the rukka as Ex. PW2/A & B.

7. PW3 SI Ajay Kumar, recorded the statement of the prosecutrix as Ex PW3/A and prepared rukka as Ex PW3/B.

8. PW4 Dr Richa Gupta proved the medical examination of the prosecutrix vide MLC Ex. PW4/A.

9. PW5 HC Devender proved the deposit of the case property in the Malkhana as per entries as Ex. PW5/A & B.

10. PW6 Ct. Shipra collected the exhibits of the prosecutrix after her medical examination which was seized by the IO from her vide seizure memo Ex. PW6/A.

11. PW7 Ct Satinder proved the arrest of the accused and his personal search vide memo Ex. PW7/A & B.

12. PW8 Sh Sandeep Gupta, Ld MM, proved statement of the prosecutrix recorded u/s 164 Cr P C as Ex PW8/A.

13. PW9 is the prosecutrix. She deposed that on 13.12.2011 at about 8.30pm, she went to answer the nature’s call behind a Nala. In the meantime, Pardeep, who was residing near their house, came and held her and put a knife on her neck. Accused threatened that in case, prosecutrix would raise alarm, he would kill her. Prosecutrix became scared. Accused forcibly took prosecutrix behind the bushes and committed rape upon her. He again threatened her that, if prosecutrix disclose this fact to anybody, he would kill her. Prosecutrix started weeping and she went to the house of her bhabhi Urmila. She did not disclose to anyone about this fact including her mausi due to fear. After about three months, accused asked her to accompany him at the same place. Prosecutrix started weeping. Her Bhabhi inquired from the prosecutrix and then she told her about the act of rape committed by accused and about threats given by him. Then Bhabhi of the prosecutrix disclosed the above fact to her mausi. Her Mausi talked to the family members of accused but they did not pay any heed to the same. Then her Mausi called the police. But police did not take any action against accused as accused stated that, he would marry prosecutrix. After some Judgment 5 of 18 SC No: 48/14 State Vs. Pardeep Shah time accused initiated the proceedings for their court marriage, but it did not materialize because accused had shown his age higher than his actual age. Thereafter, Mausi of the prosecutrix made a complaint before the court. Statement of the prosecutrix Ex.PW3/A was recorded by the police. Police got her medically examined. Her statement Ex PW8/A was got recorded before a Judge.

She also deposed that two affidavits Ex.PW9/C & D were executed by accused showing his intention to marry her, but the said affidavits mentioned his wrong date of birth. Prosecutrix also executed one affidavit Ex.PW9/E, showing her intention to marry accused. Her brother Prabhu Shah and Deepak Kumar (brother of Pradeep) executed a deed stating that accused would marry her after two/three months.

14. PW10 is Mausi of the prosecutrix. She deposed that the prosecutrix was residing with her since 2009, as her parents had already expired. In the year 2012, the prosecutrix went to attend the nature’s call and when she came back after sometime, prosecutrix told her that accused had committed rape upon her on knife point. She along with the Judgment 6 of 18 SC No: 48/14 State Vs. Pardeep Shah prosecutrix went to the house of accused to talk to his parents but they did not give any response. Thereafter they informed the matter to the police. Police came there, but it did not take any action. Accused agreed to marry the prosecutrix and a written agreement was also executed by the elder brother of accused namely Deepak Kumar. On 19.04.2012, two affidavits were also executed in the Court with regard to the marriage of accused and the prosecutrix. But subsequently accused refused to marry the prosecutrix. She deposed that at the time of executing the documents the prosecutrix was about 18 years but the age of accused was shown more than that of his actual age.

15. PW11 is elder brother of the prosecutrix. He deposed that after the death of his parents the prosecutrix started living in the house of their Mausi Parvati (PW10). The prosecutrix stated to his bhabhi about the sexual assault upon her by accused. Thereafter, he along with the prosecutrix and PW10 went to the house of accused but the parents of accused could not say anything to him. Then PW10 called the police and after arrival of the police, the elder brother of accused compromised the matter and a written agreement took place that accused will marry the prosecutrix when accused would attain the age of majority. On 19.04.2012 two affidavits were also executed in this regard. But subsequently accused refused to marry the prosecutrix.

16. PW12 is Babhi of the prosecutrix. She deposed that during March, 2012 she found the prosecutrix to be perturbed and she was not taking any interest in household work. When she inquired from the prosecutrix about reason for doing so, the prosecutrix informed her that accused has raped her on knife point. She informed her husband who in- turn informed to their Mausi. Then they all went to the house of the accused for arranging marriage of the prosecutrix with the accused but they did not agree. Thereafter, their Mausi informed the police.

17. PW13 Tilsunder Kumari, produced the school record of the prosecutrix as Ex. PW13/A & B and proved the date of birth of the prosecutrix as per her school record as 10.02.1994.

18. PW14 Ct Sayar,collected the exhibits of the accused after his medical examination which was seized by the IO from her vide seizure memo Ex. PW14/A.

19. PW15 SI Manju deposed that she arrested the accused and got recorded the statement of the prosecutrix u/s 164 Cr.P.C. She also collected the birth record of the prosecutrix and prepared the site plan of the place of occurrence at the instance of the prosecutrix.

20. On conclusion of the prosecution evidence, the statement of accused was recorded U/s 313 Cr.P.C. wherein he stated he is innocent and he has been falsely implicated. However, he preferred not to lead any DE.

21. Learned defence counsel has very vehemently argued the following points :
(a) that there is an unexplained delay in recording of FIR in the matter, which is fatal to the prosecution case ;
(b) that the accused has been falsely implicated in the matter ;
(c) that the medical and forensic evidence does not support the prosecution case.

22. I have given thoughtful consideration to the arguments advanced at bar and perused the entire material on record. My findings in the matter are as under.

23. Delay in recording of FIR: As per the prosecution case, on 13.12.2011 at about 8.30pm, prosecutrix went to answer the nature’s call behind a nala, in the meantime, accused put a knife on her neck and after taking her behind the bushes, he committed rape upon her. He threatened prosecutrix. Prosecutrix started weeping and she went to the house of her bhabhi Urmila. She did not disclose to anyone about this fact including her Mausi due to fear. For the first time, prosecutrix Judgment 10 of 18 SC No: 48/14 State Vs. Pardeep Shah approached the police on 13.03.2012 but no action was taken by the police. Thereafter, accused gave false allurement to the prosecutrix to marry her and since no action was taken by the police the prosecutrix filed complaint case on 08.09.2012, pursuant to the orders in that case FIR was registered.

24. Learned defence counsel has argued that firstly the police could not have refused to register case, particularly when it was with regard to rape of a minor girl and secondly, even if the explanation is accepted for the sake of argument, even then it would not have taken about 9 months to file the complaint case. It is further argued that there is no document on record pertaining to the period from 13.12.2011 till September, 2012 which could show that any attempt was made by the prosecutrix or her family in reporting the matter to the police. Even if the official at the police station had refused to record their complaint, then they could have approached the higher official or could have sent complaint by post or the least they could have made a call at number 100. Nothing of this sort was done by them. The learned defence counsel has Judgment 11 of 18 SC No: 48/14 State Vs. Pardeep Shah relied upon following judgments to emphasize the importance of quick reporting of the matter to the police. I have gone through the said judgments.

25. In case titled as Rajinder Prasad & Anr. vs. State, in Crl.A. 8/2000, decided on 19.05.2014, the Hon’ble High Court of Delhi, has been pleased to hold that:

In criminal trial, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon’ble Supreme Court in Lalita Kumari V/s Govt. of Uttar Pradesh and Ors., MANU/SC/1166/2013 : (2014) 2 SCC1, the object sought to be achieved by registering the earliest information as FIR in interalia twofold: One, that the criminal process is set into two motion and is well documented from the very start ; and Second, that the earliest information received in relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or Judgment 12 of 18 SC No: 48/14 State Vs. Pardeep Shah before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.

26. In Thulia Kali v. The State of Tamil Nadu, MANU/SC0276/1972: (1972) 3 SCC 393, it was held that the delay in lodging the first information report quite often results embellishment as a result of afterthought. On account of delay the report not only gets bereft of the advantage of the spontaneity, but also danger creeps in, of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation.

27. Per contra, the learned Addl. PP has very vehemently argued that different people /witnesses react differently in differently situations, whereas some become speechless while some other run away from the scene and yet there are some, who may come forwarded with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction. Mere delay in Judgment 13 of 18 SC No: 48/14 State Vs. Pardeep Shah lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.

28. I have considered the rival contentions of both the sides on this point. Adverting to the facts of the present case. It is quite strange that the family of prosecutrix did not do any thing tangible from 13.12.2011 till September, 2012 which could show that they were really concerned about her and had even made an attempt to approach the police rather they themselves got prepared the documents to facilitate marriage between the accused and prosecutrix. It is evident from the testimony of the family members of the prosecutrix that the complaint case was filed against the accused only when the marriage between the accused and prosecutrix did not materialize. Therefore, the prosecution has miserably failed to explain the delay in registration of FIR in the matter.

29. Plea of false implication of the accused: learned defence counsel has very vehemently argued that it is case of failed marriage proposal. Relatives of prosecutrix wanted to get marry her to the accused and as such, they also prepared documents to marry them but the accused did not attain majority, marriage between them could not materialize hence accused was falsely implicated in this case.

30. Prosecution witnesses have deposed that the affidavits Ex. PW9/C & D were executed by the accused and the prosecutrix executed an affidavit Ex. PW9/E wherein both of them have mentioned about their intention to marry each other. Obviously, there is no mention about the allegations of rape against the accused in these affidavits. Prosecutrix as well as her family members testified that since the accused had mentioned his age in those affidavits higher than his actual age that is why the marriage between the accused and prosecutrix did not materialize. For the sake of repetition it has still to be kept in mind that in none of the documents prepared by the prosecutrix there is no mention of any rape allegations of rape.

31. On scrutinizing the testimony of prosecutrix it can be seen that she went to attend the nature’s call only at a walking distance of about 5 minutes from her jhuggi. As per her deposition that place is not an isolated place and other jhuggi dwellers used to go there for attending call of nature. Prosecutrix admits that her clothes were not torn when accused forcibly took her behind the bushes nor she received any injury. Prosecutrix admits that she does not raise an alarm at the time of incident.

32. A close scrutiny of aforesaid statement would show that the statement of the prosecutrix do not appeal to the senses, for the simple reason that a able bodied girl of about 18 years of age, could not be physically taken away by accused. Moreover, the prosecutrix did no effort to raise any alarm or to lodge any complaint against the accused rather she choose to remain mum and did not report the incident to anybody.

33. I am conscious and it is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of her evidence.

34. However, in view of the above discussion, the testimony of the prosecutrix does not inspire confidence and the accused cannot be convicted on the basis of the wavering testimony of the prosecutrix in this case as it does not inspire confidence of this court.

35. Medical and Forensic Evidence : Prosecutrix was medically examined in the present case after about 10 months of the incident and hence, there could be no medical or forensic evidence which could corroborate the allegations against the accused.

36. Conclusion: In totality of the discussions made here in above, the testimony of the prosecutrix and her family members is not found credible to establish the guilt of the accused. Accordingly, the accused is acquitted of the offence punishable u/s 376/506 IPC. His Surety is discharged. Bail bond stands canceled. Accused is directed to furnish a personal bond in sum of Rs 10,000/- with surety in like amount under provisions of Section 437-A Cr.P.C.

File be consigned to record room.

Announced in open Court on Day of 30th October, 2015.

(GAUTAM MANAN)

ASJ-01:NORTH:ROHINI:DELHI