Delhi District Court
State vs Sonu And Anr.//Fir No.134/13//Ps - ... on 16 November, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL SESSIONS JUDGE:SPECIAL FAST TRACK
COURT:ROHINI :DELHI
Sessions Case No : 58228/16.
STATE
V/S
1. SONU,
S/O. ISHWAR SINGH,
R/O. B147, INDIRA NAGAR,
ADARSH NAGAR,
DELHI.
2. MADHU,
W/O. ANIL KUMAR,
R/O. B147,
INDIRA NAGAR,
ADARSH NAGAR,
DELHI.
FIR No : 134/13.
Police Station : ADARSH NAGAR.
Under Section : 376/506/120B/109 IPC.
Date of Committal to Sessions Court: 27.08.2013
Date on which Judgment reserved: 02.11.2019
Date on which Judgment announced: 16.11.2019
Present: Shri V.K. Negi, ld. Addl. PP for State.
Shri Shankar Dutt, ld. counsel for both accused.
State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 1 OF 18
JUDGMENT
1. Wheels of justice started moving only on 02.05.2013 when ld. MM directed police under section 156(3) Cr.P.C to register and investigate rape case. Before it, the written complaint given to police on 20.03.2013 by the complainant had fallen in deaf ears.
2. Victim's friend Madhu used to reside in a nearby colony namely Indra Nagar and both were on visiting terms. Madhu's younger sister Ruby's marriage ceremonies were to be performed in a village in Meerut for which she and her family members were also invited. One fine day when she went to Madhu's house in Indra Nagar, her brother/accused was there and on inquiry he told that Madhu was away to Bawana and would return after a short time. He asked her to sit down as he was calling Madhu on phone. The accused, all of a sudden, bolted the door from inside and raped her though she had tried to save herself but accused was strong enough. Madhu returned after half an hour and Sonu told him everything. In order to feign solidarity with her, Madhu slapped accused Sonu four/five times and asked her to forgive him saying that after her sister's marriage, they would solemnize her marriage with accused and simultaneously, requested her not to tell anybody about the incident. Sonu and his sister Madhu took her to their village in Meerut in the marriage of Ruby where she lived for several days. Both accused persons kept on assuring her there that she should not tell anything to any of the relative as they would get her married with Sonu State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 2 OF 18 after Ruby's marriage. Thereafter, Sonu established physical relations with her several times in the name of marriage and whenever she refused, he would threaten her that if she did not do sex with him, he would not marry her and that he would kill her brother. Whenever she talked to both accused after Ruby's marriage about her marriage, they refused to get her married with Sonu.
3. Charge under section 376 read with 109 IPC was framed against accused Madhu on 03.10.2013 to which she pleaded not guilty and claimed trial.
Charge under section 376/506 IPC was also framed separately against accused Sonu on 03.10.2016 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined fifteen witnesses.
5. As PW7, the prosecutrix could not recollect the date and month when she was raped by accused Sonu in his house where she had gone to meet his sister Madhu. She also could not recollect the date of marriage of Ruby but it was in June which was held in a village of Meerut and was attended by her also and she had stayed there for about 5/6 days. She deposed that she had filed complaint Ex.PW7/A under section 156(3) Cr.P.C, which was sent to the police for registration and investigation in the case. Both accused persons were summoned in the police station and the matter was compromised as Sonu has promised to marry her. But later, he again refused saying that she should do whatever State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 3 OF 18 she liked. She next deposed that her medical examination was conducted in BJRM Hospital and statement Ex.PW7/B was also recorded under section 164 Cr.P.C. Accused Sonu was arrested from his house on 03.05.2013 at her instance. Next day, his sister Madhu was also arrested at her instance from her house.
PW13 Jagdish, father of the prosecutrix, deposed that her victim daughter informed him in 2013 that accused Sonu, who used to reside with his sister Madhu and her husband in Indra Vihar, wanted to marry her and so, he alongwith his brotherinlaw Om Prakash went to Madhu's house for marriage talks but they refused to marry Sonu with his daughter and they they were thrown out of the house unceremoniously.
PW10 Naveen Kumar is the husband of Annu, sister of the prosecutrix and his evidence is reproduction of the testimony of PW13 Jagdish.
PW11 Annu deposed all the facts stated by her father i.e. PW13 Jagdish.
6. PW14 W/Ct. Pushpa deposed that on 03.05.2013, she, SI Sushila Rana and Ct. Vikas took prosecutrix and her father Jagdish to BJRM hospital where victim was medically examined. She handed over victim's MLC to the IO. IO handed over rukka to Ct. Vikas for registration of the FIR. She, IO and victim went to the house of the accused Sonu and arrested him. In the meantime, Ct. Vikas also came there and handed over copy of FIR and original tehrir to the IO.
State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 4 OF 18 PW2 Ct. Vikas deposed that the duty officer handed him over original rukka and copy of FIR on 03.05.2013 which he took to H.No.B147, Indra Nagar and handed over to W/SI Sushila Rana. Accused Sonu was arrested vide arrest and personal search memos Ex.PW2/A and Ex.PW2/B respectively and his disclosure statement Ex.PW2/C was recorded. Thereafter, site plan was prepared at the instance of the complainant and accused Sonu was medically examined in BJRM Hospital.
PW1 HC Goverdhan registered case FIR Ex.PW1/A on 03.05.2013 at 4:45 P.M.
7. PW4 Dr. Vaibhav Gulati deposed that after examining victim on 03.05.2013 and finding no fresh external injury, he prepared MLC Ex.PW4/A and referred her to S.R. (Gynae). Accused Sonu was examined by Dr. Nandeep under his supervision and he did not have any external injury. After preparing MLC Ex.PW4/A, the accused was referred to SR (Surgery) for Potency test. He identified the signatures of Dr. Nandeep on MLC saying that the said doctor was no more working with the hospital and his whereabout were not on record.
PW5 Dr. Latika conducted internal medical examination of victim on 03.05.2013 but she did not have any injury on her body. Vulva was healthy and hymen was old torn.
PW6 Dr. Vaibhav Gulati identified the signatures and handwriting of Dr. Kamakshi Narula, who had conducted preliminary examination of accused Madhu and prepared MLC Ex.PW6/A. State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 5 OF 18 PW3 Dr. Vikram J Dias deposed that after examination of the accused in surgery department on 03.05.2013 he opined that there was nothing to suggest that he was not capable of performing sexual act.
8. PW8 W/Ct. Poonam deposed that she alongwith W/SI Sushila Rana and HC Karambir first went to the house of prosecutrix on 04.05.2013 and then they went to the house of accused persons from where accused Madhu was arrested vide arrest and personal search memos Ex.PW8/A and Ex.PW8/B respectively and her disclosure statement Ex.PW8/C was recorded and thereafter, she was medically examined in BJRM hospital.
PW12 Smt. Shakuntla Bhatia deposed that she was owner of H.No.147B, street no.1, Indra Nagar, Delhi, the first floor of which was let out to accused Madhu who used to reside there with her brother accused Sonu, daughter and husband. She claimed that she did not know any girl by the name of Neetu as she never heard her name. She was declared hostile and in crossexamination by addl. PP, she deposed that she never saw complainant visiting her house and that police never came to her house.
PW9 ld. MM Sh. Dheeraj Mor recorded statement of prosecutrix u/s. 164 Cr.P.C on 05.05.2013 in Rohini court.
9. PW15, Inspector Sushila Rana deposed that after receipt of order of ld. MM on 03.05.2013 for registration of the case, she made endorsement Ex.PW15/A on complaint Ex.PW7/A and got the case FIR registered and took the victim to BJRM Hospital with W/Ct. Pushpa State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 6 OF 18 where she was medically examined and thereafter, the prosecutrix led them to H.No.B147, Indra Nagar where Ct. Vikas also came and handed over copy of FIR. She next deposed that she prepared rough site plan Ex.PW15/B at the instance of the complainant and arrested accused Sonu from his house. He pointed out the place of incident and pointing out memo Ex.PW15/C was prepared. He was got medically examined in BJRM Hospital. She next deposed that she alongwith W/Ct. Pushpa and HC Karambir reached to the house of the prosecutrix where she and her father met them and they all proceeded to the house of accused Madhu from where she was arrested and after pointing out of place of incident by her, pointing out memo Ex.PW15/D was prepared. She was medically examined in BJRM Hospital. She next deposed about recording of statement of the victim under section 164 Cr.P.C on 05.05.2013. Ultimately chargesheet was filed.
10. Under Section 313 Cr.P.C., both accused denied all incriminating evidence put to him.
11. Accused Madhu did not examine single witness in her defence. Sonu examined a witness in defence.
12. DW1 Ms. Sanjana deposed that accused Sonu was her real brother. She has four sisters and three brothers and Sonu is elder to her. She further deposed that she was married to with Arvind Kumar on 17.06.2011 at her native village in Meerut, U.P. and it was a simple marriage which was attended only by her family members. The prosecutrix was not known to her and she did not attend her marriage.
State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 7 OF 18 She relied upon her married card as Ex.DW1/A. In crossexamination by ld. addl. PP, she deposed that she came for deposing on the asking of her brother Sonu. She did not give any complaint to any authority or court that prosecutrix had not attended her marriage and that victim gave false complaint in that regard.
13. Ld. defence counsel argued that perusal of complaint, statement and evidence of the prosecutrix shows that the accused did not promise before establishing physical relation that he would marry her. As per her evidence, he promised only after returning to Delhi from Meerut. So, there was no physical intercourse due to promise of marriage.
He next argued that in complaint, the prosecutrix did not state the date, month and year of the first and second incident of rape. Under section 164 Cr.P.C., she stated May and June, 2012 as the months when first and second incident of rape had happened but that is absolutely false because as per complainant herself, year of rape was the year of Ruby's (accused's sister) marriage which was held in 2011 and not in 2012. In crossexamination dated 11.09.2014, she deposed that Ruby was married about 1½ years and at that time, she was raped by the accused. As per that deposition, the second incident of rape comes out to June, 2013, which is again false because the complaint was given in May 2013 regarding all incidents of rape.
He next submitted that version of the prosecutrix is completely improbable and inconsistent and hence, her solitary evidence cannot be used to convict the accused without corroboration which is State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 8 OF 18 coming from nowhere.
Lastly, he argued that whatever had taken place between the parties was with the sweet will of the victim and hence, she cannot be heard to say later that the accused had done galatkaam with her.
14. On the other hand, ld. addl. PP argued that accused Madhu was close friend of the victim and on one fine day, when she went to her house, Madhu was not available and her brother accused Sonu asked her to sit as he was calling his sister on phone from market. He raped her there and when Madhu returned, he disclosed her about the whole incident, who promised victim that she would get arranged her marriage with her brother. He next argued that the prosecutrix was forced to have physical relations in the marriage ceremony days of the sister of the accused in a village in Meerut, after promising that they would arrange Sonu's marriage with her. When they ultimately refused in February 2013, the victim told her family members and friends and thereafter, she lodged the FIR.
15. The prosecutrix deposed as PW7 that she had filed complaint Ex.PW7/A bearing her signature at point A in the court of ld. MM, which was sent to the police upon which the case FIR was registered. Perusal of para number 4 of the complaint shows that the accused Sonu first raped victim and told about that incident to co accused Madhu when she returned after half an hour. She slapped him 34 times and begged forgiveness from the victim assuring that after marriage of her younger sister Ruby, she would get arranged her State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 9 OF 18 marriage with his brother. Hence, as per complaint, accused Sonu did not promise victim before sex that he would marry her. Rather, such promise flowed from his sister and that too after establishing of physical relations. Para no.5 of the complaint shows that the victim went to the village of accused persons to attend the marriage of their sister where she stayed for some days and there also, Sonu tried to establish physical relations with her promising marriage but she refused and thereafter, he threatened that if she did not do sex with him, he would not marry and also would defame her and kill her brother. After threat, it is further mentioned, he raped her. So, as per para number 5 also, there was no promise of marriage before establishing physical relations.
In evidence also, the prosecutrix deposed that when Madhu returned from market, the accused told her that he had raped her friend on which he was slapped 45 times by her and then Madhu told her that she would talk about their marriage with her family members after marriage of her sister was over. So, as per evidence also, there was no promise of marriage by Sonu before establishing physical relations with her. Moreover, there was no promise from Madhu also as she had merely told her that she would talk to her family members about their marriage. Assertion of these facts do not amount to making of a promise. It is next deposed in further crossexamination that she went to Meerut to attend the marriage of sister of the accused where she stayed for 45 days and when she requested accused Sonu to talk to his parents about their marriage, he put a condition that she would have to make physical State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 10 OF 18 relation with him to which she refused. She further deposed that despite her refusal, he again established physical relation with her threatening that he would defame her. So, as per evidence also, there was no promise to marry flowing from Sonu at the time of second incident of rape.
There are four paragraphs in statement Ex.PW7/B of the prosecutrix under section 164 Cr.P.C. As per first paragraph, the promise of marriage was from accused Madhu and that also after the incident of physical interaction. As per second paragraph also, there was no promise of marriage from accused Sonu at the time of second sexual encounter. As per 3rd paragraph, both accused assured her multiple times that they would get her married with Sonu.
16. The logical conclusion of the above discussion is that accused Sonu never promised victim to marry her. If there was any promise, the same was made by his sister.
17. The complainant did not mention date, month and year of first or second incident of rape in complaint Ex.PW7/A. As per that complaint, the accused had raped her only twice but as per statement under section 164 Cr.P.C, she was ravished sexually several times till December 2012. In examinationinchief, she deposed that the first incident of rape had taken place about two years prior to that date (deposition) i.e. 25.07.2014. She could not recollect the date of second incident of sexual encounter but stated that it was in June when his sister was married. Again, she is not specific about the date and year of the incident.
State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 11 OF 18 DW1 Sanjana, sister of both accused persons, deposed that she was married with one Arvind Kumar on 17.06.2011 and in this regard, she placed on record her marriage invitation card Ex.DW1/A in which her name is mentioned as Ruby. So, DW1 is the same person in whose marriage, the prosecutrix is said to have been raped in a village in Meerut. But she deposed that the victim had not attended her marriage as she was not known to her. Moreover, she was not married in June 2012 and rather, she was married in June 2011.
Under section 164 Cr.P.C, the prosecutrix told ld. MM that first time, she was raped in the house of accused Madhu in May 2012, and secondly in June, 2012 in the house of both accused persons situated in a village in Meerut. But, on this point, she is totally contradicted by DW1. Evidence of DW1 would prevail upon the evidence of the prosecutrix on this issue because DW1 is corroborated by her marriage invitation card and the victim is not corroborated by any witness or document.
18. The prosecutrix started her evidence by deposing that house of accused Madhu was about 4 minutes walking distance away from her house. One day, she went to her house in afternoon but she was not available. Sonu opened the door and told that Madhu was away to market. He raped her and Madhu returned home after sometime and Sonu told her that he had made physical relations with her forcibly. Madhu slapped him several times and requested her not to inform anybody about the incident as she would get her married with Sonu after State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 12 OF 18 the marriage of Ruby. Such version is quite improbable because no brother would tell his own sister due to shyness that he had raped her friend. There was no occasion or reason for Sonu to tell her sister about the physical relation with the victim.
The prosecutrix did not depose after how much time of the first incident of rape, Madhu returned from the market. But said period is mentioned as 30 minutes in complaint Ex.PW7/A. It is also mentioned that after committing galatkaam, Sonu confined her away in a room. That version also seems improbable because after committing crime, the accused either runs away or forces the victim to run away from the spot so that the crime is concealed. In the present case, exactly opposite happened. The accused Sonu deliberately kept confined victim in a room and waited for return of his sister who came there after 30 minutes. More than enough time was available to Sonu either to run away from the spot or to force victim to go from there. Instead of adopting that course which was advantageous to him, he adopted the second course which was detrimental to him. That version shows the unnatural conduct of the accused. As per victim herself, after rape, she was present in the house of accused for 30 minutes. She has no explanation why she did not raise hue and cry during that period.
The prosecutrix deposed that she remained in the house of the accused persons in a village in Meerut for 89 days, at the time of marriage of their sister Ruby. During those days also, she was raped. That version also seems to be quite improbable because she did not State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 13 OF 18 mention about the place of rape. Admittedly, when there is a marriage in a family, the house is frequented by several persons almost all the time. It is always buzzing with some or other kind of activity. It is almost improbable to commit rape in that kind of house. Had such incident taken place, the guest and other family members would have definitely come to know of it.
In crossexamination dated 11.09.2014 at page number 3, victim deposed it correct that she had not visited the house of accused Madhu in May and June 2012. It is pertinent to mention that as per statement under section 164 Cr.P.C, she was raped first time in the house of accused Madhu in May, 2012 and second time in her house in a village in Meerut in June, 2012. If she did not visit Madhu's house, it corroborates the arguments of ld. defence counsel that she was not raped by the accused in those months and it makes her version totally improbable.
In examinationinchief on 03.09.2014, she deposed that after FIR, she and both accused were called in police station where the matter was compromised and both were called in the court. He promised in court to marry her but later, when she asked him on phone for marriage, he flatly refused saying that she could do whatever she liked. All these facts are totally missing in all her statements.
19. It is the settled law that accused can be convicted on the sole testimony of prosecutrix provided the testimony of the prosecutrix is trustworthy and reliable.
State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 14 OF 18 In Abbas Ahmad Choudhary Vs. State of Assam I (2010) CCR 402(SC), it has been observed as under: "We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
In Sadashiv Ramrao Hadbe vs. State of Maharashtra & Anr, 2006 (1)) SCC 92, the Apex Court while reiterating that in a rape case, the accused can be convicted on the sole testimony of prosecutrix, if it is capable of inspiring confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony, when the entire case is improbable and unlikely to have happened. It has been held as under: "It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or that whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 15 OF 18 solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
20. In view of above citations, facts and circumstances it can be said with certainty that the evidence of victim cannot be believed without corroboration as it is suffering various improbabilities, inconsistencies and infirmities.
21. The prosecutrix deposed in crossexamination dated 11.09.2014 that she did not know accused Sonu prior to the incident. She knew Madhu for last six years. Simultaneously, she deposed that she did not know whether Sonu used to live with her married sister Madhu or not. But she stated it with certainty that he used to visit her house. As she knew that Sonu used to visit Madhu's house regularly, it cannot be said that victim did not know him prior to the incident. In this regard, she is telling a white lie. She is deliberately trying to conceal her relation with Sonu. Such relationship becomes visible from her further evidence in which she deposed that she had gone to the house of relatives of both accused in Haridwar for distributing marriage cards of Ruby, sister of both accused. As per prosecutrix, she was not more than a friend of Madhu. In that capacity it is not expected she would accompany her friend and friend's brother for distribution of marriage invitation cards of their sister. It is pertinent to mention that case of the accused is that the State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 16 OF 18 victim had accompanied him in 2011 to Haridwar and they had stayed in a Purohit Hotel. The prosecutrix was asked to tell the names and address of the relatives of the accused at Haridwar in whose house she had stayed when she visited them for distribution of marriage cards of Ruby, but she expressed anonymity. Had she stayed with accused in the house of his relative in Haridwar and not in Purohit Hotel, the victim would have, at least, told the name of colony or mohalla where the house of those relatives was situated. She would also have told about her relations with accused persons. But she is completely silent. She had attended the marriage of Ruby, sister of both accused, in a village in Meerut and stayed for 810 days. It shows that her relationship was not only with Madhu but also with other accused Sonu, as she used to talk to him there very frequently. If she did not know Sonu prior to the first incident of rape in May, 2012, she was not expected to talk to him frequently in the next month on the occasion of marriage of his sister. It shows that she had definitely some kind of relationship with him.
It is the version of the prosecutrix that she wanted to marry Sonu and he refused. But she deposed at page number 4 of cross examination dated 11.09.2014 that she was not aware of his economic condition. She further deposed that she was not aware of his residential address. Her ignorance about these vital facts most requisite for marriage, shows that she was not misled by promise of marriage but she was madly in love with him and that is why she wanted to marry him despite the fact that she did not know his economic condition and State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 17 OF 18 residential address.
PW10 Naveen Kumar, brotherinlaw of the victim, deposed in crossexamination that prior to visiting the house of accused in connection with the talks of the marriage of the victim, they did not inquire about the status of the accused, his family members and relatives. PW11 Annu, sister of the victim, deposed in crossexamination that they did not inquire about the status of the accused and his family members because relation of the victim and Sonu were so intense that they did not deem it appropriate to inquire it.
Evidence of these two witnesses also shows that Sonu and Victim were badly in love and due that reason, they did not inquire about the back ground and status of Sonu and his family members. It suggests that the victim was a consenting party.
22. In view of above discussion, it is held that the prosecution has failed to prove the case. Hence, the accused Sonu and Madhu are acquitted of the offences they were charged with.
23. The personal and surety bonds of both accused are hereby cancelled. Sureties are hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the documents be returned to respective sureties.
File be consigned to record room.
Digitally signed by
UMED SINGH UMED SINGH GREWAL
GREWAL Date: 2019.11.16
15:52:18 +0530
Announced in the open Court (Umed Singh Grewal)
on this 16th November, 2019 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
State vs Sonu and Anr.//FIR No.134/13//PS - Adarsh Nagar//SC No.58228/16. PAGE 18 OF 18