IN THE COURT OF XXX; LD.ASJ;

DIST. WEST; TIS HAZARI COURTS, DELHI.

SC CASE NO. xxx/2022.

IN THE MATTER OF :-

XXX           VERSUS                        XXX

FIR NO.xxx/2022

U/S: 376/376(2)(n)/323/342/34 IPC

P.S.: XXX

D.O.H.: xxx

WRITTEN SUBMISSIONS ON BEHALF OF THE ACCUSED XXX.

MOST RESPECTFULLY SHOWETH:-

1.                 That the aforesaid F.I.R has been registered on the basis of a complaint lodged by the informant / prosecutrix / complainant against the accused under Section 376/376(2)(n)/323/342/34 of IPC, and same is fixed for xxx for arguments on charge.

2.                 That the present written submissions has been moved on behalf of present accused seeking discharge from the aforesaid case in view of the fact that the prima facie, he was falsely implicated in the present case.

3.                 Some extracts of FIR lodged at the instance of the complainant has been narrated herein above, before dealing with the same, the applicant / accused seek the leave of this Hon’ble Court to place brief background of the dispute between the complainant and applicant / accused which would demonstrate the motive of filling this false case against the Accused / Applicant.

4.                 It is submitted that in contents of the FIR No. xxx/2022, PS Xxx, Delhi lodged on 11.01.2022 there is not even single allegation of rape or offence as mentioned in Section 6 of the POCSO Act, leveled against the present accused Xxx. Merely one single line which includes the name of Xxx is that Xxx is property Healer by profession and used to visit the floor of complainant. The copy of FIR no.xxx/2022 is annexed herewith for kind perusal of this Hon’ble Court as Annexure-A.

5.                 It is pertinent to mention here that the place of alleged incident where Xxx firstly came in the Picture as per contents of present FIR (to the extent of merely demand for sexual favors not commission of any alleged offence) is Plot No. xxx and as per the contents of the FIR bearing no. xxx/22, the complainant along with her children including the Minor Prosecutrix ‘J’ left the premises on 22.02.2020 as per the First statement of the Minor Prosecutrix 'J' U/s 164 Cr.PC recorded on 12.01.2022. The copy of the statement is annexed herewith for kind perusal of the Hon'ble Court as Annexure-B. It is further pertinent to mention here that the date of narrating the alleged incident by Minor Prosecutrix *%T is not correct as it reads as she narrated the alleged incidents to her mother on 27.02.2022 and then how the FIR no. xxx/22 got registered on 11.01.2022.

6.                 It is further extremely important to mention here that the Minor Prosecutrix 'J' lodged one FIR bearing No.xxx/21 at P.S. Xxx, U/s 354IPC, Sec. 8 of POCSO Act 3/4 of Child Labour Act and 79 of J.J. Act on 29.08.2021 against one Xxx. Then it is hard to believe and indigestible that why the Minor Prosecutrix 'J' did not lodge any complaint or FIR against the present applicant or any accused in FIR no.xxx/22 when minor prosecutrix ‘J’ was mature enough to reach PS Xxx to lodged FIR No.xxx/21 against one Xxx. The copy of the FIR bearing no. xxx/21, PS Xxx is annexed herewith for kind perusal of the Hon’ble court as Annexure-C.

7.                 That one complaint was made and addressed to the Commissioner of Police which was received on 20^th March, 2020 at Office of Jt. Commissioner of Police. In that complaint there is no allegation of any alleged sexual assault or rape with Prosecutrix 'S' or Minor Prosecutrix 'J' against applicant Xxx. The allegations were restricted to alleged harassment, beating and throwing the Prosecutrix 'S' along with her family out of H. No. xxx. It is again the point to consider here that when the prosecutrix ^‘S^’ made up her mind to make complaint to such superior authority as Joint Commissioner of Police then what stopped her to make further more allegation if any. It shows and make it crystal clear that actually there was no commission of sexual offence or offence mentioned U/s 6 of the POCSO Act. The copy of the Complaint to the Jt. Commissioner of Police made by Prosecutrix ‘S’ is annexed herewith as Annexure-D for kind perusal of the Hon'ble Court.

8.                 That there is one more FIR bearing no. xxx/22 lodged at PS Xxx on dated 23.03.2022 by One Sh. Xxx against the Prosecutrix 'S’. The content of this FIR bearing no. xxx/22 are sufficient to portray the behavior, moral character and conduct of the Prosecutrix ‘S' and Minor Prosecutrix 'J'.

9.                 That prior to registration of this FIR bearing no.xxx/22 the neither prosecutrix 'S' nor Minor Prosecutrix 'J' ever leveled any allegation of sexual assault or offence as mentioned under POCSO Act in any of their complaints to different Police officials. It is pertinent to mention here that the place of Incident i.e. H. No. xxx, was left by the Prosecutrix 'S' and Prosecutrix 'J' but they didn't opt to make any complaint throughout the period of around 2 years which is a considerable time period and that too when the Minor Prosecutrix went to PS Xxx to lodge one FIR bearing no. xxx/21 then what restrained her to lodge the present FIR earlier. It is an unexplained delay of around 2 long years.

10.             That the statement of Minor Prosecutrix 'J' was recorded on 12.01.2022 under section 164 Cr.PC where is her statement the Minor Prosecutrix mentioned the name of only Two persons and there is no mentioning of name of the Present applicant Xxx. It is further the point to be noted here that the Minor prosecutrix got tutored by her Advocate or someone else ultimately she improved her statement u/s 164 Cr.PC which was recorded on 25.08.2022. Which means almost 8 months after her first statement and around 2½ years after the alleged commission of offence. It certainly creates the doubt on the veracity of the statement of minor prosecutrix 'J’. The First Statement of the Minor Prosecutrix 'J' is annexed herewith for kind perusal of the Hon'ble Court as Annexure-E.

11.             The Statement of Prosecutrix 'S' and Minor Prosecutrix 'J' was recorded U/s 164Cr.PC on 12.01.2022 but there is contradiction in the statements of both the prosecutrix as there is no mentioning of name of Present applicant/accused not to speak of any sort of allegation against him.

12.             That there were several complaints made by prosecutrix 'S' and Minor Prosecutrix 'J' before registration of the present FIR bearing no. xxx/22 and as per the statement of Prosecutrix 'J' and the Complaint filed U/s 200 Cr.PC in the month of September, 2021 at para no. 12, the Minor Prosecutrix narrated the alleged offence to her mother on 27.02.2020 then why there is no allegation of rape and offence mentioned under POSCO Act in the complaint dated 27.02.2022 made to DCP, x by the Minor Prosecutrix ‘S’ as well. It is crucial point to be noted here is that if the offence as alleged really took place then why the complaints dated 27.02.2020, 23.03.2020 addressed to Joint Commissioner of Police made prior to registration of the present FIR bearing no. xxx/22 didn't contain any single line of allegation pertaining to offence of rape and Offence mentioned under POCSO Act. The complaint dated 13.11.2021 is also one complaint given to PS Xxx pertaining to some allegation against Two unknown person and Police personnel as well which also didn't mentioned the name of the present applicant Xxx. It is further the point to consider here that the alleged offence of rape and offence mentioned U/s 6 of the POCSO Act took place prior to making all these complaints then why the complainant i.e. Prosecutrix 'S' and Minor Prosecutrix 'J' didn't mentioned any such offence or name of the present Accused.

13.             That the matter being at the stage of arguments on charge, it is submitted that in view of the law laid down by Hon’ble High Court of Delhi in a matter titled as Bhim Singh Vs State of Delhi; 48(1992) DLT 402; “It has been observed that a very vital right of the individual is affected when he has to undergo a trial. Therefore, the Courts have to be extremely careful at this stage because it is really a question of the individual’s very important right which is curtailed or abridged to a large extent when he has to undergo the criminal prosecution of a futile trial”.

14.             Further it has been held in the case of Shashidharan Kollery & Ors. vs. State & Anr.: 2019 SCC Online Del 8969 whereby the Hon‟ble Supreme Court has held as under:

"25. At the time of framing a charge, it is the duty of the Trial Court to assess the entire material collected by the prosecution during investigation and not to frame a charge merely because an allegation is made by the complainant. It is the duty of the Trial Court to assess whether there is material on record to raise grave suspicion of the accused having committed the said offence. The material both against or in favour of the accused has to be assessed by the Trial Court to come to a conclusion as to whether grave suspicion arises or not.

15.             It has been further observed that non interference by this Court at the stage of framing of charge would lead to serious and grave consequences leading to manifest injustice if the charges are framed in the absence of any material. Further the accused shall have to face criminal prosecution of a futile trial for several years for prima fade committing no offence.

16.             The prosecution has not filed several statements recorded under Section 161 of Cr.P.C. of those witnesses who did not supported the case of the complainant thereby violating the right of the applicant / accused for free and fair investigation as envisaged under Article 20 and 21 of Constitution of India.

17.             There are omnibus kind of allegations in the whole complaint as well as in subsequent supplementary statements whereby complainant by her artful manipulation improved her case, even though in the absence of any specific role / time attributed about the incident, no charges can be framed and the applicant / accused is entitled for discharge from the prosecution.

18.             That the present case perfectly falls wherein the Hon’ble Supreme Court has held in the case of Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, J.S. Khehar, J. observed that the Indian judicial system is grossly afflicted with frivolous litigation and ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. The Supreme Court,discussed the menace of frivolous litigation. Relevant portions of the said judgment are as under: “191. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims.

19.             The present case projects and frescoes a scenario which is not only disturbing but also has the potentiality to create a stir compelling one to ponder in a perturbed state how some unscrupulous, unprincipled and deviant FIR can ingeniously and innovatively design in a nonchalant manner to knock at the doors of the Court.

Conduct Of The Complainant

It has been held by the various Hon’ble Courts that;-

“16. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the facts of each case including the manner of deposition and his demeans, clarity. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.”

20.             That the present FIR is dated 11.01.2022 mentioning about the incidents as stated herein above commencing in March, 2020 and lodged police complaint to Jt. Commissioner of Police by the prosecutrix ‘S’ and prior to registration of FIR on 11.01.2022 the neither prosecutrix ‘S’ nor minor prosecutrix ‘J’ ever leveled any allegation of sexual assault or offence in any of their complaints to different police officials, even the prosecutrix ‘S’ didn’t opt to make any complaint throughout the period of around 2 years which is a considerable time period, without explaining the delay in lodging the complaint pitches serious suspicion in the allegations as leveled by the complainants rather prove the case of the applicant / accused that the complaint lodged by the complainant is motivated and in the absence of any delay in reporting the incident despite being an educated female ex-facie exhibit that the FIR lodged by complaint is per-se false.

21.             It is submitted that the foundation of the case against the accused rests on the allegations contained in the First Information Report (FIR). However, it is crucial to note that the complainant never provided a factual narrative that aligns with the details contained in the FIR. This discrepancy raises serious questions about the credibility and reliability of the complainant's statement. It suggests that the FIR may have been influenced by external sources rather than being a true reflection of the complainant's own experience. This fundamental inconsistency undermines the very basis of the prosecution's case and should lead the Court to question the veracity of the FIR.

22.             Further to the point out, the circumstances surrounding the complainant's initial statement are suspect. Evidence indicates that it was the counsel for the complainant who fabricated a story in his application under Section 156(3) of the Criminal Procedure Code. This concocted narrative subsequently influenced the content of the complainant's first statement under section 164 Cr.P.C. The role of the complainant's counsel in shaping this narrative, rather than the complainant herself, casts doubt on the authenticity and originality of the allegations. This tainted process raises significant concerns about the integrity of the evidence presented against the accused and suggests that it should not be relied upon by the Court.

23.             The complainant's second statement under Section 164 Cr.P.C. was recorded nearly two years after the filing of the FIR. The considerable delay in recording this statement calls into question its credibility and raises the potential for external influence or memory lapses over time. Legal precedents emphasize the importance of timeliness in the recording of witness statements to ensure accuracy and reliability. Given the extended delay, this second statement lacks the probative value that would warrant its consideration as credible evidence. This further diminishes the strength of the prosecution's case against the accused. Following, a second statement under section 164 Cr.P.C. recorded almost two years after the FIR lacks the legal weight typically granted to such statements. This delay inherently diminishes its evidentiary value, as the lapse of time increases the likelihood of inconsistencies, external influences, or deliberate fabrication. Courts generally view statements recorded long after the event with skepticism, recognizing the potential for distortion and unreliability. Given these factors, the second statement should carry little to no weight in the eyes of the law, rendering it insufficient to support the charges against the accused.

24.             The glaring contradiction casts serious doubts about the veracity of the complainant coupled with facts there is no corroborative evidence has been filed along with the charge sheet. The contradictions are significant in nature and effecting the genesis of the prosecution story and same cannot be accepted to the extent of dependable as such prosecution cannot be believed and a statement be discarded in the absence of any corroborative evidence.

25.             Pertinently Complainant deliberately lodged an FIR against the applicant because of her influence and even otherwise the statement of the complainant is untrustworthy, unreliable as such this Hon’ble Court has to circumspect and has to look for corroboration in material particulars as the statement of the complainant is inconsistence and in view of the same the initial burden which is upon the complainant is unable to discharge in the present case by the prosecution. As per the contradictory statements in the FIR which create doubts on the prosecution case and the statement is so incompatible with the credibility of her version as such court should discharge the accused.

26.             Furthermore there is no criminality whatsoever which is made out in the FIR, nor have the ingredients of any criminal offence been prima facie made out against the petitioner.

27.             In the absence of any evidence on record coupled with non impleadment of the material witnesses it unfolds the narrative of the prosecution case.

28.             For that applicant / accused be discharged as F.I.R. contains bald and vague averments, without any substantiation whatsoever. It is respectfully submitted that apart from bald allegations, the prosecution does not contain a single specific incident regarding the alleged offence(s) which have been committed. This only goes to show that the complaint is completely fabricated, concocted and malicious, and is in fact contrary to facts.

29.             That applicant further submits that he is participating in the Trial Proceedings from lasts five years, which is almost more than the maximum sentence of the offence to the applicant / accused, as such their fundamental rights have been violated. That applicant is entitled for speedy disposal and in the present case, delay is not because of any other reasons.

30.             That it is further stated that there is no any specific allegation against the applicant and the FIR is malicious and in view of reported judgment entitled as Parminder Kaur Vs. State of Uttar Pradesh &Ors. (2010) 1 SCC 322 present accused are liable to be discharged.

31.             That it is further submitted that there is no supported material available on the record which proves prima facie case against the applicant / accused therefore the applicant is liable to be discharged.

32.             Prosecution / prosecution has miserably failed to prove any offence against applicant / accused. Hence, applicant should be discharged of all the offences.

33.             That the applicant / Accused, therefore, most humbly prays that, this Hon’ble court be pleased to discharge the applicant / Accused for the offences punishable U/s 376/376(2)(n)/323/ 342/34 of IPC, registered with Xxx, Police Station, in the interest of justice.

P R A Y E R

In the aforesaid facts and circumstances the applicant most respectfully prays that this Hon’ble Court may graciously be pleased to discharge the applicant / accused from the charge leveled against him in the present case, in the interest of justice.

It is prayed accordingly.

DELHI                                             APPLICANT/ACCUSED

                                                THROUGH

DATED

                   xxx

xx, Advocate

xx

Mob.No.xx

xxxx