Delhi District Court
State vs Accused on 28 January, 2014
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0349932012 SC No.37/13 Date of Institution : 10.01.2013 FIR No.105/12 Date of Argument : 27.01.2014 PS Shahdra Date of Order : 28.01.2014 U/S 376/328/420/366/506 & 201 IPC State Versus Accused Saleem Khan @ Sonu S/o Zameel Ahmad, R/o Y-18, DDA Flats, Asaf Ali Road, Turkman Gate, Delhi. JUDGMENT:
The facts in brief of the prosecution case are that ----x---- D/o Late ----y----, aged 25 years, R/o
---------------------------------------z-----------------------------------------, herein after referred to as the prosecutrix was residing with her father namely ----y----, who was the priest in the temple of -------------------------------z2--------------------------- and the prosecutrix was earning her livelihood by singing in the Jagran/chowki, etc. Sonu @ Saleem Khan, herein after referred to as the accused met her in the year 2005 and introduced himself to her as the Hindu boy and told his name to her as Sonu and proposed her for friendship.
SC No.37/13 State vs. Saleem Khan @ Sonu Page 1 of 37Initially, the prosecutrix declined his proposal but on his persistent request and chasing her, she agreed to become his friend. Thereafter, the accused started visiting her at her residence and also started taking interest in prayer (pooja path) to show that he was a faithful Hindu. Father of the prosecutrix who was aged 90 years used to visit his native place at Kanpur to meet his mother who was permanently residing there. In the month of June, 2008 father of the prosecutrix had gone to Kanpur. The accused suddenly arrived at her house bearing no. --------------------- z--------------------------------, Delhi in the day time without her information. On enquiry, he explained that he came to her for the prayer. It was a summer season. The accused went to the market to bring cold drink and he brought two cold drinks. One was drank by the accused and another was handed over to the prosecutrix. After drinking the cold drink, she became unconscious and when she regained her consciousness, she found that she was lying in nude condition on the bed and accused was sitting there. She realized that she had been raped. The prosecutrix told the accused that she would report the matter to the police. The accused threatened her that he had taken her snaps and prepared her nude video clippings and if matter is reported to the police, he would distribute the said clippings between the friends and circle of the prosecutrix SC No.37/13 State vs. Saleem Khan @ Sonu Page 2 of 37 and she would be defamed in the society. Finding no other way, she did not report the matter to the police. The accused also assured her that he would marry her after marriage of his elder brother. Thereafter, the accused committed rape on her several times assuring that he would marry her. Due to repeated sexual intercourse by the accused with the prosecutrix, she became pregnant thrice. The accused compelled her to abort her fetus threatening that she would not marry her if she would not abort her fetus. The accused continued to make physical relations with her and she became pregnant fourth time. In the meantime, her father expired on 07.01.2012. The accused took advantage of that situation and he sexually assaulted her repeatedly. It became unbearable for her and she asked the accused either to marry her or she would make the complaint to the police. On 04.03.2012, the accused also tried to sexually assault her. The prosecutrix explained that she was pregnant and requested him to marry her. The accused first time disclosed to her that he was a Muslim boy named Saleem Khan and told her that he was unable to marry her. The prosecutrix shocked to know these facts and realized that she was not only raped but also cheated by the accused by concealing his true identity. He also refused to marry her and also threatened her that he would defame her in her circle and again SC No.37/13 State vs. Saleem Khan @ Sonu Page 3 of 37 pressurized to abort the child. Finding no other way, she approached the PS Chandni Mahal and tried to lodge report against the accused but police officials declined to lodge report on the issue of jurisdiction and advised to approach PS Shahdra, Delhi. As her report was not lodged, so she sent a written complaint/report to the Commissioner of police on 16.04.2012. On the instructions of senior police officers, FIR No. 105/12 dated 17.04.2012, under Sections 376/328/420/506 IPC was recorded at PS Shahdra. The investigating officer inspected the place of occurrence and prepared the site plan. The prosecutrix was taken to GTB hospital where she was medically examined and her MLC was prepared. The accused was arrested on 01.05.2012 and his arrest memo and personal search memo were prepared. He was also taken to GTB Hospital where he was also medically examined. The police, after completion of investigation, filed a charge-sheet against the accused for his trial for the offences punishable under Section 376/328/420/366/506/201 IPC.
2. Ld. Metropolitan Magistrate on receipt of chage- sheet took cognizance of the offences against the accused and after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case was assigned to this Court.
SC No.37/13 State vs. Saleem Khan @ Sonu Page 4 of 373. Vide order dated 31.01.2013, this court opined that there was prima facie sufficient material on record for framing of charge against the accused for the offences punishable under Section 417/328/376/506/366/312/201 IPC. Therefore, charge against the accused for his trial for the said offences was framed and read over to him. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined the Sh. Rashid Khan as PW-1, SI Satpal as PW-2; Dr. Esha Sharma, Obs & Gynecologist, GTB Hospital as PW-3; Lady Constable Sarita as PW-4; Constable Gulab Singh as PW-5; Constable Amit Kumar as PW-6; prosecutrix, ---x--- as PW-7; Qazi Hafiz Nawabuddin as PW-8; Constable Lokesh as PW-9; W/SI Neera Singh as PW-10 and SI Beena Thakur as PW-11.
5. After closing of prosecution evidence statement of the accused under Section 313 of the Code was recorded. All the material and incriminating evidence was put to him. The accused admitted that the prosecutrix PW7 was the daughter of ----y----, who was a Pujari and that their friendship was developed and he started talking with prosecutrix on phone and that he went at the house of SC No.37/13 State vs. Saleem Khan @ Sonu Page 5 of 37 prosecutrix situated at ---------------z--------------------, on her invitation and that he performed sex with the prosecutrix with her consent in the year 2010 and that after registration of the case, police started searching him and he contacted prosecutrix, PW7 and took her to a Qazi in Tis Hazari on 23.04.2012 where the prosecutrix converted her religion before said Qazi and he issued certificate Ex. PW8/B about the same and that on 23.04.2012 PW8 Qazi Hafiz Nawabuddin solemnized his marriage with PW7, prosecutrix, as per Muslim rites and customs and that PW8 also issued Nikahnama/marriage certificate Ex. PW8/A and that on 28.04.2012 he was granted anticipatory bail and he was formally arrested on 01.05.2012 with the help of PW5 Constable Gulab Singh vide memo Ex. PW1/A on production by PW1 Rashid Khan and his personal search memo Ex. PW1/B was also prepared and that on 09.10.2012, PW9 Constable Lokesh took him to GTB hospital where he was medically examined by Dr. Meenakshi vide MLC Ex. PX and the same was identified by him during the trial and that PW7 correctly identified him. He explained that in the year 2007 friendship between him and ---x--- was developed and she invited him in the end of 2007 to her house. He made physical relations with her with her consent and those physical relations were continued for some time. She changed her residence in the SC No.37/13 State vs. Saleem Khan @ Sonu Page 6 of 37 year 2008. He continued to talk to her on telephone. Since the year, 2010, they started living together. ---x--- was making expenses beyond his income. He was not able to fulfill her desire. She demanded Rs. 5,00,000/- from him which he could not pay and she lodged a false case against him.
6. In support of his defence, accused examined Smt. Charanjeet Kaur, landlady of the prosecutrix as DW-1; Smt. Usha, another landlady as DW-2, Smt. Rajni, another landlady as DW-3 and Sh. Sachin Sharma, employer of the accused as DW-4.
7. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused and perused file and written arguments submitted by Ld. defence Counsel.
8. In order to prove its case that accused committed an offence under Section 417 IPC, the prosecution has to prove firstly that the accused concealed his identity that he was a Muslim boy and secondly that the prosecutrix made friendship and submitted herself for the physical relations believing that he was a Hindu boy.
SC No.37/13 State vs. Saleem Khan @ Sonu Page 7 of 379. In order to prove its case that the accused committed an offence of causing hurt by means of poisons etc., punishable u/s 328 IPC, prosecution has to prove firstly that the accused administered either poison or stupefying, intoxicating or unwholesome drug to the prosecutrix; secondly, that drug/intoxicating pills were administered to the prosecutrix with the intention to commit or to facilitate the commission of an offence or knowingly it to be likely that they will thereby cause hurt to the prosecutrix; and thirdly, that after consuming the drug/intoxicating pills, the hurt was caused to her.
10. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
11. In order to prove its case for the offence of criminal intimidation, punishable u/s 506 IPC, the prosecution has to prove firstly, that accused gave threat to the prosecutrix and secondly, the threat was to cause death or grievous hurt, etc. SC No.37/13 State vs. Saleem Khan @ Sonu Page 8 of 37
12. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
13. In order to prove its case that accused committed an offence of voluntary causing miscarriage, punishable under Section 312 IPC, prosecution has to prove firstly that the accused caused the prosecutrix with a child to miscarry and secondly, that such miscarriage was not caused in good faith for the purpose of saving the life of the prosecutrix.
14. In order to prove its case that accused committed an offence of causing disappearance of evidence of offence, or giving false information to screen offender punishable under Section 201 IPC, prosecution has to prove firstly that the accused made physical relations with the prosecutrix and due to that she SC No.37/13 State vs. Saleem Khan @ Sonu Page 9 of 37 conceived thrice and accused caused such evidence to disappear to screen himself.
15. Let us examine the evidence of the parties to ascertain if the evidence on record has succeeded in proving the case against the accused beyond reasonable suspicion and shadow of doubt for the alleged offences?
16. PW7, the prosecutrix deposed that her native village is --------z3-------. She had been residing in Delhi for the last 12-13 years. Her father was priest in ----------------- z2--------------. Her father expired on 17.01.2012. She had been doing the job of performing kirtan and jagran by singing bhajan in the jagran. In the year 2005, accused Sonu, who was present in the Court met her and he told her that he belonged to Hindu community. He proposed her for friendship. Initially she did not accept his proposal and ultimately when he used to chase and used to request her for the friendship, she accepted his proposal. Thereafter, accused started talking with her on telephone and used to visit her house situated at ------------------------z-----------------. She did not remember the date, month and year but once the accused visited her house when her father was not present in the house. The accused brought two bottles of cold drinks. He gave one bottle to her and thereafter they SC No.37/13 State vs. Saleem Khan @ Sonu Page 10 of 37 drank the cold drink. After drinking the cold drink, she became unconscious and when she regained her consciousness, she found herself that she was lying on the bed in nude condition. She also felt that the accused committed sex with her. When she confronted with the accused, he threatened her that he had made her nude video clipping and if she disclosed this fact, he would show her video clipping to her father and also distribute the same to her friend circle and would defame her. Due to fear, she did not disclose this fact to anyone. Thereafter, the accused started blackmailing her and after giving threats of defaming her in the public, he used to commit sex with her without her consent, i.e. he used to rape her without her consent. Due to that reason, she conceived three times and the accused got aborted her each time. When she asked the accused about the marriage, he straightaway refused to marry her. Thereafter, the accused committed sex with her after giving threat to her to defame her after circulating her video clip in her friend circle. She again conceived and blessed with one female child. During this period, she consistently asked the accused to marry her but he refused on the pretext that he was a Muslim. All the expenses of her delivery were borne by her elder sister. When the accused did not accept her, she filed a complaint before concerned Court and on the SC No.37/13 State vs. Saleem Khan @ Sonu Page 11 of 37 said complaint an order was passed by the Court for calling status report on the basis of which police called her in the PS and her statement, Ex. PW7/A was recorded. She made the complaint, Ex. PW7/B to the police against the accused. The present case was registered on her complaint. After registration of the case by the accused, police started searching the accused and thereafter, the accused met her and both of them went to one Qazi in Tis Hazari Court and she converted her religion from Hindu to Muslim before the Qazi. After completing some Muslim ceremony and on her request her religion was converted by the Qazi and he issued a certificate in that regard. After converting her religion her name was changed as Sabana from ---x---. Thereafter, they both married with each other before the Qazi as per muslim rites and custom. After marriage said Qazi issued conversion certificate and marriage certificate Ex. PW8/A and Ex. PW-8/B, respectively. She came to know the fact that the accused was a Muslim, when she became pregnant from the accused and told him to marry with her, then he disclosed his religion. The accused got married with her after registration of the present case. She did not disclose the alleged incident as the accused threatened her to defame her on the basis of her video clippings. Her father expired in the year 2012. She asked the parents of the accused for SC No.37/13 State vs. Saleem Khan @ Sonu Page 12 of 37 her marriage with the accused but they declined and suggested her to abort the child. The accused was working in a gym as told by him. She was medically examined in the GTB hospital.
17. PW1 is elder brother of the accused. He proved his arrest memo as Ex. PW1/A, personal search memo Ex. PW1/B and disclosure memo as Ex. PW1/C. These documents were also proved by PW5.
18. PW2 proved the copy of FIR as Ex. PW2/A. PW3 deposed that on 17.04.2012 she was posted at GTB hospital as Senior Resident in casualty. She had examined the prosecutrix vide MLC Ex. PW3/A. During medical examination, she observed that she was pregnant.
19. PW4 stated that on 17.04.2012 when she was posted constable at PS Shahdra, she had taken the prosecutrix along with IO SI Beena to GTB hospital for the purpose of her medical examination.
20. PW6 deposed that on 08.10.2012, he was posted as Constable at PS Shahdra. On the directions of the IO, she joined the investigation of this case. She came to Karkardooma Courts. Accused present in the Court was SC No.37/13 State vs. Saleem Khan @ Sonu Page 13 of 37 arrested by WSI Neera Singh vide memo Ex. PW6/A. Accused was taken to the residence of Ms. Vandana Jain, Ld. Metropolitan Magistrate and one day police remand was obtained. The accused took the police team to Roshan Lal Hospital and told the IO regarding the abortion of the prosecutrix in the said hospital.
21. PW9 deposed that on 09.10.2012, he was posted as Constable at PS Shahdra. He joined investigation of this case with WSI Neera Singh. Accused present in the Court was taken out from lock up of PS Shahdra to GTB Hospital for his medical and after medical examination of the accused on 09.10.2012, sealed exhibits were handed over to the IO which were seized vide memo Ex. PW9/A which was signed by him at point A. The accused led them to the place where the abortion had taken place and where the photographs of the prosecutrix were taken but those places could not be found. He proved disclosure statement of accused as Ex. PW9/B.
22. PW10 deposed that on 08.09.2012, she was posted at PS Welcome. On that day, investigation of present case was entrusted to her. She moved an application before the Court of Sh. T.S Kashyap, Ld. Additional Sessions Judge seeking cancellation of bail of SC No.37/13 State vs. Saleem Khan @ Sonu Page 14 of 37 the accused. The application was allowed and bail of the accused was cancelled on 08.10.2012. She arrested the accused on the same day vide memo Ex. PW6/A which was signed by her at point B and his personal search memo was prepared vide memo Ex. PW 5/B and thereafter, accused was taken to GTB Hospital for his medical examination and after medical examination of the accused sealed parcels were seized vide memo Ex. PW9/A. On 09.10.2012, she moved an application Ex. PW10/A before the Court seeking permission to conduct DNA test but the accused refused the same. He led them to Roshan Lal Hospital as the prosecutrix disclosed that abortion had taken place there and nude photographs were also taken there. The record from the hospital could not be collected. After completion of the investigation, she prepared charge sheet.
23. PW 11 deposed that on 17.04.2012, she received telephonic information from PS Shahdra to reach there. On that date, she was working as SI in PS Welcome. She arrived at PS Shahdra. Duty Officer handed over her copy of FIR and original ruqqa. SHO of PS Shahdra also marked investigation of this case to her. She along with Lady Constable Savita went to the house of prosecutrix. Prosecutrix was present there. She prepared site plan Ex.
SC No.37/13 State vs. Saleem Khan @ Sonu Page 15 of 37PW11/A at the instance of the victim. She and Lady Constable Savita took prosecutrix to GTB hospital where she was medically examined and her MLC Ex. PW3/A was prepared. She was pregnant at that time and due to that reason, no exhibits could be taken. On 18.04.2012, she took the prosecutrix to the Court for getting her statement under Section 164 of the Criminal Code of Procedure, herein after referred to as the code was recorded by Ld. Metropolitan Magistrate but Ld. Metropolitan Magistrate directed that there was not necessity to record her statement under Section 164 of the Code as her complaint was sufficient. On 28.04.2011, the accused was granted anticipatory bail by the Sessions Court. On 01.05.2012, the accused came to Police station and was arrested vide memo Ex. PW5/A and personal search memo of the accused vide memo Ex. PW5/B was also prepared. He was interrogated and his disclosure statement Ex. PW1/C was recorded.
24. It has been argued by Ld. Defence Counsel that the accused did not commit any offence. In fact, the prosecutrix was in deep love with the accused. They had a long relationship. Ultimately, the marriage was performed between the parties before PW8, who deposed that prosecutrix was mentally sound and she solemnized her SC No.37/13 State vs. Saleem Khan @ Sonu Page 16 of 37 marriage with the accused with her free will. The accused never made physical relations with the prosecutrix forcibly or without her consent. Whenever physical relations were made, these were made with the consent of the prosecutrix.
25. It has also been argued by Ld. Defence Counsel that there are various contradictions between the statements of the prosecutrix and other witnesses. Even, the prosecutrix deposed contrary in respect of the alleged place where the physical relations were made first time between the parties.
26. It has also been argued by Ld. Defence Counsel that police did not record the statement of the prosecutrix under Section 161 of the Code and her statement under Section 164 of the Code was also not recorded by the Ld. Metropolitan Magistrate and that even the landlords where the prosecutrix was residing at the alleged time of occurrence were examined by the accused and they also deposed against the prosecutrix and in favour of the accused. Besides, that the demands of the prosecutrix were very high. The accused could not fulfill her desire as these were beyond the income of the accused and that led to the registration of the FIR of present case.
SC No.37/13 State vs. Saleem Khan @ Sonu Page 17 of 3727. It has also been argued by Ld. Defence Counsel that the rape was allegedly committed by the accused in the year 2008 but the matter was reported to the police in the year 2012. Thus, there has been no explanation of delay in reporting the matter to the police and that has created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
28. In support of his arguments, Ld. Defence Counsel relied on a case Uday v. State of Karnataka, AIR 2003 SC 163: 2003 AIR SCW 1035. In that case the prosecutrix was a grown up girl studying in a college. She was deeply in love with the accused appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. The SC No.37/13 State vs. Saleem Khan @ Sonu Page 18 of 37 Apex Court held that:
"The consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a 'misconception of fact'. A false promise is not a fact within the meaning of the Code. There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them"
29. In support of his arguments, Ld. Defence Counsel further relied on a case State of Andhra Pradesh Vs Jalapatghi Subbarayudu & Ors. 2002 (3) Crimes 204 (SC) wherein the Supreme Court observed that:
"4. It is no doubt true that in these matters, the delay by itself cannot be fatal to the case of the prosecution, but that will depend upon other facts and circumstances of the case. The fate of the case primarily hinges upon the testimony of PW1. With a view to satisfy our conscience, we have minutely examined the said testimony besides the testimony of other witnesses, referred to above. On examination of the evidence on record, it is not possible for us to come to the conclusion in this appeal against acquittal of the accused that the view taken by the High Court is in any manner unreasonable, let alone perverse. The High Court has rightly, on appreciation of evidence, has come to the conclusion that the evidence of PW1 is highly doubtful and we see no reason to reverse the well SC No.37/13 State vs. Saleem Khan @ Sonu Page 19 of 37 founded conclusion of the High Court in the impugned order."
30. In support of his arguments, Ld. Defence Counsel further relied on a case Sudhansu Sekhar Sahoo Vs State of Orissa, 2003 [1] JCC 154, wherein the Supreme Court observed that:
"18. It is well settled that in rape cases the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the court. The victim is not treated as accomplice, but could only be characterized as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be a stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material.
19. Unfortunately, the broad probabilities of the case were not considered by the Sessions Court or the High Court in the instant case. Ms. X, though asserted that she had sustained scratch injuries by nails and biting, her medical examination did not reveal any such injuries. It is true that in view of social conditions prevalent in India, there may be delay in giving the first information of such an offence to the police. A rape victim may think seriously before giving the information to the police about rape as the onslaught of a social stigma may haunt her for life. Though the delay as such is not serious, but while considering broad probabilities of the case, the delay in giving the information to the police, in the instant case, also assumes some importance. Though the past conduct of the prosecutrix is an irrelevant matter, in the instant case. Ms. X asserted that she was a virgin till the alleged incident, but the medical evidence supported by her physical features revealed that she was habituated to sex. All these factors cast a serious doubt on the prosecution case.SC No.37/13 State vs. Saleem Khan @ Sonu Page 20 of 37
Though there is no apparent motive for Ms. X to falsely implicate the appellant it may be that Ms. X must have changed her mind when she came to know that others must have come to know of her conduct. So there are so many loose ends in the prosecution case. On a consideration of the broad probabilities of the case, we feel that various factors cast a serious doubt about the genuineness of the case of Ms. X that she had been forcibly ravished by the appellant. The appellant is certainly entitled to the benefit of doubt. Therefore, we set aside the conviction of the appellant under Section 376 and 342 IPC and allow his appeal. The appellant was granted bail by this Court. The bail bonds furnished by the appellant are cancelled."
31. In support of his arguments, Ld. Defence Counsel further relied on a case Ashok Kumar Jha Vs. State of Bihar 2002 [3] JCC 2004 wherein the Supreme Court observed that:
"8. In the instant case, the FIR was lodged long after the date of the alleged incident. The only explanation for the delay in lodging the FIR is that the ladies after coming back to the house in the morning left the village concerned. It is, however, seen that they claimed to have come back to the village after the villagers asked them. PW1 categorically stated that other villagers were present when they returned after the rape. Even the children of PW1 were present in the hut. No explanation has been given as to why at that point of time no complaint was lodged or anybody informed. Though delayed lodging of FIR may not be fatal in all cases, in view of several other suspicious circumstances, they assume importance. It has also not been explained as to how villagers came to know of the incident to call the three ladies to lodge complaint. Apart from the improbability of the story of the three ladies who were living in a house in which no male member was present being taken away in the middle of night of 28th November, 1995 for the purpose of committing rape SC No.37/13 State vs. Saleem Khan @ Sonu Page 21 of 37 outside, rather than performing the heinous act in the hut itself. It is highly improbable that three ladies spent nearly three hours without any cloth in a bitter cold night. The acceptability of the evidence of DW1 to DW4 has not been dealt with. These four witnesses namely, DW1 to DW4 are not stated to be related to any of the accused. They are four independent persons. It is unfortunate that the High Court also did not attach any importance to the admitted position of bitter hostility between the parties. Though that by itself may in some cases be not of much relevance to make prosecution case vulnerable, in the present case along with other factors it is relevant. By totally ignoring the evidences of DWs 1 to 4 which more than cast doubt on the case of the prosecution grave injustice has been done to the accused. What weight could have been attached to it is another matter. But non-consideration is not proper. That adds vulnerability to the prosecution case, as the discussions supra go to show. We also notice in that the FIR it was alleged that one Birju Jha the Fourth accused had also committed rape but in her testimony PW1 did not state so and on the contrary she said that the name of Birju Jha was inserted because his name was being mentioned at the time when the incident was taking place. She further stated that she has seen Birju Jha for the first time in the Court. We also note that in the FIR, it has note been mentioned that Ravinder Mishra had committed rape, even though, in her testimony, PW1 accused him of the same. Statement of PW1 was wholly unreliable. Similar is the case with the evidence of PWs 2 & 3. The cumulative effect of the vulnerable circumstances corrodes credibility of the prosecution evidence."
32. In support of his arguments, Ld. Defence Counsel further relied on a case Mohinder Singh Vs. State of Haryana 2005 [1] C.C. Cases (HC) 95 wherein the High Court of Punjab and Haryana observed that:
"23. The basic infirmity which knows at the bottom of the prosecution case, is that the prosecutrix when stepped into SC No.37/13 State vs. Saleem Khan @ Sonu Page 22 of 37 the witness box has made an attempt to change the basic version by alleging that the appellant had in fact committed rape with her and while leaving the house, he had warned that in case she disclosed about the rape to anybody, he would kill her. This improvement is made by her for the first time in the court after the lapse of 2 years. Had all this been true, the prosecutrix had all the opportunity to make even the supplementary statement in this regard before the police during the investigation but the same has not been done in this case. She was confronted in this regard from her previous statement, during cross examination, where she has stated that she had disclosed before the police that the accused had committed rape upon her. The said fact, however, is not mentioned in Ex. PF. This material infirmity in the prosecution case, in my view, is enough to reject the testimony of the prosecutrix and it can be safely stated that her statement is not free from doubt. It appears that the prosecutrix was induced by somebody, may be her husband or anybody from the family, to come out with improved version in order to implicate the present appellant for the main charge. I am, conscious of the fact that such type of cases are of serious nature but courts being the guardian of law are also supposed to see that no one should be punished if the case is not proved against him beyond any shadow of reasonable doubt. In my considered view, so far as charge of Section 376 read with Section 511 IPC is concerned, there is no ring of truth around the allegations projected by the prosecutrix in this regard and consequently, the appellant deserves acquitted qua that charge at least."
33. On perusal of file, considering the submissions of Ld. Addl. PP for the state, Ld. Defence Counsel and on analyzing the evidence on record, I come to the conclusion that the prosecution could not prove its case against the accused beyond reasonable suspicion and shadow of doubt SC No.37/13 State vs. Saleem Khan @ Sonu Page 23 of 37 that the accused committed the alleged offences. The reasons which support my conclusion are firstly, that nothing on record and particularly testimony of the prosecutrix could not prove beyond reasonable suspicion and shadow of doubt that she did not consent the accused for making physical relations with her. In cross examination PW7, the prosecutrix stated that she did not remember when she met the accused first time. She explained that she met with the accused on the Shahdra Metro Station and her friend Suman was also with her at that time and at that point of time she was residing at Gorakhpark, Shahdra. She was having her mobile at that time but she did not remember her mobile number. She did not ask the mobile number of the accused. She also did not give her mobile number to the accused. She explained that the accused snatched her mobile number and he entered her mobile number into her mobile. The accused came to her house in the absence of her father after meeting at Shahdra Metro Station. She explained that the accused saw her house as he was chasing her on previous several occasions. The accused had disclosed that fact to her. She did not state before the IO or wrote in her complaint that the accused was in talking term with her. She did not remember after how many days the accused used to meet her. The accused maintained physical relations with her at SC No.37/13 State vs. Saleem Khan @ Sonu Page 24 of 37 noon time at Goraknath's rented house. She did not disclose the date when the accused maintained physical relations with her for the first time. She did not make any complaint to anyone regarding visiting of the accused at her house due to fear. The accused did not meet her prior to January, 2008 as he used to take her on phone. The accused visited her house in 2008 at noon time. The accused offered her cold drink but she did not remember the brand of cold drink. She became unconscious after half an hour from the time of consuming the cold drink. No talks took place in between half an hour with the accused. The accused remained present there for about 5 minutes after she regained consciousness. She did not disclose the incident to anyone as the accused threatened her that he had taken video clipping, etc. Video clippings were never shown to her or to her friend by the accused. The accused had prepared the video clippings from his mobile phone. The photographs were not shown to her by the accused. She did not remember when the accused visited her second time after the alleged incident. She explained that accused used to visit her after 10-15 days. The accused used to make physical relations with her during those visits by threatening to show video clippings. She did not raise any alarm to save herself. She did not remember the time of visiting the accused second time. She did not tell to the SC No.37/13 State vs. Saleem Khan @ Sonu Page 25 of 37 IO about bringing the bottle of cold drink by the accused. She did not make call to the police on 100 number. She did not recollect date when she became pregnant first time or she was taken to Taneja Nursing Home for abortion. She signed the documents at Taneja Nursing Home. She did not recollect the date when she became pregnant second time. She was taken to same Nursing Home that time. She also signed some documents. She admitted that she lodged the complaint against the accused when he refused to marry her. She explained that he refused on the pretext that he was a Muslim. She came to know first time that the accused was Muslim when she asked him to marry her. These portions of cross examination provide benefit to the accused in holding that the prosecution could not prove beyond reasonable suspicion and shadow of doubt that she did not consent for the sexual intercourse.
34. The principles of law laid down in Uday v. State of Karnataka, (supra) relied on by Ld. Defence Counsel also supports the defence of the accused.
35. Secondly, the evidence on record and particularly discussed herein above has also established that conduct of the prosecutrix was not natural. She did not recollect the first day when she was sexually assaulted SC No.37/13 State vs. Saleem Khan @ Sonu Page 26 of 37 by the accused or second time when the accused allegedly forcefully made physical relations with her. She also failed to recollect when she became pregnant first time, second time or third time. She did not tell about her sexual exploitation to others even to her father or friends, neighbours or relatives for this long span of period of more than four years. This also creates reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
36. Thirdly, the prosecution admitted that she lodged the report because accused refused to solemnize marriage with her. In her further cross examination she admitted that marriage between the accused and her had already been solemnized. Although, she explained that marriage was solemnized with her forcibly to avoid punishment yet she admitted that she treated her marriage with the accused as valid. The plea that accused forcibly solemnized marriage with her has been negated by PW8 who was Qazi. He stated that before solemnization of marriage of Saleem and ---x---, ---x--- had converted her religion from Hindu to Muslim. She completed the formalities/conditions of Muslim religion and thereafter, on his satisfaction, he issued conversion certificate Ex. PW8/B to the ---x---. He further stated that on 23.04.2012, the SC No.37/13 State vs. Saleem Khan @ Sonu Page 27 of 37 marriage between the accused and ---x--- was performed as per Muslim rites and customs vide Nikahnama/marriage certificate Ex. PW8/A. In cross examination conducted by the Ld. Defence Counsel he admitted that ---x--- solemnized marriage with the accused Saleem Khan with her free will and at that time she was mentally sound. Thus, it could not be established beyond suspicion and shadow of doubt that accused performed marriage with the prosecutrix either forcibly or without her consent.
37. Fourthly, the evidence on record could not establish that the accused cheated her by not disclosing his religion to her. In her cross examination, the prosecutrix admitted that she solemnized marriage with the accused knowing fully well that he was a Muslim boy. She even changed her religion from Muslim to Hindu and admitted in the cross examination that she will treat her marriage with the accused as valid. In these circumstances, it can not be held that if the prosecutrix knew the religion of the accused, she would not have solemnized marriage with the accused. Performing marriage with the accused knowing fully well that he is a Muslim boy has negated her plea of cheating on the ground of religion.
38. Fifthly, the testimony of the prosecutrix that she SC No.37/13 State vs. Saleem Khan @ Sonu Page 28 of 37 was given cold drink and after drinking the cold drink she lost her consciousness seems unbelievable and untrustworthy. The first reason for this decision is that prosecutrix could not tell even the brand of cold drink which was offered to her. The second reason is that she even could not tell the date and month when the cold drink was offered and she consumed the same.
39. Sixthly, the prosecution evidence could not prove the specific date time or place when the accused made the prosecutrix to abort her fetus three times. As mentioned above, she even could not tell when she conceived and aborted first time, second time or third time. Except telling the name of the hospital as Taneja Nursing Home, nothing more could be established on record. Her statement remained unsubstantiated on this aspect. Thus, it could not established beyond reasonable suspicion and shadow of doubt that accused voluntarily caused miscarriage of fetus of the prosecutrix.
40. Seventhly, the evidence on record could not establish that prosecutrix was in constant threat of the accused and for that reason she could not report the matter in time to the police. The prosecutrix admitted that threat was given to distribute her nude clippings to defame SC No.37/13 State vs. Saleem Khan @ Sonu Page 29 of 37 her in the society. In the later part of her cross examination, she admitted that she never saw any such video clippings or photographs with the accused. In these circumstances, it is not believable that there was genuine threat to the prosecutrix.
41. Eighthly, the testimony of prosecution witnesses are also silent about efforts of commission or omission of the accused to cause disappearance of the accused of the alleged offence to screen himself from the punishment. None of the prosecution witnesses deposed on this aspect.
42. Ninethly, there is long unreasonable and unexplained delay in reporting the matter to the police. As mentioned above, the offence was committed in the month of June, 2008 but the matter was reported to the police on 16.04.2012. There is no explanation of delay except that the accused threatened her to circulate her nude video clippings. That was found untrustworthy. This long unexplained delay creates unreasonable suspicion and shadow of doubt in the truthfulness of the prosecution case and provides benefit to the accused.
43. My decision in this regard finds support from a case Jagdish v. State, (Delhi), 1987(1) R.C.R.(Criminal) SC No.37/13 State vs. Saleem Khan @ Sonu Page 30 of 37 613 , wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 :- "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to 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 the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite after results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to.
10. The delay of two days in the lodging of the F.I.R. in the case in hand has not been explained at all much less satisfactorily by the prosecution and it was not job of the SC No.37/13 State vs. Saleem Khan @ Sonu Page 31 of 37 defence to have put questions to the injured in her cross- examination to elicit the reasons for that delay. On account of this delay the causing of self-inflicted injuries on her person, in consultation with her father, cannot be ruled out as the motive for the same was very much there as already pointed out above."
44. The principles of law laid down in State of Andhra Pradesh Vs. Jalapatghi Subbarayudu & Ors., (supra) and Ashok Kumar Jha Vs. State of Bihar, (supra) relied on by Ld. Defence Counsel also support the defence of the accused on this aspect.
45. Tenthly, the testimonies of prosecution witnesses PW1 to PW11 except the prosecutrix, as discussed herein above are formal in nature. Thus, they are only supporting witnesses and not the witness of occurrence.
46. Eleventhly, even the observation of Doctor on MLC of prosecutrix Ex. PW3/A provides support to the accused. It has been mentioned therein that the patient was in physical relationship with a person named Sonu @ Saleem Khan. The words like allegation of rape or sexual assault are missing in the MLC. This has further established that the prosecutrix did not even tell to the Doctor that she was sexually assaulted or raped without her consent.
SC No.37/13 State vs. Saleem Khan @ Sonu Page 32 of 3747. Twelthly, the testimonies of defence witnesses also provide benefit to the accused. DW1, DW2 and DW3 were the landlady of the prosecutrix. These witnesses deposed that the prosecutrix never disclosed to them or their family members that accused Sonu @ Saleem Khan sexually assaulted her. DW4 deposed that ---x--- told him that she wanted to marry with the accused and for that she may go up to any extent. She did not disclose to him that the accused forcefully married with her. He saw accused and the prosecutrix moving together and after the marriage residing together. This has further created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
48. Thirteenthly, the prosecutrix in her cross examination admitted that she disclosed her name to the Doctor at the time of her medical examination as ---x--- Shukla. She also admitted that she is Gupta by caste. The prosecutrix in her cross examination admitted same photographs Ex. PW7/D. She explained that in these photographs one of her relatives is there. In one of the photograph she has been seen in the posture which is usually taken by husband and wife. It has been alleged that she was earlier married with one Mr. Shukla. It could not be established as to how the prosecutrix mentioned SC No.37/13 State vs. Saleem Khan @ Sonu Page 33 of 37 her name as ---x---. This has also created reasonable suspicion and shadow of doubt in her testimony.
49. Fourteenthly, the prosecution could not prove its case as per the standards of proof laid dow in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence 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. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
50. Fifteenthly, my attention goes to a case, K.P. Thimmappa Gowda v. State of Karnata, AIR 2011 SC 2564 wherein Court observed that:
"12. In criminal cases, the rule is that the accused is entitled to the benefit of doubt. If the court is of the opinion that on the evidence two views are reasonably possible, one that the appellant is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the accused.
13. In the present case, the facts are that Rathnamma herself stated in her evidence that she had sex with the SC No.37/13 State vs. Saleem Khan @ Sonu Page 34 of 37 appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma's child, which means there is delay of over 8 months in lodging the FIR. The finding of the trial court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was no offence under Section 376, IPC because sex with a woman above 16 years of age with her consent is no rape."
51. My attention also goes to a case Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was, inter alia, held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above cases are applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
52. Sixteenthly, my attention goes to a case Ajmer and another v. State of Haryana, II-1989(1) Crimes 424, wherein it was held by P&H High Court that:
SC No.37/13 State vs. Saleem Khan @ Sonu Page 35 of 37"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
In the facts and circumstances of the present case coupled with the nature of evidence which have come on the record, I am of the view that accused is entitled to get benefit of doubt.
53. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him for the alleged offences beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
54. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case against the accused beyond any reasonable suspicion and shadow of doubt that the accused Saleem Khan @ Sonu committed offence of cheating punishable under Section 417 IPC, offence of causing hurt by means of poison, etc. SC No.37/13 State vs. Saleem Khan @ Sonu Page 36 of 37 punishable under Section 328 IPC, offence of rape punishable under Section 376 IPC, offence of criminal intimidation punishable under Section 506 IPC, offence of abducting a woman punishable under Section 366 IPC, offence of voluntarily causing miscarriage punishable under Section 312 IPC and offence of causing evidence to disappear to screen himself from the punishment punishable under Section 201 IPC. Consequently, the accused is acquitted for the offences punishable under Section 417/328/376/506/366/312/201 IPC by giving him benefit of doubt.
55. However, in view of provisions of Section 437 A of the Code accused is directed to furnish within a week bail bond/surety bond in the sum of Rs.20,000/- with one surety of like amount for the period of six months.
56. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the Open Court Dated: 28.01.2014 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.37/13 State vs. Saleem Khan @ Sonu Page 37 of 37