Delhi District Court
State vs Sunder Singh. -:: Page 1 Of 52 ::- on 21 November, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
State
versus
Mr. Sunder Singh
Son of Mr. Meva Ram,
Resident of House No.B-56, Shiv Ram Park Extn,
Nilothi More, Delhi.
Present Address: Village Rasul Pur, P.O Orangabad
Shayna, Distraict Bulandsheher, U.P.
First Information Report Number : 63/11
Police Station Nihal Vihar
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 24.06.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 06.08.2011.
In the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 21.11.2013.
Date of judgment : 21.11.2013.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr.R.P.S.Sirohi.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 1 of 52 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This case falls in the list of twenty oldest cases pending before this Court. A sincere endeavour has been made to dispose this case as expeditiously as practically possible.
2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the accused, as in the present case.
3. "Courts are expected to show great responsibility while trying Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 2 of 52 ::-
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an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr. Sunder Singh, the accused, has been charge sheeted by Police Station Nihal Vihar, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that prior to 3 ¼ months to 09.03.2011 in the day time at B-56, Shiv Ram Park Extn, Nilothi, Delhi within the jurisdiction of Police Station Nihal Vihar, he committed rape upon prosecutrix (name withheld to protect her identity).
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 3 of 52 ::-
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24.06.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 06.08.2011 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide circular number 20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
6. After hearing arguments, charge for offence under section 376 of the IPC was framed against the accused Mr. Sunder Singh by the learned predecessor on 26.09.2011.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
7. The prosecution story unveils with the police coming to the house of the prosecutrix when a call is made at 100 number by her mother and taking her to Police Station Nihal Vihar where her statement (Ex.PW5/A) was recorded on which the rukka (Ex.PW3/A) was written and the FIR (Ex.PW2/A) was lodged by duty officer HC Rajesh Kumar (PW2). IO SI Savita (PW13) and Ct. Akash went to SGM Hospital where they met ASI Dalbir, Lady Ct. Seema, prosecutrix and her mother. The prosecutrix was medical examined by Dr.Niranjan, who has since left the services of the hospital and Dr. Sanjay Kumar Jain (PW12) appeared for proving the MLC (Ex.PW7/A) and was referred to the Gynecological department where she was medically examined by Dr. Pratima (PW7), Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 4 of 52 ::-
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who firmed that the patient had pregnancy of 14 weeks and she wanted to get MTP done. One sealed pulenda pertaining to the prosecutrix and one sample seal were seized vide seizure memo (Ex.PW1/A). The prosecutrix, her mother, IO, Ct.Akash, ASI Dalbir (PW3) and Lady Ct. Seema (PW1)went to the house of accused i.e House No.B-56, Shiv Ram Park, Nangloi, where he was not found and on pointing out of the prosecutrix, the site plan (Ex.PW13/A) was prepared. Accused was arrested on 10.03.2011 vide arrest memo (Ex.PW-5/B) and his personal search was taken vide personal search memo (Ex.PW-5/C) and he made his disclosure vide disclosure statement (Ex.PW8/A). He pointed out the place of incident vide pointing out memo (Ex.PW8/C). On 10.03.2011, he was taken by Ct.Basuki Yadav (PW8) for his medical examination at SGM hospital, where he was medically examined by Dr.Ajay Kumar (PW6) vide MLC (Ex. PW6/A) and two sealed pulanda and one sample seal were seized vide seizure memo (Ex.PW8/B). ASI Dalbir Singh (PW3) deposited one sealed pullandas with sample seal on 09.03.2011 in the malkhana with the Malkhana Moharar HC Ram Avtar (PW4) vide entry in register number 19 (Ex.PW4/A). On 10.03.2011, IO SI Savita deposited two sealed pullandas and one sample seal in the malkhana with the Malkhana Moharar (PW4) vide entry in register number 19 (Ex.PW4/B). On 04.05.2011, three sealed pullandas and one sample seal were sent to FSL through Ct. Ashish (PW10) vide RC No.71/21/2011 of register number 21 of which the road certificate (Ex.PW4/C) prepared. The exhibits of this case were examined by the FSL expert (PW 11) Ms. L.Babyto Devi vide her detailed FSL reports (Ex.PW11/A and Ex.PW11/B).
Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 5 of 52 ::-
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8. The allegations against the accused are that prior to 3 ¼ months to 09.03.2011 in the day time at B-56, Shiv Ram Park Extn, Nilothi, Delhi within the jurisdiction of Police Station Nihal Vihar, he committed rape upon prosecutrix (name withheld to protect her identity) aged about 24 years.
9. The accused used to stay near the house of the mother of the prosecutrix Ms. Murti (PW9) who had made his brother in law (Jija) her brother (Dharam ka bhai). At about 10.30-11.00am the prosecutrix (PW5) had gone to his house to give him lassi (butter milk). He was alone at that time. While she was keeping the jug of lassi on the table, he bolted the door on the pretext that he wanted to talk about something to her on which she said that there was nothing to talk as she was married and had two children and he should not spoil her life. He raped her and threatened her with dire consequences in case she disclosed about the incident of rape to any one. The husband of the prosecutrix came to her mother's house and took her to Mitrau. As he had some doubt on her, he got her ultrasound conducted, which revealed a three months pregnancy on which he left her at her mother's house saying that he will not live with her. On enquiry from her mother, the prosecutrix told her about all the facts including the rape by the accused on which her mother called the police at 100 number.
PROSECUTION EVIDENCE
10. In order to prove its case, the prosecution has examined as many as 13 witnesses i.e. WCt. Seema Chahar, who took the prosecutrix Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 6 of 52 ::-
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for medical examination as PW1; HC Rajesh Kumar, who is the duty officer who had recorded the FIR of the case is PW2; ASI Dalbir Singh, the first investigation officer of the case as PW3; HC Ram Avtar,who is the MHC(M) is PW2; Prosecutrix as PW5; Dr. Ajay Kumar, who had medically examined the accused as PW6; Dr. Pratima, who had medically examined the prosecutrix as PW7; Ct.Basuki, who is a witness of investigation is PW8; Mr. Murti, mother of prosecutrix as PW9; Ct. Ashish, who had taken the sealed parcels to the FSL is PW10; Ms. L.Babyto Devi, who had proved the FSL reports, is PW11; Dr. Sanjay Kumar Jain, who had depute in place of Dr. Niranjan, who had examined the prosecutrix and proved the MLC as PW12 and SI Savita, the second investigation officer of the case as PW13.
11. The accused has preferred not to cross examine PWs 1, 2, 6, 7, 10, 11 and 12 and therefore their evidence can be presumed to have been admitted as correct by the accused since it remains uncontroverted and unrebutted.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
12. In his statement under section 313 of the Cr.P.C., recorded on , the accused Sunder Singh has controverted and rebutted the entire evidence against him submitting he is innocent and falsely implicated in this case. The prosecutrix was pressurized for marriage with him but he refused and due to this reason, she falsely implicated him in this case. He has not committed any offence. He never resided at H.No. B-56, Shiv Ram Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 7 of 52 ::-
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Park, Nangloi, Delhi as the said house was sold to Mr. Thakur by his brother in law Mr. Amarpal in the year 2009 and since 2009, his brother in law and sister were residing at Loni, Ghaziabad at the time of alleged incident.
DEFENCE EVIDENCE
13. In his defence, the accused has examined Mr.Amarpal as DW1; Ms.Guddi as DW2; Mr.Satish as DW3; and Mr.Kunwar Pal as DW4.
14. Vide statement dated 03.07.2013 of the counsel for the accused, DW2 whose examination in chief was recorded and she was yet to be cross examined, was dropped by the accused as she was not in a position to appear before the Court.
ARGUMENTS
15. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
16. The Additional Public Prosecutor for the State has requested for convicting the accused Sunder Singh for having committed the offence under section 376 of the IPC and submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
17. The counsel for the accused, on the other hand, has requested Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 8 of 52 ::-
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for his acquittal submitting that there is nothing incriminating against the accused on the record. The accused was never residing at B-56, Shiv Ram Park, Nangloi which is the alleged place of incident. There is an ambiguity regarding the place of incident. There is an unexplained delay in the lodging of FIR. There is no medical or forensic evidence against the accused. The evidence of the prosecutrix is unreliable as it suffers from various contradictions and inconsistencies. The investigation has not been properly conducted.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
18. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. 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. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. 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. For this, one has to comprehend the Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 9 of 52 ::-
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totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. 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.
19. Under this sphere, I now proceed to test the submissions of both the sides.
TESTIMONIES OF THE PROSECUTION WITNESSES
20. It is necessary to discuss and analyse the testimony of the witnesses of the prosecution.
Prosecutrix-The most material witness
21. PW5, the prosecutrix, has deposed on oath that she got married to Mr. Sunil about 6 years ago from the date of incident and had two children. Her son was aged about 5 years and her daughter was aged about 2 and half years at the time of incident. As she was not keeping well since she had two ceasarian operations and to regain health, she was staying with her mother for about three years prior to the incident. Accused Sunder Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 10 of 52 ::-
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(who has been correctly identified) used to stay near the house of her mother. Her mother had made the brother in law (Jija) of accused her brother (dharam ka bhai). She did not remember the exact month but it was during early winter on the 9th day of the month in the year 2011. At about 10.30/11.00 AM, she went to the house of accused to give him lassi (butter milk). He was alone at that time. On his asking, she went to keep the jug of lassi on the table and in the meanwhile he bolted the door. On her asking him the reason for bolting the door, he told her that he wanted to talk about something to her. She told him that there was nothing to talk about as she was married and had two children and he should not spoil her life. He closed her mouth and put her on the bed. He removed her salwar and undergarment by breaking the string of her salwar. He removed his clothes and he raped her. The accused threatened her with dire consequences in case she disclosed about the incident of rape to anyone. Thereafter, she went to her mother but could not tell her anything as she was scared that the accused would harm her. She did not remember the date and month as well as the season, it was in the year 2011 when her husband came to her mother's house to take her to Mitrau. He had some doubt on her 'Kuch shaq ho gaya'. He sent her with his younger sister for getting the ultrasound conducted and it was revealed that she had a three months pregnancy. Her husband left her at her mother's residence and told her mother that he shall not live with her. Since then she is living in her mother's house with her daughter. Her son was kept by her husband. Thereafter, when her mother enquired why her husband had left her in her house, she told her about all the facts including her rape by the accused. Her mother called the police at 100 number on which police came and took her to PS Nihal Vihar where Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 11 of 52 ::-
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she gave my statement (Ex. PW5/A). The accused was arrested on the next day in her presence as he absconded on the previous day when she had given her statement to the police. The arrest memo of the accused (Ex. PW5/B) and personal search memo (Ex. PW5/C) were prepared. The police took her in an auto to SGM hospital where she was medically examined. She has prayed that the accused be punished sternly.
22. As the prosecutrix was hostile, the Additional Public Prosecutor has cross examined her. She has admitted that the name of brother in law (Jija) of accused is Amar Pal. She has admitted that her mother had cordial relations with Guddi wife of Amar Pal and Amar Pal and his wife used to take lassi from her mother's house. She has admitted that the accused had come to her mother's house to take lassi but as the same was not prepared he was sent back and she had told him that when it is prepared, she shall bring it to his house. She has admitted that her husband had come in January, 2011 to take her to Mitrau. The police had recorded her statement two or three times after the recording of her statement (Ex. PW5/A). She did not remember whether the police had recorded her supplementary statements on 9.03.2011, 10.03.2011 and 29.03.2011 She has admitted that she had told the police that when she was medically examined in SGM hospital, she had been told that as she was pregnant, in case she wanted to get her abortion done, she should inform the police about the same. She has admitted that she had told the police again that when she was medically examined in SGM hospital, she had been told that as she was pregnant, in case she wanted to get her abortion done, she should inform the police about the same. She had gone Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 12 of 52 ::-
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with the police in search of the accused and had identified him saying that he had forcibly raped her and she is pregnant with his child. She has admitted that she had told the police thereafter that when she was medically examined in SGM hospital, she had been told that as she was pregnant, in case she wanted to get her abortion done, she should inform the police about the same as the DNA test was required to be done. She has admitted that suddenly she had become unwell due to which she could not contact with the police and her child was aborted which was revealed in the ultrasound. She has admitted that she had told the police that she shall tell all the facts in the court. She had not gone to the police to inform them about her loosing the child and her mother had informed about the same. The police had made her sign on some documents in which she had undertaken to inform the police whenever she would get an abortion done. She was carrying a bucket of water and had fallen down. She has been cross examined at length on behalf of the accused.
Public Witness
23. PW9, Ms. Murti, mother of prosecutix, has deposed that the prosecutrix is married with Mr.Sunil Kumar about six years ago and she has two children i.e. one son and one daughter. She was residing with her for the last three years prior to incident along with her daughter. Mr. Kunwar Pal and Mr. Amar Pal were her dharam Bhai. The wife of Mr. Mr.Amar Pal namely Ms.Guddi had good relations with her. The brother of Ms.Guddi namely Mr.Sunder came to her house for taking lassi about three months ago from the day when she returned from her matrimonial house. Her son-in-law became doubtful on her daughter and she was got Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
State versus Sunder Singh. -:: Page 13 of 52 ::-
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medically examined by him. He brought her daughter back to her house. Mr.Sunil told her to ask the prosecutrix regarding the paternity of pregnancy. Thereafter, she asked her daughter about the same and she told her that she had gone to the house of accused Mr.Sunder to deliver lassi and he was alone at his house and she further told that accused committed rape with her daughter. She was threatened by accused Mr.Sunder that if the matter is reported to anybody it will not be good. Her daughter never told her about the incident of rape to her. On 09.03. year she did not remember at around 12:30 mid night, she made a call to the police on 100 number. Police came at her house. Her daughter was taken by the police to SGM Hospital for her medical examination and she also accompanied her. Her daughter was got medically examined by the police. The Lady Police Officer also reached at the hospital and recorded statement of her daughter as well as her statement. Thereafter, she was brought to PS after her medical examination. On 10.03. year she did not recollect, accused Mr.Sunder was arrested. Her daughter accompanied the police at the time of his arrest and she did not accompany her.
24. As PW9 was hostile, she was cross examined by the Additional Public Prosecutor wherein she has deposed that her statement was not read over to her by the police. She has admitted that she had told the police in her statement that Ms.Guddi used to take lassi from her house. She has admitted that she had told the police in her statement that about three months and seven days ago from the date of incident, Mr.Sunder, brother of Guddi came to her house to take lassi but same was not ready and her daughter, the prosecutrix, had informed him that she will deliver lassi at Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
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his house. She cannot say whether the incident happened in the year 2011 as she is illiterate. She has admitted that Mr.Sunil took her daughter to Village Mitron on 11th January. She has admitted that she had told the police in her statement that Mr.Sunil got performed ultrasound of her daughter which revealed three months pregnancy to her and this fact was told to her by Mr.Sunil. She has denied that she did not tell the police that the pregnancy of three months to her daughter was the result of accused Mr.Sunder. She had told the police that accused had raped her daughter. She has admitted that the accused was not present at his house when they visited his house along with the police. She has been cross examined at length.
Police Witnesses-Formal
25. PW1, WCt. Seema, had taken the prosecutrix for medical examination at Sanjay Gandhi Memorial Hospital. After medical examination, she had received eight pulandas and one sample seal which were seized by the IO vide seizure memo (Ex.PW1/A). She had gone along with IO ASI Dalbir Singh, the prosecutrix, her mother and Ct. Akash for search of accused but he could not be traced.
26. PW2, HC Rajesh Kumar, is the Duty officer who had recorded the FIR (Ex.PW2/A) on the basis of rukka which was produced by Ct.
Akash on the direction of ASI Dalbir Singh.
27. PW4, HC Ram Avtar, is the Malkhana Moharrar. On 09.03.2011, ASI Dalbir Singh deposited the case property in Malkhana and Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
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entry of the same were made in register number 19 at serial number 128/11 and 130/11 (Ex.PW4/A and Ex.PW4/B). On 04.05.2011, he sent the pullandas to FSL Rohini through Ct.Ashish vide RC No. 71/21/11 (Ex.PW4/C).
28. PW10, Ct. Ashish, had taken the exhibits of this case from the Malkhana to FSL.
Police Witnesses-Material
29. PW3, ASI Dalbir Singh, has deposed that on 09.03.2011, he was on emergency duty. He received DD No. 5A regarding incident of rape committed at house No. 45-46, Block Shiv Ram Park, Nilothi by one boy namely Surender on which he went there along with Ct. Akash where the prosecutrix and her mother met him. The prosecutrix explained to him about the incident. He called W/Ct. from the police station and Ct. Seema Chahar came from PS Nihal Vihar at the spot. He along with W/Ct., prosecutrix and her mother went to SGM hospital for the medical examination of the prosecutrix. She was got medically examined. He received eight pullandas through Ct. Seema after medical examination of the prosecutrix along with sample seal of the hospital. He recorded the statement of the prosecutrix and made endorsement (Ex. PW3/A) and deputed Ct. Akash for registration of FIR at PS Nihal Vihar. He made search for the accused but he was not traceable. The further investigation of the present case was marked to W/SI Savita. He deposited the pullandas in the malkhana.
Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
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30. PW8, Ct.Basuki, is a witness of investigation including the arrest of the accused.
31. PW13, SI Savita, the second investigation officer of the case has deposed that on 09.03.2011, she was directed by the senior officers to reach at PS Nihal Vihar to carry out the investigation of the present case.
She went to PS Nihal Vihar and received the investigation on the present case after registration of FIR. On receipt of copy of FIR, she along with Ct. Akash went to SGM Hospital, where ASI Dalbir, Lady Ct. Seema, prosecutrix along with her mother were found in the hospital. The prosecutrix was already got medically examined before her reaching hospital. She interrogated the prosecutrix in the hospital. ASI Dalbir handed over MLC of prosecutrix along with seizure memo of the exhibits as well as exhibits to her. Thereafter, she along with all the aforesaid staff and prosecutrix and her mother went in search of accused in the area of PS Nihal Vihar. She went to the house of accused i.e. H. No.B-56, Shiv Ram Park, Nangloi, Delhi but the accused was not found there. Prosecutrix pointed out the place of incident i.e. aforesaid house of accused where she was raped by him and on the pointing out of prosecutrix, she prepared site plan of the place of incident (Ex.PW13/A). Thereafter, the police team returned back to PS along with prosecutrix as well as her mother. She interrogated the prosecutrix and recorded her supplementary statement. She also recorded the statement of her mother. She also recorded the statements of police officials. The prosecutrix had a pregnancy of three months and she was advised that if she will get abortion of the pregnancy she will inform the police prior to the same. She got deposited the exhibits Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
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in the Mal Khana through ASI Dalbir. On 10.03.2011, the prosecutrix came in the PS and informed her that the accused is present at his house. The police team immediately accompanied the prosecutrix and raided the house of accused where he was found. On the pointing out of prosecutrix, the accused was apprehended. After interrogation accused was arrested in the present case vide arrest memo (Ex.PW5/B) and personal search memo (Ex.PW5/C) was also prepared. She also recorded the disclosure statement of accused (Ex.PW8/A). The accused also pointed the place of incident where he raped the prosecutrix and she prepared pointing out memo of the said place (Ex.PW8/C). Thereafter, accused was taken to SGM Hospital in the company of Ct. Basuki Yadav and he was got medically examined. After his medical examination, she received pullandas as well as sample seal, which were seized by her through seizure memo (Ex.PW8/D). She recorded statement of prosecutrix and she was discharged from investigation. Thereafter, the police team along with accused returned back to PS. She deposited the exhibits in the Mal Khana. Accused was put in the lock up. She recorded the statement of Ct. Basuki Yadav. On the next day i.e. 11.03.2011, the accused was produced in the Court and sent to judicial custody. On 04.05.2011, she got deposited the exhibits in the Mal Khana through Ct. Ashish. After receipt of FSL report, she submitted the FSL result in the Court. She also recorded the statement of MHCM and Ct. Ashish. After completion of investigation, the case file handed over to SHO, who submitted the challan before the Court. She has been cross examined at length.
Medical Evidence Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
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32. PW6, Dr. Ajay Kumar CMO at Sanjay Gandhi Memorial Hospital, had medically examined the accused Sunder Singh and had prepared the MLC of the accused (Ex.PW6/A).
33. PW7, Dr.Pratima, Gynae SR in Sanjay Gandhi Memorial Hospital, had medically examined the prosecutrix and had prepared the MLC of the prosecutrix (Ex.PW7/A).
34. PW12, Dr. Sanjay Kumar Jain, Casualty Incharge in Sanjay Gandhi Memorial Hospital was deputed in place of Dr. Niranjan, who has examined the prosecutrix, and proved the signatures of Dr. Niranjan on the MLC (which is already exhibited as Ex.PW7/A).
Forensic Evidence
35. PW11, Ms.L.Babyto Devi, Senior Scientific Officer (Biology), FSL, who had examined the exhibits pertaining to the prosecutrix and accused had given her detailed reports (Ex.PW11/A and Ex.PW11/B).
TESTIMONY OF THE DEFENCE WITNESS
36. It is necessary to discuss and analyse the testimonies of the defence witnesses also.
37. All the defence witnesses have deposed that the accused, at the time of the alleged incident, was residing at B-52, Shiv Ram Park, Nangloi.
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38. DW1, is the brother in law (jija) of the accused and he has deposed that prior to 2008, he was residing at B-56, Shiv Ram Park, Nangloi which he had sold to one Mr.Ayodha Prasad Thakur in 2008 and thereafter started residing at Sarsvati Vihar Colony, Loni, Ghaziabad.
Accused was residing at B-52, Shiv Ram Park, Nangloi as a tenant since 2008 to 2011 in the house owned by Mr.Santosh.
39. DW3, is a resident of the same locality (mohalla) as the accused and he has deposed that the accused was residing at B-52, Nilothi Mor, Shiv Ram Park, Nangloi since 2009. Accused was resided as a tenant since 2009 to 2011 under one Mr.Santosh. Mr.Amarpal, brother in law of accused, shifted to Loni Ghaziabad prior to the incident, may be 3-4 months, and had sold his share of his house to Mr.Ayodhya Parsad Thakur.
40. DW4 is the brother of DW1 Mr.Amarpal. He has deposed that B-56, Shiv Ram Park, Nangloi is the name of his father and they three brothers namely Mr.Brahm Singh, Mr.Ranvir Singh and this witness are residing there. DW1 Mr.Amarpal had sold his share in this house in 2009 to Mr.Ayodhya Parsad Thakur. Accused never resided in their house as a tenant. He was residing at B-52, Shiv Ram Park, Nangloi under the tenancy of one Mr.Santosh Joshi.
IMPORTANT ISSUES
41. The important issues and the points in dispute are being discussed hereinafter.
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IDENTITY OF THE ACCUSED
42. There is no dispute regarding the identity of the accused Sunder Singh. It is also not in dispute that he was known to the prosecutrix prior to the lodging of the FIR. He is also named in the FIR.
43. Therefore, the identity of the accused stands established.
ADDRESS OF THE ACCUSED
44. The prosecution has alleged that the accused was residing at B-56, Shiv Ram Park, Nangloi while it has been argued on behalf of the accused that he was never resinding at B-56, Shiv Ram Park, Nangloi but was a resident of B-52, Shiv Ram Park, Nangloi. Accused has also referred to the evidence of DWs 1, 3 and 4 who have deposed similarly.
45. I find on perusal of the evidence of the accused that no documentary evidence has been produced by him to show that he was ever residing at B-52, Shiv Ram Park, Nangloi. Mr. Santosh, his so called landlord, has also not been produced in evidence. DW1 has deposed that he had sold B-56, Shiv Ram Park, Nangloi and produced the GPA and agreement to sell (Mark A, B and C). However on their perusal it is revealed that Mark A in respect of B-57, Shiv Ram Park Extn., Nangloi, Delhi, Mark B and C ares in respect of 791, Rakbai -100, varg gaj yani-83.61 varg meter, kasra no.231, Saraswati Vihar Colony, Gram Groti Khurd, Pargana, Loni, Tehsil and Zila Ghaziabad and both these properties are different to B-56, Shiv Ram Park, Nangloi.
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46. Further, it cannot be ignored that in his bail application as well as the bail bond the accused had furnished his address as B-56, Shiv Ram Park, Nangloi.
47. It is clear that now a false plea is being taken up by the accused that at the time of incident he was not residing at B-56, Shiv Ram Park, Nangloi, Delhi but at B-52, Shiv Ram Park, Nangloi, Delhi.
48. Therefore, it is clear that at the time of incident, the accused was residing at B-56, Shiv Ram Park, Nangloi, Delhi.
SUNDER OR SURENDER
49. It has been argued by the counsel for the accused that vide DD No.5A dated 009.03.2011, information has been received that rape has been committed by a boy named Surender at House no.45-46, Block Shiv Ram Park,Nilothi. The name of the accused is Sunder Singh and not Surender, which indicates that he has been falsely implicated in this case.
50. The Additional Public Prosecutor has submitted that the names Sunder and Surender sound similar and due to this reason it is possible that the police official who attended the call has not been able to write the name of the culprit correctly.
51. This submission of the Additional Public Prosecutor that the names Sunder and Surender sound similar is acceptable as indeed both sound similar.
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52. However, I find on perusal of the evidence of PW-3 ASI Dalbir Singh, who received DD N0.5A that the name of the culprit was disclosed as Surender. In his cross examination, PW3 has admitted that he neither made any verification regarding the truthfulness of the statement of the prosecutrix nor made any enquiry from the neighbourhood nor made any enquiry
53. Even the IO SI Savita, PW13, has not made any verification about the actual name of the culprit and why the name of Surender was mentioned in DD No.5 dated 09.03.2011.
54. These facts indicate that the possibility of the false prosecution of accused Mr.Sunder Singh cannot be completely ruled out.
AGE OF THE PROSECUTRIX
55. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident as she has herself stated in her complaint (Ex.PW6/A) as well as her statement under section 164 of the Cr.P.C. (Ex.PW6/B) her evidence that she is 20 years old. The MLC (Ex.PX-1) also shows her age as 20 years.
56. Therefore, it is clear that the prosecutrix was a major on the date of alleged offence.
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VIRILITY OF THE ACCUSED
57. The accused has been medically examined by Dr.Ajay Kumar (PW6) vide MLC (Ex.PW6/A) and the accused has preferred not to cross examine him.
58. In the MLC of accused (Ex.PW6/A), it is opined that "There is nothing to suggest that the patient is not able to perform sexual intercourse." It is not the defence of the accused is that he is impotent.
59. This report indicates that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX
60. The MLC of the prosecutrix (Ex.PW7/A) shows that there is no external injury seen. It mentions the history as "sexual assault 3 months back. Person named Sunder (neighbor) at mother house.....". The patient had brought ultrasound dated 04.03.2011. The patient wanted MTP but did not want admission.
61. PW7, Dr.Pratima, has not been cross examined and therefore her testimony and the MLC of the prosecutrix stands impliedly admitted by the accused.
62. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that Sessions Case Number : 10 of 2013.
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absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC-Ex.PW5/A), the probability is that rape is not committed.
63. These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor.
64. It also reveals on the perusal of the MLC of the prosecutrix that she had produced her ultrasound before the doctor. However, this ultrasound has not been produced before the Court. The doctor has mentioned in the MLC that the patient had a pregnancy of 14 weeks. However, no pregnancy test, as such, was conducted of the prosecutrix.
65. Therefore, in such a situation, when the prosecution has not produced nor proved the ultrasound not any pregnancy test of the prosecutrix was conducted, it cannot be said with certainty that the prosecutrix was indeed pregnant when she was examined by the doctor. The fact that the patient wanted MTP but did not want admission in the hospital for the said purpose also indicates her malafide intention. Sessions Case Number : 10 of 2013.
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66. Even in her evidence she was unable to tell the particulars of the hospital, nursing home/doctor where her ultrasound was performed. Although supposedly the ultrasound was produced by the prosecutrix before PW6 but as the same was not produced by the prosecutrix and the prosecution in evidence despite being a vital piece of evidence to prove her pregnancy (it was not even collected during investigation), it cannot be said that she was indeed pregnant.
67. Further, despite the fact that the prosecutrix was aware that she was required to inform the police if she wanted to get an abortion done, she did not inform the police when she allegedly aborted. Even after the alleged abortion till her evidence was recorded before the Court, she did not inform the police or the Court about her alleged abortion. This fact also makes the prosecution version doubtful.
68. There is no medical evidence on the record to show that the prosecutrix ever became pregnant from the accused or aborted subsequently.
FORENSIC EVIDENCE
69. The FSL reports (Ex.PW11/A and Ex.PW11/B) proved by Ms.L.Babyto Devi, Senior Scientific Officer (Biology) FSL (PW11) also do not find mention of any finding against the accused.
70. Human semen was detected only on exhibit '2' which is the Sessions Case Number : 10 of 2013.
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underwear of the accused and it is fully acceptable that his innerwear can have semen. However, semen was not found on the exhibits taken from the prosecutrix. Nothing incriminating against the accused was detected from the samples of the prosecutrix.
71. There is nothing incriminating against the accused in the forensic evidence produced by the prosecution.
DELAY IN FIR
72. The contention of the advocate for the accused that there was a unexplained delay in lodging of the FIR which is fatal is now being taken into consideration.
73. It is claimed by the accused that the FIR has been lodged on 09.03.2011 at 06: 40 hours while the date of alleged offence is about 3 ¼ months earlier and the delay in lodging of the FIR has been not explained by the prosecution, the version of the prosecutrix is false.
74. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the fear of the accused. She was already living in her mother's house and her husband was taking her to the matrimonial home, she did not disclose about the rape earlier. Later her husband took her to the matrimonial home where he had some suspicion and got her ultrasound conducted in which it was revealed that she was pregnant, he again left her Sessions Case Number : 10 of 2013.
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at her mother's house and it was on the enquiry of her mother that she disclosed everything. The delay has been logically explained.
75. The prosecutrix has stated in her complaint (Ex.PW5/A) dated 09.03.2011 that the incident occurred about 3 ¼ months earlier. In her evidence before the Court, she deposes that she did not remember the exact month but it was during the early winter on the 9th day of the moth in the year 2011 when the incident of rape had occurred. It can be mentioned here that from her deposition it seems that the incident occurred in November- December. However when she says specifically that the incident occurred in the year 2011, the period cannot be calculated to November-December, 2010. This discrepancy has not been explained by the prosecution.
76. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
77. In the case reported as State of Rajasthan v. Om Prakash, Sessions Case Number : 10 of 2013.
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(2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
78. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
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79. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
80. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
81. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
82. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
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"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
83. I find on perusal of the record that indeed the criminal action was swung into motion after about 3 ¼ months of 09.03.2011 (as per the complaint of the prosecutrix-Ex.PW5/A); in the year 2011 as per her evidence before the Court. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged incident, she went to the market, was meeting people, etc. She was aware that the police station was near her mother's residence but she preferred not to inform the police. No explanation is coming forth from the prosecution as to why she did not tell anyone about the rape with whom she may have come in contact after the alleged incident. She was not under the control of the accused between this period and could have easily disclosed about the incident if she wanted to.
84. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
85. Therefore, it can be said that the FIR was lodged after a considerable delay which is unexplained and is fatal to the Sessions Case Number : 10 of 2013.
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prosecution story.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
86. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW5, the prosecutrix, as she has taken different stands in her statements.
87. In her complaint (Ex.PW5/A) made on 09.03.2011, the prosecutrix has stated that about 3 ¼ months earlier, accused had come to her mother's house to take lassi (buttermilk) on which she told him that it was not ready. She also told him that when it is prepared, she will bring it for him. When she went to give lassi, the accused was alone in the house. He caught her, put her on the bed, closed her mouth, opened the string of her salwar, removed his clothes and raped her. He then threatened to kill her if she disclosed about the incident to anyone. Due to social image and shame (lok laj aur sharam), she did not tell anyone.
88. In her evidence before the Court as PW5, the prosecutrix has deposed that she did not remember the exact month but it was during early winter on the 9th day of the month in the year 2011. At about 10.30/11.00 AM, she went to the house of accused to give him lassi (butter milk). He was alone at that time. On his asking, she went to keep the jug of lassi on the table and in the meanwhile he bolted the door. On her asking him the reason for bolting the door, he told her that he wanted to talk about something to her. She told him that there was nothing to talk about as she was married and had two children and he should not spoil her life. He Sessions Case Number : 10 of 2013.
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closed her mouth and put her on the bed. He removed her salwar and undergarment by breaking the string of her salwar. He removed his clothes and he raped her. The accused threatened her with dire consequences in case she disclosed about the incident of rape to anyone.
89. There are some material contradictions and improvements in her complaint and evidence regarding the accused bolting the door, his wanting to talk to her, opening/breaking the string of her salwar, telling her mother of the incident after her husband left her in her mother's house, not telling the police of the incident as she was scared, etc which have not been explained and they are too material to be ignored.
90. Further, the evidence of the prosecutrix appears to be unreliable and unbelievable when she has deposed that even after the alleged incident, she continued to talk to the accused. She has deposed that "I used to talk to the accused Sunder prior to the incident and even after that.....He used to call at night and I used to talk to him after the incident.....Prior to the incident, I had gone with the accused to the market once or twice......It is correct that I used to take my daughter for tuitions. I used to talk sometimes to the accused by my daughter used to take tuitions."
91. Further, the prosecutrix failed to shout for help or make any attempt to run away when the alleged incident was committed. This fact is revealed from her cross examination where she has deposed that "I did not shout for help or hit the accused. Due to fear I did not make any attempt to save myself. It is correct that the accused was not carrying any Sessions Case Number : 10 of 2013.
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weapon at that time......I did not raise any alarm even after coming out of the house due to fear of accused." Had she been actually raped, she would have made some effort to save herself by shouting for help, hitting the accused or running away but she did not do anything.
92. As already mentioned above while considering the MLC of the prosecutrix, she had refused to get herself admitted in the hospital. She has deposed that "It is correct that I told the doctor that I do not wish to get my self admitted in the hospital." If she had been raped and had conceived, the prosecutrix would herself have wanted to get herself admitted in the hospital for an abortion but she failed to do so which makes her version unbelievable.
93. Also, the fact that the prosecutrix suffered an abortion appears to be false especially since she has deposed that "It is correct that the doctor had told me that some tests including the DNA test are required to be conducted as I had stated to the doctor that I have a pregnancy of three months." Despite being fully aware that she was required to inform the police about abortion, she failed to do so.
94. Regarding her alleged abortion and stay in the hospital, the prosecutrix has deposed in her cross examination that "I remained admitted in the hospital for few hours as I was admitted in the morning and discharged in the evening and I had also undergone some tests. Again said, I remained admitted for 10-15 days in the hospital. My mother used to be with me in the hospital during the day and returned Sessions Case Number : 10 of 2013.
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home at night. I was unconscious when I was taken to the hospital by my mother and admitted there. The police officials were also there. I had become unconscious at home when I had falling down. I do not remember when I regained consciousness. I cannot say whether I regained consciousness after one day, two days or three days. I did not talk to anyone while I was unconscious." She has however failed to produce her medical record of any pregnancy and thereafter its abortion which makes her version unreliable.
95. Here, it would be relevant to refer to the evidence of IO SI Savita, PW13, who has deposed in her cross examination that "The prosecutrix did not produce any documentry proof regarding her pregnancy. I did not record statements of husband of prosecutrix (name withheld although deposed in evidence) regarding her pregnancy and abortion. I also did not record the statements of any person regarding pregnancy of prosecutrix. It is correct that the doctor while examining a rape victim also conducts the pregnancy test. Neither the prosecutrix nor her mother nor the doctor had given me any report regarding the pregnancy test of prosecutrix." Also PW3, ASI Dalbir Singh has deposed that "Neither the prosecutrix nor her mother had given him any document or any proof regarding her pregnancy. Prosecutrix also did not give him any ultrasound report and X-ray showing her pregnancy." It is clear that as neither the prosecutrix furnished any proof of her alleged pregnancy nor the same was collected during investigation, it becomes difficult to believe that the prosecutrix was ever pregnant.
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96. Her version that she was under the fear of the accused also appears to be wrong as she has deposed that "It is correct that when I was medically examined, there was no threat, pressure or coercion on me and I was mentally in a fit condition. It is correct that when I gave my statement to the police, there was no threat, pressure or coercion on me and I was mentally in a fit condition. I gave the correct answers to the queries of the doctor at the time of my medical examination."
97. The prosecutrix has also deposed that "I had stated to the police that I did not disclose the fact of committed raped upon me by accused Sunder Singh as I was scared (confronted with the statement Ex.PW5/A where it is not so recorded)." She has made several improvements in her evidence including about being threatened by the accused which make her version doubtful.
98. The prosecutrix did not call the police even after leaving the house of the accused after the incident when she was not under his control. She did not disclose about the alleged incident to anyone which also makes her version doubtful.
99. The version of the prosecutrix that she had gone to her husband's house appears to be untrue from her own evidence when she has deposed that "It is correct that since 3 years prior to the lodging of the case, I am staying in my mother's house and my husband has not come to take me to the matrimonial home. .......It is correct that I have stayed with my mother for three years and my husband used to come to take me Sessions Case Number : 10 of 2013.
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to the matrimonial home. I used to go sometimes but used to return as my husband is not working. It is wrong to suggest that my husband never came to my mother's house to take me to the matrimonial home. Again said, my husband did not come to take me but he used to come to know about the welfare about our daughter. It is correct that I did not go to my husband's house for three years." If she had not gone there, then how could her husband have any doubt on her to get her ultrasound conducted.
100. The prosecutrix has claimed that "My mother runs a dairy and used to live in the same house. Her house is built on a 63 Sq. Yards plot. At the time of incident, she had one cow and one calf (katia). My mother used to sell the milk of the cow." However, it is an admitted fact by PW9, the mother of the prosecutrix, that "It is correct that I am implicated in several cases under the Excise Act in PS Nangloi and PS Nihal Vihar. ....Earlier I used to sell liquor but now I do not sell it and all the cases against me are over. I was convicted in one case and fined Rs.700/- while in the others I have been acquitted." Neither the prosecutrix nor her mother produced any document to show that they were maintaining cattle or supplying buttermilk (lassi). They were not even able to produce any licence of the cattle or any challan regarding their maintaining cattle. The prosecutrix has also admitted that there is no proof of running a dairy when she has deposed that "I do not have any proof to show that my mother is maintaining cattle and running a dairy." In such a situation, it is not proved beyond all shadow of doubt that the prosecutrix had indeed gone to give buttermilk to the accused when she was allegedly Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
FIR No. 63/11, Police Station Nihal Vihar, Under sections 376 of the Indian Penal Code.
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raped.
101. It is also surprising to note that the prosecutrix does not remember her own mobile phone number but she remembers the numbers of the accused. She has deposed that "I had a mobile phone earlier. But I do not remember whether it was mobile number is 954055399. It is correct that earlier I was using mobile number 954055399. I am aware that the accused has a mobile phone with the numbers 9540502918 and 9990862257."
102. The prosecutrix has vitiated the MLC by deposing that "The doctor had only asked my name and address. The doctor did not ask me about what had happened with me for which I had been brought for medical examination. My mother told about the incident to the doctor as per the information which I had given to her." If the prosecutrix did not tell anything to the doctor, then how the MLC was prepared with the history being given by the prosecutrix remains unexplained by the prosecution and no weightage can be given to the MLC (Ex.PW7/A).
103. The prosecution has failed to furnish any explanation in respect of the contradiction, discrepancies and improvements in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
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overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that the present rape case was lodged probably for some extraneous reasons.
104. It can be seen from the evidence of the prosecutrix that the allegations leveled by her of rape by the accused are false and unbelievable. It appears that she has not been raped by the accused. It also cannot be ignored that the prosecutrix (PW5) and her mother were hostile to the prosecution case and had to be cross examined by the Additional Public Prosecutor to elicit certain facts which also throw a doubt on their version.
105. The prosecutrix has deposed that on her questioning, he threatened that he shall kill her. However, the effect of the alleged threat, has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused as she remained in contact with the accused even after the alleged rape and there was no reason why she could not have disclosed about the alleged threat to the neighbours, family, police, doctors and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that nothing wrong has happened to her.
Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
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106. In the light of the aforesaid nature of deposition of the prosecutrix, PW5, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
107. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
108. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
109. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is Sessions Case Number : 10 of 2013.
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entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
110. If one integral part of the story put forth by a witness- prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
111. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that the of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable Sessions Case Number : 10 of 2013.
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doubt against the accused and not merely dwell upon the shortcoming of defence.
112. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness.
113. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
114. Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 376 of the IPC as the Sessions Case Number : 10 of 2013.
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prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was raped by the accused.
115. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
116. This brings me to the final question as to whether it was she was raped and threatened by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been raped by the accused but there are several contradictions, inconsistencies and discrepancies in her statements which remain unexplained and indicate that no such offence was ever committed by the accused.
117. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the Sessions Case Number : 10 of 2013.
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guilt of accused.
118. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
119. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
120. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of rape and the accused merits to be acquitted for the offence under section 376 of the IPC.
MENS REA / MOTIVE
121. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the Sessions Case Number : 10 of 2013.
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accused and inconsistent with the hypothesis of his innocence.
122. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and un-nameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
123. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a Sessions Case Number : 10 of 2013.
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criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
124. In the present case, a story has been projected that the accused raped the prosecutrix about 3 ¼ months prior to 09.03.2011 and this version appears to be untrue as there is no reason why he would do so.
125. There does not appear to be any criminal intention and mens rea on the part of the accused.
DEFENCE OF THE ACCUSED
126. The prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused. The prosecution cannot take advantage of the weakness of the defence of the accused.
127. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case by the prosecutrix as the prosecutrix wanted to marry him despite knowing that she herself was already married. She was pressurizing him but he refused to marry her and due to this reason she has falsely implicated him in this case.
Sessions Case Number : 10 of 2013.
Unique Case ID Number : 02401R0276562011.
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128. Suggestions to the same effect have been put to the prosecutrix which of course have been denied by her. However, as mentioned above, the evidence of the prosecutrix is neither reliable nor believable nor trustworthy. The accused also failed to lead any evidence to substantiate his stand. He did not himself step into the witness box to prove his defence.
129. Although the defence of the accused has not been proved but more importantly, the version of the prosecutrix and the prosecution cannot be relied upon, as discussed above.
INVESTIGATION
130. The investigation conducted in the present case has been deposed by police witnesses. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
131. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.
132. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important. Inversely, when the version of the prosecutrix is unreliable and unbelievable, then the Sessions Case Number : 10 of 2013.
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investigation is not too material.
133. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
134. Therefore, the investigation is not being taken into consideration although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable. However, there is nothing on the record to indicate that the investigation has not been fair or proper.
CONCLUSION
135. Since the prosecutrix as PW5 is neither reliable nor believable as there are overwhelming contradictions in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
136. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape of the prosecutrix by the accused. The gaps in the Sessions Case Number : 10 of 2013.
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prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
137. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
138. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Sunder Singh stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor.
139. It is also clear that there is an inordinate unexplained and unjustified delay in making the complaint of rape and in lodging the FIR.
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It also stands established that the accused had not raped the prosecutrix. There is no medical or forensic or circumstantial evidence to show that such an offence has ever been committed. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
140. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped by the accused.
141. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has miserably failed to bring home the charge against the accused.
142. Accordingly, Mr.Sunder Singh, the accused, is hereby acquitted of the charge of the offence punishable under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
143. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
SOME OBSERVATIONS REGARDING THE RAPE CASES
144. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be Sessions Case Number : 10 of 2013.
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convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and not worthy of credence, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
145. Under these circumstances, the task of both the Investigating Agency and the Court becomes onerous so as to ensure that on one hand the existing penal provisions are not abused so as to implicate innocent persons whereas on the other hand, to ensure that no guilty is left scot free.
146. This case is just one of the many cases in this Court where the evidence of the prosecutrix is not reliable due to which an innocent man has to undergo the rigours of investigation and trial before he is declared innocent holding that the allegations against him are false. In my considered view, it is time that we as a Civil Society stand up not to only protect, shelter and rehabilitate a victim of rape but also to protect and shelter an accused against whom false allegations of rape have been levelled.
147. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
148. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
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149. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 21st day of November, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
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