Delhi District Court
State vs . Sonwati And Ors. on 23 May, 2015
IN THE COURT OF SHRI SANJIV JAIN
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No.02406R0257572013
SC No. : 234/13
FIR No. : 243/13
U/s. : 384/34 IPC, 376(D) r/w section 341/34 IPC and
67A IT Act r/w section 34 IPC
PS : Fatehpur Beri
State (Govt. of NCT of Delhi)
................... Complainant
Versus
1. Sonwati
W/o Sh. Bijender
R/o 264, Jatav Mohalla, Asola,
Fatehpur Beri, New Delhi
2. Mahesh
S/o Sh. Murari Lal
R/o 266, Jatav Mohalla, Asola,
Fatehpur Beri, New Delhi
3. Bijender @ Vijender
S/o Kirpal
R/o o 264, Jatav Mohalla, Asola,
Fatehpur Beri, New Delhi
.........................Accused persons
Date of Institution : 01.10.2013
Judgment reserved for orders on : 23.05.2015
FIR No. : 243/13
State Vs. Sonwati and ors.
PS : Fatehpur Beri, New Delhi. Page No. 1 of 19
Date of pronouncement : 23.05.2015
J U D G M E N T
1. On 04.08.2013, prosecutrix came at the police station Fatehpur Beri and got recorded her statement alleging therein that she was married on 22.04.1996. She has two children. About fifteen days ago, at about 12.00 noon, her devrani Sonwati, who has been living in front of her house, asked her to change the setting of her fridge. She went to her house. When she was shifting the fridge, Sonwati went out of the room and bolted the door from outside. Her brother in law/ accused Mahesh was hiding in that room. He came to her, put a knife on her neck and asked her to remove her clothes. He forcibly lifted her suit upward and opened the string of her salwar. He thereafter committed sexual intercourse with her against her wishes. He also made video of the incident from his mobile phone. She alleged that Mahesh and Bijender threatened her to show the video to everyone and demanded Rs. 30,000/ or Rs. 50,000/ from her. She alleged that Bijender sold the video in the village for Rs. 300 and Rs. 500/.
2. On this statement, case was registered vide FIR u/s 376(D)/384/120B/34 IPC at the police station. Prosecutrix FIR No. : 243/13 State Vs. Sonwati and ors.
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was given counseling by Ms. Pratima. Site plan was prepared at the instance of the prosecutrix. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. Accused Sonwati and Mahesh were arrested. Accused Bijender surrendered in the court. He was arrested. He got recovered his mobile phone. Prosecutrix and the accused persons were got medically examined. After the investigation, accused persons were sent for trial for the offences punishable u/s 376 (D)/384/120B/367/34 IPC.
3. After complying with the requirements contemplated u/s 207 Cr.P.C. the case was committed to this Court.
4. After hearing arguments, vide order dated 05.10.2013, prima facie case was made out against the accused persons. Charge u/s 384/34 IPC was framed against accused Mahesh and Bijender. Charge under section 376(D) r/w section 341/34 IPC and 67A IT Act r/w section 34 IPC was also framed against the accused Mahesh and Sonwati.
5. To substantiate its case, prosecution examined as many as thirteen witnesses.
PW 1 is the prosecutrix.
PW 2 Dr. Kusum did the medical examination of the prosecutrix vide MLC Ex. FIR No. : 243/13 State Vs. Sonwati and ors.
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PW 2/A. She stated that her hymen was not intact. There was no evidence of injury or trauma.
PW 3 HC Umesh joined the investigation with the IO on 05.08.2013. He witnessed the arrest of accused Sonwati vide memo Ex. PW 1/B and personal search memo Ex. PW 1/C. PW 4 Dr. Karthik Krishna did the medical examination of the accused Mahesh vide MLC Ex. PW 4/A. He found him capable of performing sexual intercourse under normal circumstances.
PW 5 Ct. Pawan Kumar, on 07.08.2013, joined the investigation of this case with the IO. He was present when accused Vijender and Mahesh surrendered before the court. IO also recorded their disclosure statements Ex. PW 5/E and PW 5/F in his presence. He had taken the accused Mahesh to AIIMS hospital and got him medically examined qua his potency vide MLC Ex. PW 4/A. He stated that accused Mahesh got recovered one white colour mobile phone from FIR No. : 243/13 State Vs. Sonwati and ors.
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an almirah in his house at Asola, Fatehpur Beri vide memo Ex. PW 5/G. He identified the phone Ex. P 1.
PW 6 Sh. Mahender Singh has stated that on 04.08.2013, at about 4.00 pm, he was sitting with his friends. Manoj, who was from his native village showed him a video clip on his mobile phone in which his aunt/ prosecutrix was naked having sex. He informed his uncle Santram. He stated that on the request of Santram, he sent the video on his mobile from the mobile of Manoj. He stated that he does not know how Manoj procured the video. He stated that the video was circulated in the village. PW 7 Prasadi has stated that on 04.08.2013, at noon time, he saw 34 children watching something on a mobile at chopal. He also watched the video in which prosecutrix/ wife of Santram was naked having sex with someone. He informed Santram.
PW 8 Rajesh is the uncle of accused Bijender @ Kalwa. He stated that he does not know FIR No. : 243/13 State Vs. Sonwati and ors.
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anything about this case. He did not see any obscene video of the wife of Sant Ram. He was declared hostile by the prosecution. On being cross examined by Ld. Addl. PP for State, he denied that in the morning of 02.08.2013, accused Vijender had asked him to see an obscene video of the prosecutrix. He also denied that he had seen the video on the mobile phone of accused Vijender @ Kalwa wherein prosecutrix was seen indulged in sexual activity. PW 9 Ms. Parmita Singh, counseled the prosecutrix and prepared the report Ex. PW 9/A. PW 10 Ms. Surabhi Sharma, Ld. MM recorded the statement of the prosecutrix under section 164 CrPC Ex. PW 1/C. PW 11 HC Devender, Duty officer recorded the FIR Ex. PW 11/A, made endorsement Ex. PW 11/B on the rukka and issued certificate under section 65 B of the Indian Evidence Act Ex. PW 11/C. PW 12 Sant Ram, is the husband of the prosecutrix.
FIR No. : 243/13 State Vs. Sonwati and ors.
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PW 13 SI Surekha is the IO of the case. She tendered the FSL report Ex. PW 13/A in respect of video.
6. After the evidence of prosecution, statement of all the three accused persons under section 313 CrPC were recorded wherein, they denied all the incriminating evidence against them and pleaded their innocence. They did not examine any witness in their defence.
7. I have heard the arguments advanced by Sh. S. K. Attri, Ld. Counsel for accused persons and Ld. Addl. PP for the State.
8. Ld. Counsel for the accused persons contended that there are material contradictions in the testimony of the prosecution witnesses, which go to the root of the case and falsify the prosecution case. There was no recovery of knife from the possession or at the instance of the accused. The Mobile phone recovered from the possession of the accused, did not contain the obscene video of the prosecutrix. Even that video does not show that the accused Mahesh was indulged in sexual intercourse with the prosecutrix. The prosecution did not examine Manoj, who had informed PW 6 from whom the husband of the FIR No. : 243/13 State Vs. Sonwati and ors.
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prosecutrix came to know of the incident. There was delay in registration of the FIR.
9. Ld. Addl. PP for State on the contrary argued that the testimony of the prosecutrix is consistent and cogent and is sufficient to base conviction of the accused persons. There was no motive with the prosecutrix to falsely implicate the accused persons. It was the accused Mahesh who had prepared the video from his mobile that is why he is not visible in the video
10. I have considered the arguments and gone through the entire material on record.
11. Section 375 defines rape. It reads as:
"Rape A man is said to commit
"rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or FIR No. : 243/13 State Vs. Sonwati and ors.
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any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
12. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she FIR No. : 243/13 State Vs. Sonwati and ors.
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wanted. Submissions under the influence of fear or terror or false promise is not consent.
Age of the prosecutrix
13. In the instant case, the investigating agency did not collect the proof of age of the prosecutrix but from the MLC Ex. PW 2/A and statement of the prosecutrix Ex. PW 1/A, I find that the age of the prosecutrix at the time of alleged incident was 34 years. The prosecutrix in her evidence when examined as PW 1 has given her age as 34 years. Viewed thereof, the prosecutrix was above 18 years of age at the time of incident, thus major and capable of giving consent.
Whether the accused persons are guilty of the offences punishable under section 376D/341/34 IPC, 67A, IT Act r/w section 34 IPC and 384/34 IPC ?
14. For deciding this question, it is relevant to appreciate the testimony of the prosecutrix and other witnesses with the relevant record.
15. PW 1 prosecutrix has stated that accused Sonwati is her Devrani, who lives opposite to her house. In August 2013, at about 12.00 noon, she called her at her house to shift the fridge. When she was pulling the fridge, accused Sonwati FIR No. : 243/13 State Vs. Sonwati and ors.
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went out of the room and bolted it from outside. Accused Mahesh/ her Dever had hided himself in the room. He came out, put a knife on her neck, forcibly removed her clothes and committed sexual intercourse with her. He also made the video of incident. She stated that she tried to resist the accused but he threatened to kill her with the knife. He then knocked the door. Sonwati opened the door and Mahesh went away. She stated that in the evening accused demanded Rs. 50,000/ and started blackmailing her that he would make the video public in the village. He then sold her video to the village people for Rs. 500 or so. She stated that accused Bijender, her dever distributed the video in the village for Rs. 300 to Rs. 500, which also reached to her husband and then she told him the entire incident. She along with her husband went to the police station and gave statement Ex. PW 1/A. She stated that she was medically examined by the doctor, whom she also narrated the incident. She stated that her statement under section 164 CrPC Ex. PW 1/C was also recorded. She also proved the photos Ex. P 1 to P 7 of the place of occurrence. She stated that she does not know where the accused Mahesh had concealed himself in the room. Although she FIR No. : 243/13 State Vs. Sonwati and ors.
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stated that she raised hue & cry during the incident but when she was confronted with her statement Ex. PW 1/A, this factum was not found mentioned. She stated that accused was carrying a knife in his right hand. He made the video after leaving the knife. She stated that she made hue and cry while coming out of the house but no one came from the adjoining houses.
It is pertinent to mention that the alleged incident came to the notice of PW 12 the husband of the prosecutrix on 04.08.2013, from one of the natives of his village, who had told him that he had seen the video of his wife on someone's mobile. He stated that he immediately went to his house, inquired the matter from his wife and then she narrated the incident happened with her about fifteen days ago. The question now arises when she had raised hue & cry after coming from the house after the alleged incident, what made her not report the incident to her husband and why she remained quite for such a long time. It assumes importance because in the instant case, PW 1 has stated that the accused immediately after the incident started blackmailing her to make the video public and made a demand of Rs. 50,000/ from her.
FIR No. : 243/13 State Vs. Sonwati and ors.
PS : Fatehpur Beri, New Delhi. Page No. 12 of 19
16. The instant video was played before me. I found the prosecutrix behaving quite normal during the incident. No inference can be drawn from that video that she was under
threat or she was forced to have such relations with the person. It appears to be a consented sex. The other person indulged in sexual intercourse with the prosecutrix is not visible in the video.
17. It is noteworthy that the prosecutrix was quite old and matured. She should have reported the incident to her husband immediately after the incident. Rather the testimony of PW 12 reveals that he came to know of the incident through someone. No plausible explanation came from the side of the prosecutrix as to why she kept quiet for about fifteen days when there was threat perception from the side of the accused persons.
18. PW 12 has stated that one of his native village had told him the incident and thereafter, he asked his nephew Mahender to procure the said video since he could not procure the same. He also gave his mobile to Mahender to get the said video transferred in it. Mahender then transfered the video in his mobile, from where he saw the obscene video. He stated that police had seized his mobile FIR No. : 243/13 State Vs. Sonwati and ors.
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phone vide memo Ex. PW 12/A. PW 6 Mahender has stated that he came to know of video from Manoj, who showed him the clip and thereafter, he informed PW 12. In this case, prosecution did not examine Manoj, who had first informed PW 6 of this video. PW 6 could not answer from where Manoj procured the video. The question now arises whether it was Mahender PW 6 who informed PW 12 about the video or the factum of video had already come in the notice of PW 12. In the absence of examination of Manoj, it remained a mystery as to who or how the video was circulated in the village. PW 8 has stated that he never saw the video. On being cross examined by Ld. Addl. PP, he denied that accused Virender had shown him the video and asked Rs. 100 from him to see the video. He totally turned hostile and did not support the case of prosecution in any manner.
19. For the sake of arguments, even if it is assumed, though denied, that it was the accused Mahesh, who had committed sexual intercourse with the prosecutrix and prepared the video but in the video, the prosecutrix did not seem to be perplexed or frightened, rather she appeared to be consenting for the sexual intercourse. The story of calling FIR No. : 243/13 State Vs. Sonwati and ors.
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PW 1 by the accused Sonwati in her house for shifting the fridge also looks to be unnatural and unworthy of belief. I have also seen the photographs of the room. I do not find any space for hiding the accused as alleged by PW 1. The things appear to have not been happened in the manner PW 1 has projected. PW 1 has stated that she was never counseled by any lady but on the contrary PW 9 has stated that on the request of the police, she had gone to the police station Fatehpur Beri where she had counseled the prosecutrix. PW 1 has stated that he had stated in her statement Ex. PW 1/C that accused had concealed himself in the room and when she entered, he put a knife on her neck and he after committing the rape knocked the door and accused Sonwati opened the door from outside. On perusal, I find that such facts do not form part of the statement Ex. PW 1/C.
20. PW 12 has stated that the video contained the voice of Mahesh. In the instant case, prosecution did not collect the voice sample of accused Mahesh to match with the voice appearing in the audio video so it cannot be conclusively held that the audio video contains the voice of Mahesh. It is also to be noted that PW 13/ IO in her testimony has FIR No. : 243/13 State Vs. Sonwati and ors.
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stated that the mobile phone recovered at the instance of accused Mahesh did not contain any obscene scene. The stand of the accused persons since beginning is that they have been falsely implicated in this case.
21. The inherent improbabilities/ contradictions coming in the testimony of the prosecutrix/ PW1, make the prosecution case highly suspicious and make her testimony unworthy of credence, hence no implicit reliance can be placed on her testimony. I get support from the case of Kalyan and ors. vs. State of UP, 2001, Crl. L J. 4677 and Narender Kumar Vs. State, (2012) 7 SCC 171. It was held in the case of Narender Kumar supra that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
FIR No. : 243/13 State Vs. Sonwati and ors.
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22. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubt in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration"
23. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it FIR No. : 243/13 State Vs. Sonwati and ors.
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was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
Conclusion
24. In the light of what has been stated above, I am of the view that present case is not free from suspicion. It would FIR No. : 243/13 State Vs. Sonwati and ors.
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be highly unsafe to base the conviction of the accused persons on the basis of the evidence and material available on record. I therefore, acquit the accused persons of the offences punishable under section 384/34 IPC, 376(D) r/w section 341/34 IPC and 67A IT Act r/w section 34 IPC, giving them benefit of doubts. Their bail bonds be cancelled. Their sureties be discharged. Accused persons are however, directed to furnish bail bonds in the sum of Rs. 25,000/ with one surety each in the like amount, in compliance of section 437A Cr.P.C.
25. Case property be confiscated to the State after the expiry of period of revision or appeal.
26. File be consigned to record room. Announced in the open court today i.e. 23.05.2015 (Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 243/13 State Vs. Sonwati and ors.
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