Full Text
JUDGMENT
RAJ BAHADUR CHAUHAN ..... Petitioner
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
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 376/120B/328/34 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 2019:DHC:2939 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.
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 section 328 read with section 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 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 section 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 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 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