Delhi District Court
State vs . Sunil S/O Yogender Sah on 20 August, 2010
IN THE COURT OF SH.R P PANDEY: ADDL.SESSIONS JUDGE-
OUTER (II): ROHINI COURTS:DELHI
SC No. : 101/08
FIR NO. : 296/08
PS : Narela
U/s : 376/506/384 IPC
State Vs. Sunil S/o Yogender Sah
R/o-H.No.570, Pocket-11
Sector-A-6, Delhi
Date of Institution - 30.09.08
Date on which the case - 11.08.10
was reserved for order
Date of Decision - 20.08.10
JUDGMENT:
1. Accused/Sunil has been charge sheeted by Police Station- Narela to face trial for the offence punishable under Section 376/506/384 IPC.
2. Brief facts of the case are that FIR was registered on the basis FIR No.296/08 Page No.1 of 29 of complaint given by complainant/prosecutrix regarding commission of rape by accused upon her without her consent and also gave criminal intimidation (her name is deliberately not being mentioned as she is victim of a sexual offence and she will be referred as 'prosecutrix' in the judgment). Prosecutrix/victim was medically examined at SRHC Hospital. Accused was arrested and interrogated and after completion of investigation accused was charge sheeted under Section 376/506/384 IPC. FIR reiterates the same facts as of statement of complainant.
3. Ld.MM complied with the provisions of Section 207 Cr.PC and committed the case to the court of Sessions for trial, which in turn was assigned to this court.
4. Vide order dated 27.01.09, charge was framed against accused for offences punishable under Section 328/376/342/506 IPC, to which accused pleaded not guilty and claimed trial.
FIR No.296/08 Page No.2 of 29
5. Prosecution, in support of its case, examined 14 witnesses.
6. Statements of PW-1/Prosecutrix and PW-2/Smt.Sarita Devi will be discussed in detail at the time of appreciation of evidence as the entire prosecution case is based on their statements.
7. PW-3/L-Ct.Manita got medically examined prosecutrix at Satyawadi Raja Harish Chander Hospital, Narela.
8. PW-4/Ct.-Ashfaq Ali got medically examined accused/Sunil at Satyawadi Raja Harish Chander Hospital, Narela and doctor had handed over him two pulindas and one sample seal and he handed over the same to the IO which were taken into possession vide memo, Ex.PW-4/A.
9. PW-5/Dr.Rajesh Kumar has proved the MLC of accused and FIR No.296/08 Page No.3 of 29 prosecutrix as Ex.PW-5/A & B.
10. PW-6/WHC-Sneh Lata has proved the photocopy of FIR as Ex.PW-6/A and copy of DD entry no.21A as Ex.PW-6/B.
11. PW-7/Dr.Priya Pancholi has proved the handwriting and signature of Dr.Sushma on the MLC of patient Sushma as she had been deputed by medical superintendent for the said purpose because Dr.Sushma was on maternity leave and unable to appear. As per MLC there was no bruises or scratch anywhere on the body of prosecutrix and her hymen was not intact and vagina admitted two fingers.
12. PW-8/Smt.Najma Khan was working in NGO/Nav Shrishti Sanstha, Nangloi and she deposed that prosecutrix came to their office and after giving proper counselling, she disclosed about the incident of rape by accused. She accompanied prosecutrix with her mother to PS:Narela where FIR No.296/08 Page No.4 of 29 W/ASI-Raj Bala recorded the statement of prosecutrix in her presence. Prosecutrix was medically examined at Satyawadi Raja Harish Chand Hospital and IO made enquiry from prosecutrix and her mother in her presence.
13. During cross-examination she deposed that prosecutrix along with her mother had not come to her at their Nangloi office but she came to her in their office situated at Narela. There was no record of counselling on the file. She also deposed that they remained in SRHC hospital for about two hours on 27.06.08 but MLC of prosecutrix was not prepared on that day.
14. PW-9/HC Virender Kumar was MHC(M) at the relevant time and he has proved the relevant entries in register no.19 as Ex.PW-9/A.
15. PW-10/Ct.Raghunath joined the investigation with IO of the FIR No.296/08 Page No.5 of 29 case and accused/Sunil was arrested in his presence vide memo, Ex.PW-1/B and personal search of accused was also taken vide memo, Ex.aPW-1/C.
16. During cross-examination he deposed that he joined the IO from his beat at about 11.00 a.m./12.00 noon and that IO met him in beat booth of his area and prosecutrix along with her parents were with the IO at that point of time. He also deposed that IO was already present at booth before his arrival as he was on patrolling duty. He deposed that when accused was arrested from his house his father and brother were present. He further deposed that his house is one room house with some partition. He volunteered that it is a J J type of residential area. He deposed that statement of prosecutrix and himself were recorded by IO in the street of the house of accused and accused was arrested at about 11.00 a.m or 12. noon.
17. PW-11/Smt.Parmeshwari Mehta, Principal, Nigam Prathmik Vidyalaya, Narela, has proved the admission record regarding date of birth FIR No.296/08 Page No.6 of 29 of prosecutrix as 05.04.93 as Ex.PW-11/A (two sheets). She also proved the photocopy of the school leaving certificate as Ex.PW-11/C.
18. PW-12/Smt.Savitri Devi, Principal, MCD Primary School, Delhi has also proved the admission record regarding date of birth of prosecutrix as 05.04.93 as Ex.PW-12/A.
19. PW-13/ASI-Raj Bala, IO of the case has proved the entire investigation of the case.
20. During cross-examination she deposed that statement of Smt.Nazam Khan, mother of prosecutrix and prosecutrix were recorded at the spot and she did not remember if she recorded the statement of any other witnesses at the spot and that she did not make any enquiry from father of prosecutrix. She also deposed that they reached at the spot at about 1.30 p.m and the gali in which the house of prosecutrix and accused are situated FIR No.296/08 Page No.7 of 29 is of 5ft wide. She deposed that house of accused was third or fourth from the house of prosecutrix and the house of the prosecutrix was at the end of gali i.e corner and the house of accused was opposite to his house at some distance and the house of accused was consisting of one room. She also admitted that if any one raises alarm in the house of accused that will be audible in the house of prosecutrix due to the short distance. She also deposed that no missing report was given by mother of prosecutrix and that no witness or prosecutrix gave any information about the missing of prosecutrix. She also deposed that site plan was prepared at the instance of prosecutrix and she also obtained her signature on the site plan.
21. IO has further deposed in her cross-examination that she remained at the spot for about 2 ½ hours and that she had no knowledge whether NGO Nazma Khan gave any counseling to prosecutrix prior to giving her statement. She stated that she did not remember the time of medical examination of prosecutrix. She also deposed that proceedings and FIR No.296/08 Page No.8 of 29 writing work was conducted in the house of accused. She stated that she did not know if either of the parties had visited the police station prior to the date of FIR in connection with same incident and that she did not carry enquiry about this fact from any of the witnesses. She further deposed that statement of prosecutrix u/s 164 Cr.PC was recorded by Ld.MM, on 28.06.08 and after that she had visited prosecutrix only once for collecting her date of birth certificate.
22. PW-14/Sh.Manish Gupta, Ld.ARC has proved the statement of prosecutrix recorded u/s 164 Cr.PC as Ex.PW-1/D.
23. Entire incriminating evidence which had come out against accused was put to him under section 313 Cr.PC and he has denied all the material put to him as incorrect and when he was asked as to whether anything else he wanted to say about this case, he stated that he was innocent and has been falsely implicated in this case by prosecutrix and her FIR No.296/08 Page No.9 of 29 mother in connivance with police because there was a property dispute between him and family of prosecutrix prior to the incident and one Nazma Khan was also with prosecutrix and her mother who falsely implicated him in this case in order to grab his money of Rs.80,000/-.
24. In his defence, accused/Sunil examined two witnesses. DW- 1/Vir Bhan UDC/Record Clerk, Satyawadi Raja Harish Chander Hospital has proved the photocopy of MLC bearing no.10770/08 of accused as Ex.DW-1/A.
25. DW-2/Smt.Kaushalya is sister of accused. She deposed that a quarrel was going on between his brother Sunil and her elder sister Sarita and the reason of the quarrel was a plot which was with her sister/Sarita and was sold to accused/Sunil for an amount of Rs.80,000/- and the value of the plot sold to accused/Sunil by Sarita had increased to about 2 or 2 ½ lacs and the transaction was a oral transaction. She further deposed that this dispute FIR No.296/08 Page No.10 of 29 was going on between Sunil and Sarita for about 4-6 months prior to the date of incident of quarrel.
26. During cross-examination she deposed that she had no talking and visiting terms with her sister Sarita and her family for about one year and that she had not made any complaint, either in writing or oral, to any senior officers of police or any other authority regarding the arrest of accused/Sunil in this case by police.
27. I have heard the arguments advanced by Sh.Ram Pyara, Ld.Addl.PP for the State and Sh.Ajay Khatana, Ld.Counsel for accused and carefully gone through the entire records.
28. The testimony of prosecutrix examined as PW-1 is of vital importance for recording findings on charges against accused. She has deposed that her father is running a general store from residence and her FIR No.296/08 Page No.11 of 29 mother is a housewife. She stated that accused Sunil is her maternal uncle (Mama), which is an admitted fact. She deposed that on 15.05.08 at about 12.30 p.m when she was standing outside her house, accused Sunil, who is also residing in the same gali near her house, called her inside his house, made her to sit there and gave her something to drink which was like liquor and he also took the same drink. She started feeling giddiness and then accused Sunil bolted the door of his house from inside and committed the sexual intercourse with her against her wishes and will. When she tried to raise alarm accused Sunil gagged her mouth and said that if she will tell this fact to anybody he would kill her family and will not allow her marriage to take place. For some days she did not tell this fact to anybody due to fear but on 27.06.08, she told this fact to her mother who along with NGO persons took her to police station Narela where her statement, Ex.PW-1/A was recorded, accused Sunil was arrested, she was medically examined and her statement, Ex.PW-1/D was recorded before Ld.MM u/s 164 Cr.PC. FIR No.296/08 Page No.12 of 29
29. When above deposition made by prosecutrix is read along with her own cross-examination, statement made to police u/s 161 Cr.PC and before Ld.MM u/s 164 Cr.PC and statement of other witnesses, I notice following facts which will help the court in arriving at conclusion on guilt of accused Sunil.
30. In her examination-in-chief prosecutrix stated that accused had given her something to drink which was like liquor and he also consumed the same drink and that she started feeling giddiness. During her cross- examination she stated that the bottle of wine and glass were kept there in the house of accused Sunil at that time. She stated that accused forced her to drink only one sip of the liquor type substance. In her statement to police, Ex.PW-1/A she had not mentioned that the 'liquor' type substance was forcibly administered to her or that she took only one sip of the drink. In statement u/s 164 Cr.PC put as Ex.PW-1/D she had not stated that it was a 'liquor type' substance but there she mentioned that it as a bitter taste FIR No.296/08 Page No.13 of 29 substance. In her examination-in-chief she stated that she started feeling giddiness whereas in her statement, Ex.PW-1/D she stated that she fell asleep. But in her statement to police, Ex.PW-1/A, she did not say any of these things. Although, there is no scientific evidence on record to show that any spurious substance was administered to prosecutrix but even if it is assumed for the sake of arguments that something was administered to her by accused, when both of them had consumed the same substance it could not be a sedative and one sip of wine could not have caused feeling of giddiness/sleep or would have caused hurt to prosecutrix or facilitated accused to commit offence of rape upon prosecutrix. In view of nature of testimony and changing versions of prosecutrix as discussed above, it can not be concluded that prosecutrix was administered any intoxicating or sedative or spurious substance by the accused with intent to cause hurt or facilitate commission of rape upon her.
31. In her examination-in-chief prosecutrix has stated that accused FIR No.296/08 Page No.14 of 29 took her inside his house on 15.05.08 at 12.30 p.m while she was standing outside her house. In her statement u/s 164 Cr.PC she stated that on 15.05.08 while children were playing and she was standing, her maternal uncle accused Sunil, called her by indication and she went to his house. In her statement u/s 164 Cr.PC she had stated before Ld.MM that accused Sunil had done some access to her on 11.06.07 and had sexual intercourse with her 8-10 times. Under such circumstances, it does not suit to human reason as to why prosecutrix would had gone to house of accused on 15.05.08 without there being any compulsion to do so.
32. Mother of the prosecutrix, namely, Sarita was examined as PW-
2. She had deposed that she did not remember the date and month but during the summer vacations after 2008 her daughter i.e prosecutrix told her at about 10.00/11.00 a.m that a day before that day accused/Sunil had taken her to his house and after administering her some intoxicating drink he committed rape upon her. She further deposed that her neighbours had FIR No.296/08 Page No.15 of 29 collected there and they also assaulted the accused and on that day she had gone to PS:Narela where police did not register a case and subsequently she along with NGO people again went to PS:Narela after about 40 days of the incident and then FIR was registered and accused was arrested.
33. During her cross-examination she had stated that police had come to her house when she made a call at no.100 and she had told to police about missing of her daughter and given a photograph of her daughter i.e prosecutrix but police did not take the same and did not record her statement. She volunteered that police had got the matter compromised and her daughter i.e prosecutrix was returned back to her custody from custody of accused/Sunil and accused was told to go to his village within one or two months but he did not go. It is worthwhile to note that as per version of prosecutrix for some days, she did not tell this fact of rape to anybody due to fear and on 27.06.08, she told this fact to her mother. Thus, there is a clear contradiction between testimony of prosecutrix and her mother about FIR No.296/08 Page No.16 of 29 the date on which prosecutrix had disclosed the fact of rape to her mother. Further, while prosecutrix deposed that she did not remember as to when she got out from house of accused/Sunil and that from there she had gone to house of Shakila whose husband had taken her to her house at 11.30 p.m., her mother PW-2/Sarita had deposed in her cross-examination that she had called police at no.100, police came and got the matter compromised and her daughter was returned back. Thus, there is material variance in the version of both the witnesses on the issue as to how prosecutrix returned back to her house.
34. Further, it has come in cross-examination of prosecutrix that on 15.05.08 when she returned to her house at 11.30 p.m., a policeman had asked her as to where she had been till such late evening and then she had replied that she was in the neighbourhood. She deposed that she did not know as to who had called the policeman. In the statement of prosecutrix, it is coming forward that police had reached at the house of prosecutrix on FIR No.296/08 Page No.17 of 29 15.05.08 but IO did not enquire this aspect, otherwise it would have become more clear as to why police had gone there on 15.05.08 and what was the nature of dispute between accused and family of prosecutrix and what kind of compromise was reached between them as deposed by PW-2/Sarita.
35. PW-2/Sarita has stated during her cross-examination that for the first time she had gone to NGO whereupon the matter was settled between her and accused/Sunil but she did not remember the date. She then deposed that for the 2nd time she went to NGO when accused had not followed the compromise but she did not remember the date. She stated that for the first time when she went to NGO with her daughter i.e prosecutrix to the office of NGO which was situated at HUDCO in Narela and one Ms.Khajanti had met her. She stated that she remained in NGO office for about half an hour and about 10 persons were there in the NGO office, who were participating in the settlement. She stated that when 2nd time she visited the NGO her daughter i.e prosecutrix, Ms.Shakila and Ms.Khajanti FIR No.296/08 Page No.18 of 29 were also with her and when the settlement could not be arrived at, she got registered the present FIR. She also deposed during cross-examination that public persons had given beatings to accused/Sunil because he did not comply with the compromise and did not leave the place within the time given to him i.e. 1-2 months. She volunteered that in fact she wanted accused/Sunil to stay away till her daughter could get married. On a court question, she clarified that she had apprehension from accused/Sunil that he may take away her daughter i.e prosecutrix.
36. It has again and again surfaced in statements of prosecutrix and her mother that some compromise had taken place between accused and family of prosecutix but no investigation was directed towards bringing out the actual nature of dispute and compromise reached between parties. Thus, a possibility that family of accused wanted to oust accused/Sunil from his house for the reason stated by him, can not be ruled out. FIR No.296/08 Page No.19 of 29
37. PW-2/Smt.Sarita also deposed during her cross-examination that prosecutrix had told her for the first time about the rape committed upon her by accused on the next day of morning after she (prosecutrix) had returned back. She deposed that her daughter went missing at 12.00 noon and returned back in the night at about 3.00 a.m by the police officials.
38. When we read the testimony of PW-1 and PW-2 along with testimony of IO of the case i.e PW-13/ASI-Raj Bala, we find that she has not conducted any investigation about the allegation that on 15.05.08 when accused/Sunil had called prosecutrix in his house, a PCR call was made by her mother or that some police official had visited the spot and got recovered the prosecutrix to her mother or that PW-2/Sarita had visited the police station at that time for registration of FIR against the accused/applicant. Rather, during cross-examination IO had stated that she did not know if either of the parties had visited police station prior to the FIR No.296/08 Page No.20 of 29 date of FIR in connection with some incident. She also stated that she did not make any enquiry about this fact from any of the witnesses. Thus, the allegations of PW-1 and 2 that soon after the occurrence i.e on 15.05.08, the police had visited the house of accused and prosecutrix or her mother had visited the police station for registration of the case or a PCR call was made or prosecutrix was recovered from house of accused or handed over to her family has neither been averred by the prosecution nor proved in evidence.
39. The last incident of alleged rape had been committed upon the prosecutrix by accused on 15.05.08 and the FIR in this respect was got registered on 27.06.08 but there is absolutely no explanation as to why so much delay has been caused in registration of FIR when prosecutrix had told her mother about this fact on the very next day. Then, there is reference of some settlement taking place between the accused and the family of prosecutrix with the help of police and NGO people but the version of the mother of prosecutrix is that she was apprehending the interferrence by FIR No.296/08 Page No.21 of 29 accused in marriage of the prosecutrix, whereas accused/Sunil is again and again agitating that he had a dispute with father of the prosecutrix from whom he had purchased the house ad-measuring 22 sq.yds for Rs.80,000/- which family of the prosecutrix wanted to usurp as there was no written agreement and price of the plot of land had escalated to Rs.2 or 2 ½ lacs.
40. Even prosecutrix examined as PW-1, had admitted in her cross- examination that the house in which accused/Sunil was residing was purchased by her father and subsequently it was purchased by accused/Sunil for Rs.80,000/-. She further stated that she could not say that the said house was not got registered by her father in the name of accused after selling it to him. She denied a suggestion that there was a quarrel between her father and accused/Sunil as her father used to ask accused/Sunil to vacate the house whereas accused/Sunil used to ask her father to refund his money. She also denied a suggestion that on this issue the dispute had reached to such a dimension that once police had also come.
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41. Thus, there appears to be some dispute between the accused and the family of prosecutrix because even prosecutrix had admitted that on 15.06.08, her parents had gone to the house of accused/Sunil as his brother had promised at PS:Narela that he would send his brother accused/Sunil to his native place but he did not leave the house. She further stated that she did not know as to what happened on that day. She denied a suggestion that her parents had given beatings to accused/Sunil on that day. She however admitted that police had come there on that day. She stated that she did not know whether her father had given threatening to accused/Sunil for falsely implicating him in a false case and that she did not know that her Chachi/Kaushalya had taken accused/Sunil to SRHC Hospital, as he had sustained injuries due to beatings given to him by her parents.
42. Besides prosecution evidence, DW-1/Sh.Vir Bhan, UDC/Record Clerk, SRHC Hospital was also examined, who proved MLC FIR No.296/08 Page No.23 of 29 of accused/Sunil bearing no.10770/08 dated 09.06.08, whereby accused/Sunil Kumar was taken to the hospital due to some injury on his person with alleged history of physical assault. Further, accused got examined DW-2/Smt.Kaushalya, who is sister of accused/Sunil. She is also sister of mother of prosecutrix/Sarita and she has deposed that in the month of June 2008, the date of which she did not remember, in the morning when she was about to leave her house for work, somebody had informed her that some quarrel was going on between her brother Sunil and her elder sister/Sarita and, therefore, she immediately went to the house of accused/Sunil and saw that father of prosecutrix was threatening accused and asking him to either vacate the house in which accused was living or they will beat accused or falsely implicate him in some case. When she tried to pacify, her sister/Sarita had threatened her. She stated that her babhi-Dropati had also tried to interfere and she along with accused/Sunil had sustained injuries. She had taken them to SRHC Hospital. She has stated that reason of the quarrel was a plot which was with her sister/Sarita FIR No.296/08 Page No.24 of 29 which was sold to accused/Sunil for Rs.80,000/- on payment of entire consideration and the possession of the said plot was also handed over to accused/Sunil in which he was residing at that time but no document of title was executed by Sarita or her husband in favour of accused so accused was insisting for documents in his favour and her sister and her family wanted that accused should vacate the plot and leave the same. She also stated that value of the plot sold to accused by her sister Sarita had increased to about 2 or 2 ½ lacs and since this transaction was oral, therefore, Sarita and her family had become dishonest and wanted to take back the plot. She has also stated that this dispute was going on between accused and Sarita for 4-6 months prior to the date of incident of quarrel.
43. Thus, it may be seen that there was some dispute between the family of the prosecutrix and accused/Sunil, which is not clear as this aspect had not been investigated. PW-1 & 2 have stated that dispute was about the fact that family of the prosecutrix was apprehending that accused may take FIR No.296/08 Page No.25 of 29 away the prosecutrix or create hindrance in her marriage but the defence of accused/Sunil is that he was being threatened by the family of the prosecutrix for vacating the plot of land which he had purchased from father of the prosecutrix, on which he was residing at the time of incident. As per the testimony of prosecution witnesses, the family of the prosecutrix wanted the accused to leave for his village which raises a strong suspicion that there could be some ulterior motive behind registration of the case by the family of the prosecutrix against accused. There is absolutely no explanation by the prosecution for delay of 40 days caused in registering the FIR after the last incident of rape. There is also anamoly in the statement made by the prosecutrix to the IO, statement made by her u/s 164 Cr.PC and deposition made before this court about the number of incidents of rape because in her statement to the IO and before this court she has not narrated the previous incidents of rape with her but in her statement u/s 164 Cr.PC recorded before Ld.MM, she had stated that accused had also made physical relations with her for about 8-10 times prior to the present incident on 15.05.08. She FIR No.296/08 Page No.26 of 29 had also stated that prior to 15.06.08, accused had also done some access to her on 11.06.07, i.e about a year prior to incident, but she did not say so in her deposition before this court. MLC of the prosecutrix also does not help the court much because it was admittedly prepared after about 40 days of the last incident of rape and as per MLC, Ex.PW-5/B as narrated by PW- 7/Dr.Priya Pancholi, hymen of prosecutrix was not found intact and her vagina admitting two fingers.
44. There are other anamolies also in the prosecution case. Accused is residing in same narrow street in which prosecutrix is residing at a very short distance and prosecutrix is saying that she had raised alarm while in the house of accused/Sunil on 15.05.08. Their houses are small houses built on a plot size of 22 sq.yds. Father of prosecutrix was keeping a general merchant shop in his house and children were playing in gali at the time of incident. As per IO, their street was 5 ft wide, house of accused was 3rd or 4th from the house of prosecutrix on opposite side, his house consisted FIR No.296/08 Page No.27 of 29 of only one room and if any one raised alarm in house of accused, it would be audible in the house of prosecutrix due to short distance. While the prosecutrix deposed in her cross-examination that she never visited office of Nazma (NGO) and that Nazma had come to her house, PW-8/Najma Khan deposed that prosecutrix along with her mother Sarita came to her office on 27.06.08 and she disclosed about the incident and then she accompanied by prtosecutrix and her mother went to PS:Narela where statement of prosecutrix was recorded by IO/WASI-Raj Bala and she accompanied them to SRHC Hospital, Narela formedical examination of prosecutrix. During her cross-examination, PW-8/Najma has deposed that she remained in hospital for about 2 hours on 27.06.08 but on that day MLC of prosecutrix was not prepared and that they were directed to come on next day i.e 28.06.08. But MLC of prosecutrix, Ex.PW-5/B show that it was prepared on 27.06.08 itself.
45. It is settled position of law that if testimony of prosecutrix FIR No.296/08 Page No.28 of 29 inspires the confidence of the court, its corroboration by other evidence is not required for holding accused guilty of offence punishable u/s 376 IPC. But in view of the glaring and material contradictions which have been observed in testimony of the prosecutrix vis-a-vis other prosecution evidence, as pointed out above, I find that testimony of the prosecutrix and her mother does not at all inspire the confidence to hold accused guilty of offences charged against him. I thus find accused/Sunil entitled to benefit of doubt and acquit him of the offences charged against him. Accused/Sunil is in judicial custody. He be released forthwith unless required in any other case. File be consigned to the record room.
Announced in the Open (R P PANDEY)
Court on 20.08.2010 ADDL.SESSIONS JUDGE (O)-II
ROHINI COURTS:DELHI
FIR No.296/08 Page No.29 of 29