Delhi District Court
Rajoo vs . State Of Mp, Air, 2009 Sc 858 : on 26 February, 2015
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0100672011
SC No. : 21/13
FIR No. : 305/08
U/s. : 376 IPC
PS : Mehrauli
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Shyam Sunder
S/o Sh. Niranjan
R/o G175A, Jagjit Nagar,
Indira Gali No. 4, New Usmanpur,
New Delhi
.........................Accused
Date of Institution : 05.01.2013
Judgment reserved for orders on : 25.02.2015
Date of pronouncement : 26.02.2015
J U D G M E N T
1. The case of the prosecution is that on 15.06.2008, prosecutrix came at the police station Mehrauli and got recorded her statement alleging therein that she has been living with her adopted son/accused in a rented house. She works as a maid in FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 1/28 kothis. She was married to one Bijoy at village Kulia District Balasore, Orissa at the age of 1314 years. Her husband had divorced her after three months of her marriage. She has taken the accused in adoption, who was son of her brother's sister in law. About 89 years ago she has come at Delhi with her adopted son. She alleged that for some days, the accused had been beating and molesting her. On 14.06.2008, at about 2.00 am, accused committed sexual intercourse with her forcibly and left the house early in the morning.
On her statement, case was registered vide FIR No. 305/08 at the police station Mehrauli. The prosecutrix was taken to AIIMS for her medical examination. During her medical examination, she had told the doctor that the accused had been abusing her sexually for the past few months. The first attempt was made about three months ago. She never had sexual relations with her husband. The previous attempts of sexual assault were on 07.06.2008 and 12.06.2008.. Her underwear and vaginal smears were taken and handed over to the IO along with the sample seal.
The prosecutrix was sent for counselling. On 26.06.2008, she gave her statement under section 164 CrPC before the Magistrate stating therein that she had given a false statement to the police. The accused had only abused and beat her. She denied that the accused had raped her. As per the report of FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 2/28 NGO, the prosecutrix had denied of having been raped by the accused rather the prosecutrix wanted to have full control over the accused and she was habitual of making complaints. She wanted him to marry with the daughter of her aunt Kanchan Bala. However the accused wanted to marry with a girl of his choice.
2. On the basis of the statement, cancellation report was filed.
After getting notice, the prosecutrix filed her objections and thereafter, the case was directed to be further investigated. During investigation, the statement of the prosecutrix was again got recorded, wherein she alleged of having been raped by the accused. The accused was arrested. He was got medically examined. His blood in gauze was taken.
3. The exhibits were sent to the FSL. As per the FSL report dated 25.01.2010, the blood and semen could not be detected on her underwear, however human semen was detected on the exhibits i.e. vaginal smear slides of the prosecutrix. As per the report dated 05.04.2010, blood was detected in blood in gauze of the accused but it had no reaction regarding species of origin. DNA Finger Print test was conducted on the exhibits i.e. the vaginal smear and blood in gauze of the accused and as per the report dated 30.11.2010, no DNA could be isolated from the exhibits.
4. Since the underwear of the prosecutrix was not sent for DNA FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 3/28 finger printing, so the blood in gauze of the accused was taken again on 26.04.2010. DNA finger printing was again carried out and as per the report dated 24.01.2014, whitish stain was found on very small area of the underwear of the prosecutrix which had five cuttings already taken by biology division for biological examination. Its examination revealed that DNA could not be isolated from the vaginal smear and the blood in gauze of the accused taken on 26.04.2010, however alleles from the blood in gauze of the accused taken for the first time during his examination in the year 2009 were accounted in the alleles from the underwear of the prosecutrix and it was concluded that DNA profile from the source of underwear is similar to the DNA profile from the source of blood in gauze of the accused taken in the year 2009.
5. During investigation, statement of witnesses were recorded. Thereafter the charge sheet was filed against the accused for the offence punishable under section 376 IPC.
6. Ld. Predecessor of this court after hearing arguments, vide detailed order dated 24.08.2011, made out prima facie case against the accused and framed the charge under section 376 IPC, to which accused pleaded not guilty and claimed trial.
7. To substantiate its case against the accused, prosecution examined as many as 16 witnesses.
FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 4/28 PW 1 is the prosecutrix. She in her examination reiterated the facts as stated in her complaint and proved it as Ex. PW 1/A. She also admitted to have given her statement before the Magistrate Ex. PW 1/B and Ex. PW 1/C. She stated that since her case was not properly investigated, she filed the complaint under section 156(3) CrPC Ex. PW 1/D. She stated that accused is the son of her brother's sister in law. She admitted that in her first statement under section 164 CrPC recorded on 26.06.2008, she did not level allegations of rape against the accused and had only alleged of beatings by the accused. She also admitted that she made the second statement under section 164 CrPC on 18.08.2009, wherein she had levelled the allegations of rape against the accused. She admitted that after the incident, she and the accused lived together for about two months. She admitted that she wanted the accused to marry with some girl. She stated that her clothes got torn in the incident and she also suffered injury on her ear and forehead. She stated that no social organization contacted her in relation to this incident. She was shown the FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 5/28 underwear Ex. P1 which before opening had the seal of FSL. After seeing she stated that Ex. P1 is neither torn nor there is any spot on it and the same was seized by the doctor in her presence. PW 2 Ct. Sher Singh had taken the accused on 25.10.2009 to AIIMS hospital for his medical examination on the directions of the IO/ SI Pratibha. He collected the exhibits and sample seal and handed over to the IO vide memo Ex PW2/A. He again on 26.04.2010 took the accused to AIIMS for his medical examination. He collected the exhibits and handed over to the IO vide memo Ex. PW2/B. PW 3 HC Kartar Singh recorded the FIR Ex.
PW 3/A on the basis of the rukka received from WASI Adesh Kumari.
PW 4 Ct. Nem Chand on 31.08.2009 collected two sealed pullandas bearing the seal of Forensic Medicine AIIMS and deposited in the FSL Rohini. He stated that so long as pullanda were with him, their seals were intact.
PW 5 Dr. Rajnikanta Swain proved the MLC of the accused Ex. PW5/A prepared by the Dr. FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 6/28 Sushil Sharma. He stated that the doctor had collected the blood in gauze which he after sealing gave to the police along with the sample seal.
PW 6 Dr. Alpana Sharma examined the prosecutrix vide MLC Ex. PW 6/A. She recorded the history of the incident narrated by the prosecutrix. She stated that no signs of bruises on breast, abdomen and thighs were seen, however hymen was ruptured. She had taken the vaginal swabs, seized the undergarment and handed over to ASI Adesh Kumari.
PW 7 Sh. Preetam Singh, had recorded the statement of the prosecutrix under section 164 CrPC Ex. PW 1/B on 26.06.2008 and had given the certificate to its correctness Ex. PW 7/B. PW 8 HC Jaipal Singh was the MHC(M) with whom exhibits were deposited on 25.10.2009 & 26.04.2010 of which he made the entries in the register Ex. PW 8/A and 8/B. He got the two pullandas and sample seal sent to FSL vide RC Ex. PW 8/C on 31.08.2009. He again on 20.11.2009 sent a pullanda containing blood in gauze of the accused along with the sample seal FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 7/28 vide RC Ex. PW 8/D. Again on 27.04.2010, he sent two pullandas, one bearing the seal of NK FSL Delhi containing the vaginal smear of the prosecutrix and other bearing the seal of Department of Forensic Medicine AIIMS containing the blood sample of the accused along with the sample seal vide RC Ex PW 8/E. PW 9 Dr. Ram Niwas did the medical examination of the accused on 26.04.2010 vide MLC Ex. PW 9/A collected blood in gauze, sealed it and gave to the IO along with the sample seal.
PW10 ASI Adesh Kumari was the first investigating officer. She recorded the statement of the prosecutrix Ex. PW 1/A, made endorsement Ex. PW 10/A, got the case registered, took into possession the exhibits of the prosecutrix including her undergarment and vaginal smear along with the sample seal vide Ex. PW 10/B and deposited it with the malkhana. She on 26.06.2008, got the statement of the prosecutrix recorded under section 164 CrPC and on the basis of her statement she prepared the cancellation report. She admitted that she had FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 8/28 investigated the case properly.
PW 11 WSI Pratibha Sharma was the second investigating officer. Pursuant to the protest petition filed by the prosecutrix, she did further investigation, recorded her statement under section 161 CrPC, got recorded her statement under section 164 CrPC, sent the exhibits to FSL, tendered the FSL report including the DNA report Ex. PW 11/A, formally arrested the accused vide memo Ex. PW 11/B and submitted the charge sheet. She admitted that she did not inquire the reasons as to why the prosecutrix had changed her statement.
PW 12 Sh. S. P. S. Laler, recorded the second statement of the prosecutrix u/s 164 CrPC Ex. PW 12/B and appended a certificate regarding its correctness. He stated that prosecutrix had not disclosed to him that she had earlier given a statement under section 164 CrPC in favour of the accused.
PW 13 Sh. A. K. Srivastava was Deputy Director, DNA Biology, FSL Rohini. He did the examination of the exhibits in the FSL and forwarded his report Ex. PW 11/A vide letter Ex. FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 9/28 AA. He stated that due to non availability of the source of exhibits, no DNA opinion was offered in his report. He stated that pursuant to letter dated 18.12.2013, regarding DNA finger printing test, he again analyzed the samples and gave his report dated 24.01.2014 Ex. PW 13/A. He stated that underwear of the prosecutrix was not sent at the time of initial report.
PW 14 HC Ved Pal brought the register no. 19 and 21 containing the relevant entries regarding sending of exhibits to FSL vide RC Ex. PW 14/A on 19.12.2013 through Ct. Vipin. He denied that these exhibits were not kept in proper condition or the same were merged in water and had been putrefied before sending to FSL for the second time.
PW 15 Ct. Vipin had taken the exhibits on 19.12.2013 to FSL. He stated that parcels were not tampered in any manner, till they remained in his possession.
PW 16 Ct. Vijender singh collected the exhibits from the FSL on 11.03.2014 and deposited with the MHC(M).
FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 10/28
8. After the prosecution evidence was over, the statement of the accused was recorded under section 313 CrPC, wherein he admitted that he had been residing with the prosecutrix in the same house. He denied the incriminating evidence against him and stated that he was falsely implicated. He stated that he had been living with the prosecutrix for about four years and affording all the expenses since the prosecutrix was in his relation as Bua. In 2008, he had told the prosecutrix that he wanted to marry with a girl and live separately but the prosecutrix objected and asked that he should marry with her niece which he refused. He stated that the prosecutrix because of which warned him to falsely implicate in heinous case. On 15.06.2008, she made a false complaint against him. He stated that when he promised to marry with her niece and not to leave her house, she made the statement in his favour but again when he refused to marry with her niece and decided to live separately, she made the complaint and statement against him due to enmity. He stated that report given by PW13 is not correct. Exhibits were not kept in safe custody.
9. In defence, accused examined three witnesses Sh. Nihar Indu as DW 1, Sh. Uttam Kumar as DW 2 and himself as DW 3.
DW 1 is the fatherinlaw of the accused. He deposed that he got married his daughter with the accused on 14.02.2009. He was known to FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 11/28 him since his childhood. He stated that the prosecutrix / bua of accused implicated the accused in the false case as she did not want the accused to marry with his daughter. He stated that accused used to live with the prosecutrix and pay rent of the same. He also used to bear the household expenses. He stated that after the complaint, he cancelled the engagement of his daughter with the accused, however when she withdrew her complaint, he thinking that the said complaint might be a false complaint, decided to marry his daughter with the accused. He stated that again the prosecutrix changed her statement and implicated the accused falsely in this case.
DW 2 is the maternal father in law of the accused. He stated that marriage of the accused was solemnized after registration of this case. He stated that present case is a false case so he got Geeta Das married with the accused.
Accused examined himself as DW 3. He stated that the second DNA report is not genuine. He himself had visited the Malkhana of police station Mehrauli and found that there was FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 12/28 carelessness in keeping the samples in the Malkhana. He also watched the police personnel of Mehrauli police station after taking lunch in the Malkhana, throwing water on the samples. He stated that there is a possibility that the samples of prosecutrix and his blood sample had mixed with each other.
10. I have heard the arguments advanced by Ld. counsel Sh. Bal Kishan for the accused, Ld. Addl. PP for the State and Sh. Ravindra Narayan for the complainant.
11. It was argued by Ld. counsel for the accused that the statement of the prosecutrix under section 164 CrPC was recorded twice, firstly on 26.06.2008 and secondly on 18.08.2009. In her first statement, she denied having been raped by the accused. Ld. counsel stated that there was dispute between the accused and the prosecutrix since she wanted him to marry with a girl of her choice, which he did not want. Ld. counsel stated that there are material contradictions in the testimony of PW1, which does not find support from the medical evidence. Ld. counsel stated that DNA analysis was conducted twice and possibility of tampering with the samples cannot be ruled out. Ld. counsel stated that the prosecutrix was very possessive for the accused and when he expressed his FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 13/28 desire to marry with a girl of his liking, she got infuriated and made the allegations of rape, which are false and frivolous.
12. Ld. Addl. PP on the contrary argued that the testimony of the prosecutrix is cogent and consistent. She had immediately reported the matter after the incident. The DNA report also corroborates the testimony of the prosecutrix. Ld. Addl. PP submitted that second DNA was conducted since during first DNA, the underwear of the prosecutrix was not sent. Ld. Addl. PP submitted that the prosecutrix on getting the notice of cancellation, immediately filed the protest petition on the basis of which, further investigation was directed and in her statement recorded under section 164 CrPC on 18.08.2009, she had narrated the true facts as stated in her complaint, on the basis of which the present case was registered.
13. Ld. counsel for the prosecutrix submitted that the prosecutrix was under the threat when her first statement under section 164 CrPC was being recorded. FSL duly corroborates the testimony of the prosecutrix. Semen was found in the vaginal smear of the prosecutrix on analysis. PW 6 who had recorded the history during her medical examination has also corroborated the testimony of the prosecutrix. Ld. counsel submitted that the complainant/ prosecutrix had nurtured the accused since his childhood being his adoptive mother but he committed the offence which falls under the category of rarest of rare. FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 14/28
14. I have considered the submissions and gone through the entire material placed on record.
15. It emerges from the testimony of the witnesses that the prosecutrix was 45 years of age at the time of incident. She was married to one Bijoy at village Kulia at the age of 1314 years. She was left by her husband after three months of her marriage. Thereafter, she started living with her parents. She then adopted the accused who is the son of her brother's sister in law about 26 years ago, with whom she had been living for about 89 years in Delhi.
16. PW 1/ prosecutrix in her complaint Ex. PW 1/A had alleged that the accused used to beat her. For some days before 14.06.2008, he had been beating her and molesting (chipakta tha) her. On 14.08.2008, night at about 2.00 am, he committed rape upon her and thereafter, left the house early in the morning. PW 1 in her statement recorded u/s 164 CrPC on 26.06.2008 Ex. PW 1/B, had stated that on 14.06.2008, accused beat her and thereafter, left the house. He did not commit rape upon her. PW1 in her testimony has stated that on 14.06.2008 at about 11.00 pm, accused came at her house and at about 2.00 am, he committed rape upon her. On 15.06.2008 at about 5.00 am, when the gate of her building opened, she went to the police and made the complaint Ex. PW 1/A. She was sent to AIIMS. She stated that she was taken to the Court by ASI Adesh Kumari for FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 15/28 getting her statement recorded before the Magistrate. When she came out from the room, she found SI Virender who in the morning had asked her to take back her complaint, which she did not agree. She has stated that she had given her true statement to the Magistrate which was duly recorded. She also stated that she had told SI Virender that she has given her true and correct statement to the Magistrate. PW 7 has stated that on 26.06.2008, he had recorded the statement of the prosecutrix Ex. PW 1/B, on an application moved by ASI Adesh Kumari and thereafter, given a certificate to its correctness Ex. PW 7/B. Perusal of the statement reveals that no such incident of rape was reported by the prosecutrix. She had stated that she was beaten by the accused. It is relevant to mention that PW 7 before recording her statement had ascertained her voluntariness and given a finding that she is free from threat, coercion, pressure etc. from any corner and is capable of making her statement.
17. It is also relevant to mention that the prosecutrix was sent for counseling on 26.06.2008 before Swanchetan, a society for mental health under the pattern of Justice V S Malinath former Chief Justice of Karnataka and Kerela. Dr. Rajat Mitra who was Director of the society had given a counselling report, which is reproduced as under: "Swanchetan Society for Mental Health was called by FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 16/28 ASI Aadesh Kumari, Mehrauli police station on June 26th 2008 for the counseling of Ms. Kanchan Bala Pradhan (FIR No. 305/08 ). The counseling and assessment was done by women counselor from Swanchetan, carried out to reduce the trauma which she might be facing after the assault. A report is being sent a the request of ASI Aadesh Kumari In the session the victim shared that her son recently had started living with another woman. According to her Kanchan Bala (the victim) and her son would have frequent arguments over this issue. As a result she felt ignored and insecure without her son being around. She said that she feared that he might separate from her even further and this pushed her to make such an allegations. She said that she believed that such an allegation might bring him back to her and restore their earlier relationship.
The counselors empathized with her and helped her explore her feelingness and look at the alternative way to deal with her feelings and work out the differences with her son. Kanchan Bala shared that this allegation was false. In the session she was helped to see that making such allegation can not solve the problem. She too understand and accepted the fact that she had done something seriously wrong and would not repeat it int he future. The counselors stroked her for taking responsibility for her actions.
This information was shared with the investigating officer."
18. Perusal of the aforesaid report would show that the accused had recently started living with another woman due to which prosecutrix and the accused had frequent arguments. She felt ignored, insecure and feared without her son being around. She feared that she might separate from her which pushed her to FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 17/28 make such an allegation in order to restore her earlier relationship. During counselling, she had revealed that such allegations are false. Although, the prosecutrix did not examine Dr. Rajat Mitra to prove his report but since this report is the part of the court record, Court can take judicial notice of it.
19. Perusal of file also reveals that she had made complaints against the accused on 02.06.2009 and 12.06.2009 regarding beating and attempt to rape but as per her complaint Ex. PW 1/A, prior to this incident the accused had tried to molest her and there was no attempt of rape upon her. In her testimony, she did not say anything about the prior incidents.
20. PW 1 has stated that she filed the complaint Ex. PW 1/D since her case was not properly investigated. She admitted that her first statement under section 164 CrPC was recorded on 26.06.2008 in which she had not levelled allegations of rape against the accused and only alleged of beating by the accused. She also admitted that she had given second statement under section 164 CrPC on 18.08.2009 in which she had levelled allegations of rape against the accused. That being so, how it can be said that police had not properly investigated the case. The prosecutrix in her testimony has stated that she had given true and correct statement before the Magistrate, though she was asked by SI Virender to take back the complaint. She has repeatedly stated that she had given the correct statement before FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 18/28 the Magistrate. Further, The certificate appended with the statement also shows that she had made the statement voluntarily before the Magistrate. Further, PW 10 has stated that she had investigated the case properly. The prosecutrix has stated that after the incident, they lived together for about 2 months. She also admitted that she wanted the accused to marry with some girl. Further, she did not lodge any report against SI Virender or the IO while she was allegedly being induced or pressurized. The objections for the first time were taken by the prosecutrix on 10.10.2008 i.e. after about one and half months, wherein she back tracked from the said statement Ex. PW 1/B. This delay itself casts doubt on the veracity of the prosecution case.
21. PW 1 has stated that her clothes got torn in the incident and she suffered injury on her ear and forehead. But her MLC does not show any sign of bruises on her breasts, abdomen and thighs. Her hymen was ruptured. Had there been any injury on her ear and forehead, it might have been reflected in the MLC Ex. PW 6/A. Further, it is most likely that when there has been some real resistance, local injury will be apparent and probably also marks of violence on the body and limbs.
22. Perusal of the file reveals that only the underwear of the prosecutrix was seized and no other clothes were seized. The question now arises what made the prosecutrix not give her torn FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 19/28 clothes to the police or why her torn clothes were not taken into possession.
23. It is to be noted that when the statement of the prosecutrix was recorded for the second time on 18.08.2009 before the Magistrate i.e. PW 12, she did not disclose that she had earlier given the statement u/s 164 CrPC. Further, no reason came in the testimony of PW 1 as to what made her give her first statement wherein she had stated that accused did not commit rape upon her. No plausible explanation came from the side of the prosecution or complainant in this regard. The accused version since beginning is that the prosecutrix wanted him to marry with a girl of her choice, which he refused which made her make complain before the police and when he agreed to marry with a girl of her choice, she made her statement u/s 164 CrPC that she was not raped by the accused but again when he married with a girl of his choice, she made the complaint, got her case reopened and again made statement u/s 164 CrPC that she was raped by the accused. The defence given by the accused appears to be probable. Further, his version get support from the testimony of DW 1 and DW 2, who are the father in law and maternal fatherinlaw of the accused. They have stated that when they came to know of the incident, they broke the engagement but after prosecutrix made the statement that accused did not commit rape upon her, they married their FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 20/28 daughter with the accused.
From the facts and circumstances, it emerges that the prosecutrix had become very possessive for the accused. She did not want to loose the accused or part with him that was why she wanted him to marry with a girl of her choice, which fact has also come in the report of the counselor.
24. Now coming to the FSL report Ex. PW 11/A colly. As per the report dated 25.01.2010, blood and semen were not detected on the black underwear of the prosecutrix, however the human semen was detected on the two micro slides i.e. vaginal smear slides. Vide report dated 05.04.2010, the blood was detected on the blood in gauze of the accused, however it had no reaction of the species of origin. DNA finger printing was done. As per the report dated 30.11.2010, no opinion was expressed due to non availability of DNA from the source of exhibits i.e. vaginal smear slides of the prosecutrix and blood in gauze of the accused so it cannot be conclusively held that human semen detected on the vaginal smear of the prosecutrix, was of the accused. The underwear of the prosecutrix was produced during her evidence, which had the seal of FSL. She on opening identified it to be her underwear as Ex. P1. As per her testimony, it is neither torn nor there is any spot on the same. She has stated that it was taken from her by the doctor in the morning of 15.06.2008 and it was worn by her when it was handed over to FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 21/28 the doctor. It is to be noted that blood in gauze of the accused was again taken on 26.04.2010 when his second MLC Ex. PW 9/A was prepared. Since the underwear of the prosecutrix was not sent for DNA finger printing so again on 18.12.2013 the underwear of the prosecutrix, blood in gauze of the accused which was taken in the year 2009, two vaginal smear slides of the prosecutrix and blood in gauze of the accused, which was taken in the year 2010 were sent for analysis. They were given exhibits 1, 2, 3a, 3b and 4. They were subjected to DNA isolation. As per the report dated 24.01.2014, DNA was isolated from the source of exhibit 1 and 2 however it could not be isolated from the source of 3a, 3b and 4. DNA profile was prepared and as per the report, DNA profiling performed on exhibit 1 i.e. underwear of the prosecutrix and exhibit 2 i.e. blood in gauze of the accused were sufficient to conclude that DNA profile from the source of exhibit 1 is similar with DNA profile from the source of exhibit 2 (blood in gauze).
25. It is relevant to mention that when DNA finger printing was done on 24.01.2014 vide report Ex. PW 13/A, it was observed that the exhibit 1 contains one black underwear with 05 cuttings already taken by biology division for biological examination, whitish stain was found on very small area. The question now arises why this stain had not appeared when it was subjected for examination for the first time. The FSL report dated 25.01.2010, FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 22/28 clearly reveals that blood and semen could not be detected on the underwear. It was analysed by the Biological division and sealed with the seal of NK FSL Delhi. The underwear was produced in the court bearing the seal of FSL on 23.01.2012 and there was a clear cut observation and categorical statement of the prosecutrix that it is neither torn nor there is any spot on it. The question further arises how this stain had appeared during second analysis as per the report Ex. PW 13/A and how the five cuttings on the underwear had appeared though as per the prosecutrix and during evidence, it was observed that there was no cutting on the underwear. The question further arises why the underwear of the prosecutrix was not sent in the year 2008 itself. That being the position, it would be unsafe to rely on the DNA report dated 24.01.2010 since the possibility of the tampering of the case property or petrifying of the samples, cannot be ruled out. Even otherwise, it has corroborative value. In the instant case, the statement of the prosecutrix is not above board and unworthy of credence since there are material improvements in her testimony. Further, the accused has been able to raise suspicion on the veracity of this witness as in her statement which was recorded u/s 164 CrPC she has categorically stated that accused did not commit rape but when he refused to marry, she again made complaint after about few months making the similar allegations reiterating the incident in FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 23/28 her subsequent statement recorded u/s 164 CrPC.
26. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the the sole testimony 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"
27. It was held in the case of Dev Kumar Juneja Vs. The State (Delhi Administration) 1996 JCC 638 that law on the question of variance between different statements of a witness at different stages is that small variations or omissions will not justify a finding that the witness is a lier and his testimony be discarded. However, vital omissions, merit consideration and if on vital FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 24/28 points it appears to the court that witness has tried to improve the case, such a witness will have to be discarded. The cases of Surajamal Vs. State, AIR 1979 SC 1408, Matadin and ors. Vs. State of UP, AIR 1979 SC 1234 and Namdeo Daulate etc. Vs. State of Maharashra, AIR 1977 SC 381 were also relied upon.
28. In the case of Ashok Narang Vs. State, 2012 (1) JCC, 482, it was held: "If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes two inconsistent statements in their evidence either at one stage or both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved.
As already noted above, learned Trial Judge has ignored the statements recorded by the first Investigating officer. The law has been settled by the Crl. Appeal No.932/2009 Page 68 of 70 by Apex Court in Ram Singh (supra) that the evidence tendered by defence witness cannot always be termed to be tainted one. The defence witness is entitled to equal term and equal respect as with of the prosecution. The issue of credibility and trustworthiness will also to be attributed to the FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 25/28 defence witness at par with that of the prosecution.
In the instant case, the conviction has been based on the sole testimony of prosecutrix. As has been held by Apex Court in Bhimapa Chandrappa Hosamani (supra) that the Supreme Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. 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."
29. In the case of Narender Kumar Vs. State of NCT Of Delhi AIR, 2012 SC 2281, it was observed:
23. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.
It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 26/28 have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However 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.
30. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it 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 FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 27/28 of the evidence brought on record"
31. In the light of what has been stated above, I am of the view that present case is not free from suspicion. It would be highly unsafe to base the conviction of the accused on the basis of the evidence and material available on record. I therefore, acquit the accused of the offence punishable under section 376 IPC. His bail bond is cancelled and his surety is discharged. Accused is directed to furnish bail bond in the sum of Rs.30,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
32. The case property be confiscated to the State after the expiry of period of the appeal or revision.
33. File be consigned to record room.
Announced in the open court today i.e. 26.02.2015 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 305/08 U/s. : 376 IPC PS : Mehrauli, New Delhi. Page No. 28/28