Written submissions on behalf of the accused seeking discharge in a rape case
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
0 of 43 blanks filled
IN THE COURT OF Court name
DISTRICT WEST; TIS HAZARI COURTS, DELHI
SESSIONS CASE NO. Sessions case number/2022
IN THE MATTER OF:
Complainant's nameVERSUS Accused's name
FIR NO. FIR number/2022
U/S 376/376(2)(n)/323/342/34 IPC
P.S.: Police station
D.O.I.: Date of institution of case
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 case is now fixed for Date fixed for arguments on charge 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 applicant/accused seeks leave of this Hon'ble Court to place on record a brief background of the dispute between the complainant and the applicant/accused, which would demonstrate the motive behind the institution of this false case against the accused/applicant.
4.It is submitted that in the contents of FIR No. FIR number/2022, PS Police station, Delhi, lodged on Date of lodging of the present FIR, there is not even a single allegation of rape or of an offence as mentioned in Section 6 of the POCSO Act levelled against the present accused Accused's name. *The only single line in which the name of Accused's name appears is to the effect that Accused's stated profession as per FIR is a property healer by profession and used to visit the floor of the complainant.* A copy of FIR No. FIR number/2022 is annexed herewith for the kind perusal of this Hon'ble Court as Annexure-A.
5.It is pertinent to mention here that the place of the alleged incident, where Complainant's name first came into the picture as per the contents of the present FIR (to the extent only of a demand for sexual favours, and not the commission of any alleged offence), is Plot No. Plot number of alleged incident. As per the contents of FIR No. FIR number/2022, the complainant, along with her children including the minor prosecutrix Minor prosecutrix's name, left the premises on Date on which the complainant left the premises, as per the first statement of the minor prosecutrix Minor prosecutrix's name recorded under Section 164 Cr.P.C. on Date of first Section 164 Cr.P.C. 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 mention here that the date on which the minor prosecutrix is stated to have narrated the alleged incident to her mother is not correct, for she is stated to have narrated the alleged incidents to her mother on Date on which minor prosecutrix narrated the incident to her mother, and it is unexplained how FIR No. FIR number/2022 came to be registered only on Date of lodging of the present FIR.
6.It is further extremely important to mention here that the minor prosecutrix Minor prosecutrix's name lodged an earlier FIR bearing No. Earlier FIR number by minor prosecutrix/2021 at PS Police station of earlier FIR 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 the earlier FIR by the minor prosecutrix against one Name of accused in earlier FIR. It is therefore difficult to believe, and it def credence, that the minor prosecutrix Minor prosecutrix's name lodged no complaint or FIR against the present applicant or any of the accused in FIR No. FIR number/2022, when she was mature enough to reach PS Police station of earlier FIR and lodge FIR No. Earlier FIR number by minor prosecutrix/2021 against one Name of accused in earlier FIR. A copy of FIR No. Earlier FIR number by minor prosecutrix/2021, PS Police station of earlier FIR, 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 of receipt of complaint to Joint Commissioner of Police in the office of the Joint Commissioner of Police. In that complaint there is no allegation of any alleged sexual assault or rape upon the prosecutrix Complainant's name or the minor prosecutrix Minor prosecutrix's name against the applicant Accused's name. The allegations were restricted to alleged harassment, beating, and throwing the prosecutrix Complainant's name along with her family out of House No. House number of complainant's premises. It is again a point for consideration here that when the prosecutrix 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 existed. This makes it crystal clear that in fact no sexual offence, or offence as mentioned under Section 6 of the POCSO Act, was ever committed. A copy of the complaint made by the prosecutrix 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 yet another FIR bearing No. Cross FIR number against complainant/2022, lodged at PS Police station of cross FIR on Date of the cross FIR by one Sh. Name of complainant in cross FIR against the prosecutrix. The contents of this FIR bearing No. Cross FIR number against complainant/2022 are sufficient to portray the behaviour, moral character and conduct of the prosecutrix and the minor prosecutrix.
9.That prior to the registration of FIR No. FIR number/2022, neither the prosecutrix nor the minor prosecutrix ever levelled any allegation of sexual assault or of an offence under the POCSO Act in any of their complaints to various police officials. It is pertinent to mention here that the place of incident, i.e., House No. House number of complainant's premises, was vacated by the prosecutrix and the minor prosecutrix, yet they chose not to make any complaint throughout a period of approximately two years, which is a considerable period, and that too when the minor prosecutrix went to PS Police station of earlier FIR to lodge FIR No. Earlier FIR number by minor prosecutrix/2021; nothing restrained her from lodging the present FIR earlier. There is thus an unexplained delay of approximately two long years.
10.That the statement of the minor prosecutrix was recorded on Date of first Section 164 Cr.P.C. statement under Section 164 Cr.P.C., and in that statement the minor prosecutrix mentioned the names of only two persons; there is no mention of the name of the present applicant Accused's name. It is further a point to be noted that the minor prosecutrix was subsequently tutored, whether by her advocate or by someone else, and ultimately she improved upon her statement under Section 164 Cr.P.C. which was recorded on Date of the improved Section 164 Cr.P.C. statement, that is, almost eight months after her first statement and approximately two and a half years after the alleged commission of the offence. This certainly casts doubt upon the veracity of the statement of the minor prosecutrix. The first statement of the minor prosecutrix is annexed herewith for the kind perusal of this Hon'ble Court as Annexure-E.
11.That the statements of the prosecutrix and the minor prosecutrix were recorded under Section 164 Cr.P.C. on Date of first Section 164 Cr.P.C. statement, but there are contradictions between the statements of the two prosecutrices, in that there is no mention of the name of the present applicant/accused therein, much less of any allegation whatsoever against him.
12.That several complaints were made by the prosecutrix and the minor prosecutrix before the registration of the present FIR bearing No. FIR number/2022. As per the statement of the minor prosecutrix and the complaint filed under Section 200 Cr.P.C. in the month of {{month_of_complaint_u/s_200}} at paragraph 12, the minor prosecutrix narrated the alleged offence to her mother on Date on which minor prosecutrix narrated the incident to her mother; yet there is no allegation of rape or of an offence under the POCSO Act in the complaint dated Date of complaint made to the DCP made to the DCP, Name of DCP to whom complaint was addressed, by the minor prosecutrix. It is a crucial point to be noted that if the offence as alleged had really taken place, then the complaints dated Date of first complaint addressed to Joint Commissioner of Police and Date of second complaint addressed to Joint Commissioner of Police addressed to the Joint Commissioner of Police, made prior to the registration of the present FIR bearing No. FIR number/2022, would not have failed to contain even a single line of allegation pertaining to the offence of rape and the offence under the POCSO Act. The complaint dated Date of complaint regarding two unknown persons is another complaint given at PS Police station pertaining to certain allegations against two unknown persons as well as police personnel, and it also did not mention the name of the present applicant Accused's name. It is further a point for consideration that if the alleged offence of rape and the offence under Section 6 of the POCSO Act took place prior to the making of all these complaints, then why did the complainant, i.e., the prosecutrix, and the minor prosecutrix not mention any such offence or the name of the present accused therein.
13.That the matter being 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:
“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, in Shashidharan Kollery & Ors. v. State & Anr., 2019 SCC Online Del 8969, it has been 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, resulting in manifest injustice if charges are framed in the absence of any material. Further, the accused would have to face criminal prosecution of a futile trial for several years despite having prima facie committed no offence.
16.That 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.That there are omnibus allegations in the complaint as well as in the subsequent supplementary statements, whereby the complainant, by artful manipulation, improved her case. In the absence of any specific role or time attributed with regard to the incident, no charges can be framed, and the applicant/accused is entitled to discharge from the prosecution.
18.That the present case squarely falls within the ambit of the law laid down 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 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 reads 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.That the present case projects a scenario which is not only disturbing but also has the potential to create a stir, compelling one to ponder, in a perturbed state, how some 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 registration of FIR and pertains to incidents alleged to have commenced from Period from which the alleged incidents commenced, whereas a police complaint was earlier lodged with the Police authority to whom the earlier complaint was lodged by the prosecutrix Initial of the prosecutrix. Prior to registration of the FIR on Date of registration of FIR, neither the prosecutrix Initial of the prosecutrix nor the minor prosecutrix Initial of the minor prosecutrix ever levelled any allegation of sexual assault or any other offence in any of their complaints to the different police officials. Further, the prosecutrix Initial of the prosecutrix chose not to make any complaint throughout a period of approximately Period of delay in lodging the complaint, which is a considerable period of time. The unexplained delay in lodging the complaint raises serious suspicion regarding the allegations levelled by the complainants, and rather establishes the case of the applicant/accused that the complaint lodged by the complainant is motivated. The delay in reporting the incident, despite the complainant being an educated woman, ex facie exhibits 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 regarding the credibility and reliability of the complainant’s statement, and 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 ought to lead this Hon’ble 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, and this concocted narrative subsequently influenced the contents of the complainant’s first statement under Section 164 Cr.P.C. The role of the complainant’s counsel in shaping the narrative, rather than the complainant herself, casts doubt on the authenticity and originality of the allegations. This tainted process raises significant concerns regarding the integrity of the evidence against the accused, and suggests that such evidence ought not to be relied upon by this Hon’ble 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 possibility of external influence or lapses of memory over time. Legal precedents emphasize the importance of timeliness in the recording of witness statements to ensure accuracy and reliability. Given the extended delay, the second statement lacks the probative value that would warrant its consideration as credible evidence, and 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 typically granted to such statements; the lapse of time inherently diminishes its evidentiary value, as it 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. 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 contradiction casts serious doubt upon the veracity of the complainant, and there is no corroborative evidence on record to support the charge-sheet. The contradictions are significant in nature and effect and go to the very genesis of the prosecution story. The prosecution, therefore, cannot be believed to the extent of being dependable, and the statement of the complainant ought to be discarded in the absence of any corroborative evidence.
25.Pertinently, the complainant deliberately lodged the FIR against the applicant under the influence of others. The statement of the complainant is untrustworthy and unreliable. This Hon'ble Court is therefore required to look for corroboration in material particulars, as the statement of the complainant is inconsistent, and the initial burden upon the prosecution to prove its case has not been discharged. The contradictory statements in the FIR create serious doubt upon the prosecution case, and her version is incompatible with credibility; accordingly, the accused is entitled to be discharged.
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 applicant / accused.
27.In the absence of any evidence on record, coupled with the non-examination of material witnesses, the true nature of the prosecution case stands exposed.
28.That the applicant / accused is entitled 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 place on record a single specific incident regarding the alleged offence(s). This only demonstrates that the complaint is completely fabricated, concocted and malicious, and is in fact contrary to the facts on record.
29.That the applicant further submits that he has been participating in the trial proceedings for the last Duration of trial proceedings in years, which exceeds almost the maximum sentence prescribed for the alleged offence. The fundamental rights of the applicant / accused have thus been violated. The applicant is entitled to a speedy disposal of his case, and in the present case, the delay is attributable to no fault of his own.
30.That it is further stated that there is no specific allegation against the applicant, and the FIR is malicious. In view of the judgment reported as Parminder Kaur Vs. State of Uttar Pradesh & Ors., (2010) 1 SCC 322, the present accused is liable to be discharged.
31.That 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.That the applicant / accused, therefore, most humbly prays that this Hon'ble Court be pleased to discharge the applicant / accused for the offences punishable under Sections 376/376(2)(n)/323/342/34 of the IPC, registered at 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 charges levelled against him in the present case, in the interest of justice.
It is, therefore, most respectfully prayed accordingly.
PLACE: Place of signingAPPLICANT / ACCUSED
THROUGH:
Advocate's name, Advocate
DATED: Date of signing
Advocate's chamber address
Mob. No. Advocate's mobile number