Written submissions on behalf of accused seeking discharge in rape/POCSO case at charge stage
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
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IN THE MATTER OF:
STATEVERSUS Accused's name
FIR No. FIR number
U/S: 376/376(2)(n)/323/342/34 IPC
P.S.: Police station
D.O.H.: Date of hearing
WRITTEN SUBMISSIONS ON BEHALF OF THE ACCUSED Accused's name
MOST RESPECTFULLY SHOWETH:
1.That the aforesaid FIR has been registered on the basis of a complaint lodged by the informant / prosecutrix / complainant against the accused under Sections 376/376(2)(n)/323/342/34 of the IPC, and the matter is fixed for Date of hearing for arguments on charge.
2.That the present written submissions have been filed on behalf of the accused seeking his discharge from the aforesaid case on the ground that, prima facie, he has been falsely implicated in the present case.
3.Certain extracts of the FIR lodged at the instance of the complainant are narrated hereinbelow. Before dealing with the same, the accused seeks leave of this Hon'ble Court to place on record a brief background of the dispute between the complainant and the accused, which would demonstrate the motive behind the institution of this false case against the accused.
4.It is submitted that in the contents of FIR No. FIR number, PS Police station, lodged on Date of FIR, there is not even a single allegation of rape or of any offence as mentioned in Section 6 of the POCSO Act levelled against the present accused Accused's name. The only line which refers to Accused's name states that Accused's name is a property dealer by profession and used to visit the floor of the complainant. A copy of FIR No. FIR number is annexed herewith for the kind perusal of this Hon'ble Court as Annexure-A.
5.It is pertinent to mention that the place of the alleged incident, where Accused's name first came into the picture as per the contents of the present FIR (and only to the extent of an alleged demand for sexual favours, not the commission of any alleged offence), is Address of alleged incident, Delhi. As per the contents of FIR No. Earlier FIR number, the complainant, along with her children including the minor prosecutrix 'J', left the premises on Date complainant left the premises, as per the first statement of the minor prosecutrix 'J' under Section 164 Cr.P.C. recorded on Date of first 164 CrPC statement. A copy of the said statement is annexed herewith for the kind perusal of this Hon'ble Court as Annexure-B. It is further pertinent to note that the date of the minor prosecutrix narrating the alleged incident to her mother, namely Date alleged incident narrated to mother, and the date on which FIR No. FIR number came to be registered, do not tally.
6.It is further extremely important to mention that the minor prosecutrix 'J' lodged FIR No. Earlier FIR number at PS Police station under Section 354 IPC, Section 8 of the POCSO Act, Sections 3/4 of the Child Labour Act and Section 79 of the J.J. Act on Date of earlier FIR against one Name of accused in earlier FIR. It is difficult to believe, and indeed incomprehensible, why the minor prosecutrix 'J' did not lodge any complaint or FIR against the present accused or any of the accused in FIR No. FIR number, when she was mature enough to approach PS Police station and lodge an FIR against Name of accused in earlier FIR. A copy of FIR No. Earlier FIR number, PS Police station, is annexed herewith for the kind perusal of this Hon'ble Court as Annexure-C.
7.That one complaint was made and addressed to the Commissioner of Police, which was received on Date complaint received by Joint Commissioner of Police at the Office of the Joint Commissioner of Police. In that complaint there is no allegation of any alleged sexual assault or rape committed upon prosecutrix 'S' or the minor prosecutrix 'J' by the accused Accused's name. The allegations were restricted to alleged harassment, beating, and throwing prosecutrix 'S' along with her family out of H. No. 52, Address of premises. It is again a point for consideration that when prosecutrix 'S' made up her mind to complain to so superior an authority as the Joint Commissioner of Police, nothing stopped her from making further allegations, if any. This makes it crystal clear that no sexual offence, or offence mentioned under Section 6 of the POCSO Act, was in fact committed. A copy of the complaint made by prosecutrix 'S' to the Joint Commissioner of Police is annexed herewith as Annexure-D for the kind perusal of this Hon'ble Court.
8.That there is one more FIR, bearing No. Other FIR number, lodged at PS Police station on Date of other FIR by one Sh. Name of complainant in other FIR against prosecutrix 'S'. The contents of FIR No. Other FIR number are sufficient to portray the behaviour, moral character and conduct of prosecutrix 'S' and the minor prosecutrix 'J'.
9.That prior to the registration of FIR No. FIR number, neither prosecutrix 'S' nor the minor prosecutrix 'J' ever levelled any allegation of sexual assault or of any offence mentioned under the POCSO Act in any of their complaints to the various police officials. It is pertinent to mention that the place of incident, i.e. Address of premises, was vacated by prosecutrix 'S' and prosecutrix 'J', yet they did not choose to make any complaint throughout the period of around 2 years, which is a considerable period of time. Further, when the minor prosecutrix went to PS Police station to lodge FIR No. Earlier FIR number, nothing restrained her from lodging the present FIR earlier. There is thus an unexplained delay of around Number of years of delay years.
10.That the statement of the minor prosecutrix 'J' was recorded on Date of first 164 CrPC statement under Section 164 Cr.P.C., wherein the minor prosecutrix mentioned the names of only two persons, and there is no mention of the name of the present accused Accused's name. It is further a point to be noted that the minor prosecutrix was tutored, whether by her advocate or someone else, and ultimately improved upon her statement under Section 164 Cr.P.C., which was recorded on Date of second 164 CrPC statement — that is, almost 8 months after her first statement and around 2½ years after the alleged commission of the offence. This certainly casts doubt on the veracity of the statement of the minor prosecutrix 'J'. The first statement of the minor prosecutrix 'J' is annexed herewith for the kind perusal of this Hon'ble Court as Annexure-E.
11.That the statements of prosecutrix 'S' and the minor prosecutrix 'J' were recorded under Section 164 Cr.P.C. on Date of 164 CrPC statements of both prosecutrices, but there are contradictions in the statements of the two prosecutrices, in that there is no mention of the name of the present accused, let alone any allegation whatsoever against him.
12.That several complaints were made by prosecutrix 'S' and the minor prosecutrix 'J' prior to the registration of the present FIR No. FIR number. As per the statement of the minor prosecutrix and the complaint filed under Section 200 Cr.P.C. in the month of Month and year of Section 200 CrPC complaint, at paragraph 12, the minor prosecutrix narrated the alleged offence to her mother on Date alleged incident narrated to mother. The question then arises as to why there is no allegation of rape or of any offence mentioned under the POCSO Act in the complaint dated Date of complaint to DCP made to the DCP, Police district, by prosecutrix 'S' as well. It is a crucial point to be noted that if the alleged offence had in fact taken place, why the complaint dated Date of complaint to Joint Commissioner of Police addressed to the Joint Commissioner of Police, made prior to the registration of the present FIR No. FIR number, did not contain even a single line of allegation pertaining to the offence of rape or any offence mentioned under the POCSO Act. The complaint dated Date of complaint to police station is also a complaint given to PS Police station pertaining to certain allegations against two unknown persons as well as police personnel, and it likewise does not mention the name of the present accused Accused's name. It is further a point for consideration that if the alleged offence of rape and the offence mentioned under Section 6 of the POCSO Act had taken place prior to the making of all these complaints, why the complainant, i.e. prosecutrix 'S' and the minor prosecutrix 'J', did not mention any such offence or the name of the present accused.
13.That the matter is presently at the stage of arguments on charge. It is submitted that, in view of the law laid down by the Hon'ble High Court of Delhi in Bhim Singh v. 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 Shashidharan Kollery & Ors. v. State & Anr., 2019 SCC Online Del 8969, wherein the Hon'ble Supreme Court 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 the Court at the stage of framing of charge would lead to serious and grave consequences, resulting in manifest injustice if charges are framed in the absence of any material. Further, the accused would then have to face a criminal prosecution of a futile trial for several years despite having committed no offence prima facie.
16.The prosecution has withheld several statements recorded under Section 161 of Cr.P.C. of those witnesses who did not support the case of the complainant, thereby violating the right of the applicant / accused to a free and fair investigation as envisaged under Articles 20 and 21 of the Constitution of India.
17.The complaint as well as the subsequent supplementary statements contain only omnibus allegations, whereby the complainant, by her artful manipulation, improved her case. In the absence of any specific role or time attributed with respect to the alleged incident, no charge can be framed, and the applicant / accused is entitled to discharge from the prosecution.
18.That the present case squarely falls within the situation addressed by the Hon'ble Supreme Court in Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, wherein J.S. Khehar, J. observed that the Indian judicial system is grossly afflicted with frivolous litigation and that ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. The Hon'ble Supreme Court discussed the menace of frivolous litigation, and the relevant portion of the said judgment is 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 an unscrupulous, unprincipled and deviant FIR can be ingeniously and innovatively designed, in a nonchalant manner, to knock at the doors of the Court.
Conduct of the Complainant
It has been held by 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 Date of FIR and mentions the incidents, as stated hereinabove, commencing in Month and year of commencement of alleged incidents. A police complaint was lodged with the Joint Commissioner of Police by the prosecutrix 'S'. Prior to the registration of the FIR on Date of registration of FIR, neither the prosecutrix 'S' nor the minor prosecutrix 'J' ever levelled any allegation of sexual assault or any other offence in any of their complaints to the various police officials. Further, the prosecutrix 'S' did not choose to make any complaint throughout a period of around two years, which is a considerable period of time. The unexplained delay in lodging the complaint casts serious suspicion upon the allegations levelled by the complainants and rather proves the case of the applicant / accused that the complaint lodged by the complainant is motivated. The absence of any prompt reporting of the incident, despite the complainant being an educated woman, ex facie establishes that the FIR lodged by the complainant 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 consistent 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 account. This fundamental inconsistency undermines the very basis of the prosecution's case and ought to lead the Court to question the veracity of the FIR.
22.Further, 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 against the accused, and it is submitted that such evidence ought not to 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 its credibility into question and raises the possibility of external influence or lapses of memory over time. Legal precedent emphasises 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, which further diminishes the strength of the prosecution's case against the accused. A second statement under Section 164 Cr.P.C. recorded almost two years after the FIR lacks the legal weight ordinarily accorded to such statements. The 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 scepticism, recognising their potential for distortion and unreliability. In light of these factors, the second statement ought to carry little or no weight in the eyes of the law, rendering it insufficient to support the charges against the accused.
24.The glaring contradictions cast serious doubt upon the veracity of the complainant, and, coupled with the fact that no corroborative evidence has been filed along with the charge-sheet, they are significant in nature and effect and strike at the genesis of the prosecution story. The prosecution version cannot, to the extent of dependability, be accepted, and a statement ought to be discarded in the absence of any corroborative evidence.
25.Pertinently, the complainant deliberately lodged the FIR against the applicant on account of her influence. Even otherwise, the statement of the complainant is untrustworthy and unreliable, and is inconsistent. This Hon'ble Court has therefore to be circumspect and to look for corroboration in material particulars, as the initial burden which lies upon the complainant has not been discharged by the prosecution in the present case. The contradictory statements in the FIR create doubts upon the prosecution case, and the statement is so incompatible with the credibility of her version that this Hon'ble Court ought to discharge the accused.
26.Furthermore, no criminality whatsoever 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 the non-impleadment of the material witnesses, the narrative of the prosecution case stands unfolded as false.
28.The applicant/accused ought to be discharged as the FIR contains bald and vague averments without any substantiation whatsoever. It is respectfully submitted that, apart from bald allegations, the prosecution does not disclose a single specific incident regarding the alleged offence(s) said to have been committed. This only goes to show that the complaint is completely fabricated, concocted and malicious, and is in fact contrary to the facts.
29.The applicant further submits that he has been participating in the trial proceedings for the last five years, which is almost more than the maximum sentence for the offence punishable against the applicant/accused, and as such his fundamental rights stand violated. The applicant is entitled to a speedy disposal, and the delay in the present case is not attributable to any other reason.
30.It is further stated that there is no specific allegation against the applicant and that the FIR is malicious. In view of the reported judgment in Parminder Kaur Vs. State of Uttar Pradesh & Ors. (2010) 1 SCC 322, the present accused are liable to be discharged.
31.It is further submitted that there is no supporting material available on record which proves a prima facie case against the applicant/accused; therefore, the applicant is liable to be discharged.
32.The prosecution has miserably failed to prove any offence against the applicant/accused. Hence, the applicant ought to be discharged of all the offences.
33.The applicant/accused, therefore, most humbly prays that this Hon'ble Court may be pleased to discharge the applicant/accused for the offences punishable under Sections 376/376(2)(n)/323/342/34 of IPC, registered with Police Station 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 levelled against him in the present case, in the interest of justice.
It is prayed accordingly.
DELHIAPPLICANT/ACCUSED
THROUGH
DATEDDate of signing
Advocate's name, Advocate
Advocate's address,
New Delhi-110015
Mob. No. Advocate's mobile number