Delhi District Court
State vs . 1. Pradeep S/O Ramesh Kumar on 15 April, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 86/13
Unique Case ID No.02405R0311742011
State Vs. 1. Pradeep s/o Ramesh Kumar
R/o WZ-400, Palam Village,
New Delhi.
Date of Institution :03.10.2011.
FIR No.157 dated 15.06.2011.
U/s. 354/506/376/377 IPC.
P.S. Palam Village.
Date of reserving judgment/Order :03.04.2013.
Date of pronouncement :15.04.2013.
JUDGMENT
1. The accused has been facing trial for having committed the offences punishable u/s 377 IPC, u/s 376 IPC and u/s 506 IPC.
2. It is the case of the prosecution that the complainant Santosh Kumari, the mother of the prosecutrix came to the Police Station alongwith the prosecutrix and the prosecutrix on 15.6.2011 and lodged a complaint that her daughter i.e. the prosecutrix has been sexually assaulted. Her statement was recorded by ASI Asha Rani wherein she stated that she is residing at house No. WZ-415, Palam Village alongwith her family and is working as a sweeper in MCD. She further stated that on 14.6.2011, she was not feeling well and had taken leave from her office. In the evening at about 3 SC No.86/13. Page 1 of 12 pm, she sent her daughter i.e. the prosecutrix namely 'S' (real name of the prosecutrix has been withheld in order to protect her identity) age 20 years, who is mentally unsound, to fetch the milk from the market. After fetching milk 'S' demanded sum money for purchasing 'cheej'. She gave her Rs. 2/- and 'S' went outside to the shop. After sometime, 'S' returned and told her weepingly that Pradeep uncle had embraced her in Kuain Wali Gali near the temple, kissed her and also pressed her breasts. When 'S' raised alarm, he threatened her and told her not to say anything to her mother. He also threatened her that in case she disclosed anything at her house, he would kill her.
3. After recording statement of complainant, ASI Asha Rani took the prosecutrix to DDU Hospital and got her medical examination conducted. Thereafter she got the FIR registered u/s 354/506 IPC. She accompanied the prosecutrix to the spot of incidence but the prosecutrix was not able to identify the particular place where she was sexually assaulted by the accused Pradeep and, therefore, no site plan of the spot could be prepared. She took the photographs of the spot by her mobile phone. She also made inquiries from the passerbys in the gali. The accused was summoned to the Police Station and his medical examination was got conducted from DDU Hospital. Thereafter he was arrested in this case. An official from Delhi Commission for Women was called to the Police Station who also recorded the statement of the prosecutrix in separate room in the Police Station and provided her report to the IO. The statement of the prosecutrix u/s 164 Cr.P.C. was got recorded in which she stated that accused Pradeep had inserted his male organ in his female organ as well as her mouth.
SC No.86/13. Page 2 of 12In view of the aforesaid statement of the prosecutrix, Section 376 and 377 IPC were added to the FIR.
4. After completion of the investigation, charge sheet was laid before the concerned Ld. Magistrate who committed the case to the Court of Sessions for trial.
5. On 19.12.2011 charges for having been committed the offences punishable u/s 377 IPC, u/s 376 IPC and u/s 506 IPC were framed against the accused. The accused pleaded not guilty to the aforesaid charges and hence trial was held.
6. The prosecution has examined 17 witnesses to prove the charges against the accused. The accused was examined u/s 313 Cr.P.C. on 03.04.2013 wherein he denied all the incriminating facts and circumstances put to him and claimed false implication. He further stated that his mother is also working in MCD alongwith the mother of the prosecutrix and there had been some quarrel between his mother and the mother of the prosecutrix as a result of which he has been falsely implicated in this case. The accused however, did not lead any evidence in defence.
7. I have heard ld. APP and ld. Counsel for accused and have perused the entire material on record. I have also considered the written submissions filed by the ld. Counsel for the accused.
8. In the cases involving offence of rape, the testimony of the prosecutrix is the most crucial and relevant piece of evidence. The statement of the prosecutrix, if found to be worthy of SC No.86/13. Page 3 of 12 credence and reliable, requires no corroboration and the court may convict the accused on her sole testimony. However, as held by the Supreme Court in Udai Vs. State of Karnatka AIR 2003 SC 1639, even in case of rape, onus is always on the prosecution to prove affirmatively, all the ingredients of the offence, which seek to establish and such onus never shifts. It is not the duty of the defence to explain as to how and why the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take the support from the weakness of case of the defence. However, the great the suspicion against the accused and however strong the moral belief and the conviction of the Court, unless the offence of the accused is established, beyond reasonable doubt on the basis of legally admissible evidence and the material on record, the conviction cannot be ordered. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
9. The Supreme Court has again in Tamezudin @ Tammu vs. State of NCT of Delhi 2009 (4) JCC 2809 held as under:-
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic would be doing violence to the very principles which govern the appreciation of evidence in criminal matters".SC No.86/13. Page 4 of 12
10. Keeping in view the golden principles enunciated by the Supreme Court, let me now examine the testimony of the prosecutrix recorded in this case. She has been examined as PW-10. Since it was conveyed to the court that the prosecutrix is not of sound mental condition, ld. Judge who recorded her testimony has taken care to put some formal questions to her in order to ascertain whether or not she is able to understand the questions and to give proper answers. It is after gaining such satisfaction that the ld. Judge has proceeded to record her testimony. It would be appropriate to reproduce here the examination in chief hereunder:-
"I do not remember the date of incident. I had gone to fetch milk. I had demanded Rs. 2/- for eatables ( cheezo) from my mother. Accused Pradeep, my chacha present in the court (correctly identified by witness) had committed wrong act (gandi baat) with me. Accused was standing at Hanuman Temple. Accused had taken me there by catching hold my hand. I asked the accused let me free as I wanted to go to my house but accused did not leave me. Firstly, I had returned to my home and again I had gone to take eatables. Accused had removed my salwar and also removed my underwear. Accused told me that he would marry with me. Thereafter he removed his underwear and put his penis in my private part. Accused had also touched my private parts.SC No.86/13. Page 5 of 12
I informed my mother about the incident. My parents took me to PS. The lady police official took me to the spot. I was also taken to hospital for medical examination. I had also brought to the court where my statement was recorded."
11. PW-10 also identified her thumb impression on her statement u/s 164 Cr.P.C. and proved the same as Ex. PW10/A. In her cross examination she admitted that she has given statement to the Police for the first time after discussion with her mother. She also admitted that she had told the police in her statement, whatever her mother had asked her to tell. She also admitted that she had told the true facts to a lady from NGO called by the Police who had examined her.
12. She was confronted with her statement u/s 161 Cr.P.C. (Ex. PW10/DA) wherein she had not mentioned that accused had committed rape upon her; that accused was standing at Hanuman Mandir and had caught hold of her hands; that she requested him to let her go but he did not leave her;that accused had removed her salwar and underwear and also told her that he would marry her; that accused had removed his underwear too and put his penis into her private part and that he had also put his penis into her mouth and that he had threatened to kill her. She admitted that she had not told the police in her statement that accused told her that he loves her and that he made her to lay down on the road and kissed her and when she raised alarm, he left her.
SC No.86/13. Page 6 of 1213. It is, therefore, evident from the testimony of the prosecutrix that she has made significant and material improvements upon her initial statement recorded by the Police. In that statement, she had simply stated that when accused met her on the way, he hugged her, kissed her and put his hands on her breasts. There is no mention of taking off clothes and commission of rape in her statement u/s 161 Cr.P.C.. Secondly, as per her testimony, the accused committed rape upon her on the road near Hanuman Temple, which is highly improbable. It is very difficult to believe that a person would commit rape upon a girl in broad day light at a public road. More importantly she admitted that she had given statement to the Police after discussion with her mother and stated whatever her mother had told her to state. Manifestly, therefore, the initial statement given by her to the Police too was not voluntary but a tutored one. While deposing before this court, she has gone too far ahead and stated a totally improved version. I consider that it will be disastrous and against the canons of justice to rely upon such inconsistent and improved testimony of the prosecutrix, which not only seems to be improbable but also does not inspire any confidence.
14. The mother of the prosecutrix is the person who had seen the prosecutrix first of all after the alleged incident of rape and FIR in this case has been registered on her statement. She has been examined as PW-9. She has deposed that on 14.6.2011, she was present at her house as she had taken leave from her office. She sent her daughter i.e. the prosecutrix to market to fetch milk. Prosecutrix returned after some time and demanded money from her for some eatables. She gave her Rs. 2/- and prosecutrix went SC No.86/13. Page 7 of 12 to market again. After 15 to 20 minutes the prosecutrix returned while weeping and told her that Pradeep uncle had met her, took her in Kuain wali gali and committed wrong act with her. She awaited for her husband and after arrival of her husband, they took the prosecutrix to the Police Station where her statement was recorded.
15. It may be noted here that this witness in her statement to the Police (Ex. PW9/A), which is the foundation of the FIR in this case, has stated that her daughter told her that Pradeep uncle had only hugged her, kissed her and palped her breasts. She has admitted this fact in her cross examination also. In her examination in chief, she mentions that her daughter told her that Pradeep uncle had committed wrong act with her but she had not explained what kind of wrong act. If it is to be taken as forcible sexual intercourse, then it is a clear improvement upon her previous statement and does not deserve consideration.
16. Here it would be relevant to refer to the deposition of PW-3, the father of the prosecutrix. He deposed that on 14.6.2011, he received information about the incident and returned to his home, where his wife told him that one Pradeep has teased their daughter i.e. the prosecutrix.
17. It is, therefore, manifest that the prosecutrix had not told her mother that the accused had committed forcible sexual intercourse or oral sex with her. She only stated to her mother that the accused Pradeep hugged her, kissed her and touched her breasts and her mother conveyed the same to her husband as well SC No.86/13. Page 8 of 12 as to the police officials in a statement Ex. PW9/A.
18. The allegation that the accused committed vaginal sex as well as the oral sex with the prosecutrix has come out for the first time in the statement of the prosecutrix u/s 164 Cr.P.C. (Ex. PW10/A) which has been recorded on 7.7.2011 i.e. after about three weeks of the incident. Therefore, the possibility that the prosecutrix may have been tutored during that time to level false allegations against the accused by her mother or somebody else cannot be ruled out and in my opinion, that statement, which runs counter to what the prosecutrix had stated to her mother at the first instance, does not merit any consideration.
19. It is also the case of the prosecution itself, as deposed by the investigating officer PW-16 also that a lady official from DCW had reached the Police Station in the morning of 15.6.2011 and had counseled the prosecutrix. PW-16 has further stated that the lady official also submitted her report. For the reasons, best known to the prosecution, that lady official from DCW has not been cited as a witness and no effort has been made to prove the report submitted by her, which, though, has been annexed with the charge sheet and is mark D-1. Even though the said report has not been proved by any of the witnesses, still since it is a document of the prosecution itself, it can be read if it goes against the case of the prosecution. This report has been submitted by Ms. Magdleen Marim wherein it is mentioned as under:-
"I took the prosecutrix to the room of ATO for counselling where she told me that her mother had SC No.86/13. Page 9 of 12 sent her to fetch milk. She brought milk and then her mother gave her Rs. 2/- and she again went out for purchase cheeze. She started taking prashad near Kuain Wali Gali and in the mean time, a neighbourhood auntie came, whose name she did not know and she asked her to come with her but she did not go with her and kept on taking the prashad. Thereafter her mother came to the temple and started beating her and dragged her to home. On the way Pradeep uncle met them and her mother started abusing him. On reaching home, her mother beat her severely and asked her to say as advised. Her mother told her that she would take her to Police Station. I asked her what her mother had tutored her to say and she stated that her mother had told her to say that wrong act has been committed with her. I asked her who has committed wrong act with her and she replied that nobody. She further told me that I should not say all this to her mother and then started weeping bitterly. I called her mother inside and asked her why she has been beating the prosecutrix and she told me that prosecutrix is mentally unsound and she keeps on roaming about here and there after her leaving for work."
20. I find no reason to discard this report when it is the document of the prosecution itself and no witness produced by the prosecution including the IO has disputed its contents. The prosecutrix, in her cross examination, has deposed that she had SC No.86/13. Page 10 of 12 stated true facts to the lady from NGO. This report demonstrates that no incident at all had taken place between the accused and the prosecutrix and the mother of the prosecutrix had tutored her to gave a false statement leveling baseless allegations against the accused.
21. Significantly medical evidence on record does not support the prosecution case. The MLC (Ex. PW1/A) as well as testimony of the doctor (PW8) show that the prosecutrix did not give any history of fondling or penetration. No bleeding was found on the private part of prosecutrix. Even though hymen was found torn yet MLC does not show that it was a fresh tear. Further the doctor in his subsequent opinion Ex. PW8/B has himself stated that hymen can get torn due to various reasons, rape may be one of them. Torn hymen is not a definite proof of rape or sexual intercourse. It has to be considered alongwith the other evidence on record.
22. The ld. APP had argued that as per the report of FSL, semen stains were detected on the salwar and underwear of the prosecutrix which were seized by the doctor after the medical examination of the prosecutrix and this is indicative of prosecutrix having been subjected to forcible sexual intercourse. The argument is too weak to be accepted. Firstly for the reason that there is no evidence that these semen stains are that of accused. That apart, no human semen was found on the vaginal swab and pubic hair of the prosecutrix which also had been collected by the doctor who examined the prosecutrix. The prosecutrix was examined 15.6.2012 at 1 am in the night and if she was raped by SC No.86/13. Page 11 of 12 accused on 14.06.2012 at about 3 pm, (as alleged by prosecution), semen could have been definitely found in the vaginal swab. Modi in his Medical Jurisprudence and Toxicology has noted:-
"(The presence of spermatozoa in vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17days, and by Morrison (1972) upto to 9 days in vagina and 12 days in cervix. However, in the vagina of a dead woman, they persist for a longer period."
23. The prosecutrix in this case was examined within 12 hours of the alleged incident and the evidence does not show that she had washed herself after the incident. In these circumstances, absence of spermatozoa in her vaginal swab indicates that she had not been sexually assaulted one or two days before her medical examination.
24. The conclusion which is reached is that the evidence lead by the prosecution is infirm, unreliable and does not support the charges against the accused. The accused deserves to be acquitted and is hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 15.04.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.86/13. Page 12 of 12