Delhi District Court
State vs Accused on 8 January, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA
COURTS, SHAHDARA, DELHI
Unique Case I.D. No.02402R0449462006
SC NO. 18/13 Date of Institution :07.08.2006
FIR No. 251/06 Date of Argument :08.01.2013
PS Mansarovar Park Date of Order :08.01.2013
U/S 451/354 IPC
State Versus Accused
Suresh
S/o Sh. Chhedi
R/o 105, Gali No.11,
New Modern Shahdara,
Delhi.
JUDGMENT
The facts in brief of the prosecution case are that on 21.06.2006 at about 4 p.m. accused Suresh trespassed into the house --------------------- Y
----------------------- of complainant X and committed rape on her without her consent and against her will. Matter was reported to the police. FIR No.251/06 at PS M.S. Park for the offences punishable u/s 451/354 IPC was recorded. After completion of investigation police filed a charge sheet before the Ld. Metropolitan Magistrate for his trial for the SC No.18/13 State vs. Suresh Page 1 of 28 offences punishable under section 451/354 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused and after framing of charge against the accused for the offence punishable u/s 451/354 IPC, recorded statement of prosecutrix as PW2. The prosecutrix deposed before Ld. M.M. that accused committed sex with her without her consent. Ld. Metropolitan Magistrate opined that an offence punishable under section 376 IPC was also made out which is exclusively triable by the court of sessions. Therefore, Ld. M.M. committed this case to the court of sessions and it was assigned to Ms. Nisha Saxena Ld. Additional Sessions Judge for trial.
3. Vide her order dated 22.11.2010, Ld. ASJ opined that there was a prima facie case against the accused for framing of charge against him for the offences punishable u/s 451/376 IPC. Therefore,charge against the accused for the offences punishable u/s 451/376 IPC was framed and read over to him in vernacular language. Accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Prosecutrix X as PW1; Smt. Reeta, SC No.18/13 State vs. Suresh Page 2 of 28 neighbour as PW2; Sh. Nagender Prajapati as PW3; SI (Retired) Pyare Lal as PW4; SI Dhanvir Singh (Retired) as PW5; Dr. Anshuja Singla, Sr. Research Associate, GTB Hospital as PW6; and Ms. Archana Sinha, Registrar, NGT, Delhi as PW7.
5. After closing of prosecution evidence statement of accused was recorded u/s 313 Cr. P.C. All the material and incriminating evidence was put to him. Accused denied the correctness of prosecution evidence and pleaded that he did not commit any offence and he was falsely implicated due to village rivalry. Accused opted not to lead any evidence in his defence.
6. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
7. After closing of evidence, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused.
8. On perusal of the file, scrutinizing and evaluating the evidence on record and on considering the SC No.18/13 State vs. Suresh Page 3 of 28 arguments, I have formed my opinion which are discussed here in below in this judgment.
9. It has been argued by Ld. Defence Counsel that there are material contradiction in the testimonies of material witnesses. Therefore, the accused should get benefit of doubt.
10. It has also been argued on behalf of the defence counsel that although corroboration of the allegation of rape is not essential yet it desirable.
11. It has been further argued by Defence Counsel that conviction is not sustainable in cases where the allegation of rape has not been corroborated by medical evidence.
12. It has been further argued by Defence counsel that prosecution case has not been supported by any public person. Therefore the truthfulness of the prosecution case is doubtful.
13. It has been further argued by the Defence Counsel that accused has succeeded in creating doubt in the prosecution case and therefore he is entitled for SC No.18/13 State vs. Suresh Page 4 of 28 getting benefit of doubt.
14. In order to prove its case for commission of offence of rape by accused, prosecution has to prove that accused committed sexual intercourse with prosecutrix X against her will. Let us examine the prosecution evidence on his aspect.
15. On examination and analyzing of prosecution evidence, I find contradictions on the following points:
Commission of Sexual Intercourse with Prosecutrix by Accused.
16. There are material contradictions on this point. In her initial statement Ex.PW1/A made to the Investigating Officer, she stated that she had been residing at the place of occurrence alongwith her two children aged 4 years and 3 years. In her adjoining house, there is a house of Ram Asre and his brother in law (sala) Suresh s/o Chheddi r/o Village Kurmol, PS Parsheka District Khushi Nagar, U.P., was also residing with him. On 21.06.2006 at about 4 p.m., she was taking rest in her room as she was not feeling well. Suresh came inside her room after opening the door and started fondling with her body and started inserting his hand inside her sari. She raised alarm. Her landlady Reeta SC No.18/13 State vs. Suresh Page 5 of 28 w/o Mohan arrived there. Accused jumped over the wall and went towards the house of his brother in law. He did not commit any wrong act with her. She did not want her medical examination. She prayed for taking legal action against Suresh for trespassing into her house and fondling with her body.
17. In the statement u/s 164 of the Code of Criminal Procedure, here in after referred to as the Code, she stated that on 21.06.2006 one Ram Asre threatened her to kill her husband. Ram Asre is brother in law of Suresh. On the same day Suresh caught hold her mouth by his hand and also caught hold his breast that was still paining and on her shouting her landlady Reeta came there. He ran away and then she reported the matter to the police. Then the police got his thumb impression on some papers and told her that her case had been registered.
18. In the statement before the Ld. M.M., recorded on 25.08.2010, she deposed that about 4 years ago she was residing at the house of Deena Nath, Shahdara. She was having two children. Accused present in the court was his neighbour and brother in law (sala) of Ram Asre who was living in the neighbourhood. There was a common wall between her tenanted premises and house of Ram Asre SC No.18/13 State vs. Suresh Page 6 of 28 where accused was staying. The incident occurred at 4 p.m. She was sleeping inside the room after almost closing the door. She was ill. Accused present in the court entered in the room after opening the door where she was sleeping. The accused came near her and caught hold of her cheeks and starting pressing her breast and he committed sex (galat kaam) with her without her consent. When she tried to raise alarm, he pointed a knife on her neck and threatened that he would kill her and her husband would not be able to do anything. When again he tried to raise alarm accused put his hands on her mouth. Then her landlady Reeta came upstairs. The accused on seeing Reeta fled away from the spot. Reeta made a call on 100 number. Police came there. She stated the facts to the police and police asked her that she should leave, as her work was completed. Police took thumb impression on some blank papers. She identified the accused Suresh in the court.
19. In the statement recorded on 17.08.2011, she stated that about five years ago, she was residing at B-106, New Modern Shahdara, Delhi. At about 4 p.m., she was not well and taking rest in her room. Accused Suresh came inside her room. He removed her clothes and his clothes and then committed sexual intercourse with her SC No.18/13 State vs. Suresh Page 7 of 28 forcibly against her consent. She raised alarm. On her alarm, her landlady came there but accused fled away after climbing over the wall. Police came there and recorded her statement Ex.PW1/A which was thumb impressed by her at point A. She had shown the spot to I.O. and narrated the incident of forcibly intercourse with her by the accused. The accused ruined her life.
These statements recorded on different date(s) have different versions of the statement of prosecutrix. I also find contradictions in between the statement of prosecutrix and in statement of other witnesses on following points:
Presence of Kids
20. In the statement Ex.PW1/A, she stated that she was having two kids. Ex.PW1/A is silent on the point whether the kids were inside the room where alleged occurrence had taken place or they were outside the room. In cross examination recorded on 18.07.2011 prosecutrix stated that her kids were playing in nearby locality at the time of incident. They returned at about 5 p.m. Subsequently, she changed her version and stated that her kids were playing outside the room on the same floor. Her kids had also started crying after the incident. PW2 Landlady stated in cross examination that a child of SC No.18/13 State vs. Suresh Page 8 of 28 Nagender i.e. husband of prosecutrix who was residing on the third floor of the house had broken the mug. She thought that Nagender was beating his child and that was why X was crying. She went upstairs and knocked the door and saw that child and X were crying. In cross examination she stated that children of X were also in the room. Thus, as per testimony of prosecutrix, children were outside the room at the time of alleged occurrence but as per statement of PW2 children were inside the room.
Position of the door of the room
21. Prosecutrix stated that room was not bolted and it was almost closed. Whereas PW2 landlady deposed that door was bolted from inside. She had knocked the door and she found that X and children were inside the room.
Position of clothes of Accused
22. As per testimony of PW1, accused committed sexual intercourse forcibly with her. She raised alarm. Landlady came there but accused fled away after climbing of the wall. Conversely, PW2 landlady deposed that she knocked the door and called out, "Nagender kyun maar rahe ho". The child and X were crying. The door was bolted from inside. Children of X were also inside the room. She saw that accused present in the court came out SC No.18/13 State vs. Suresh Page 9 of 28 of the door wearing a long barmuda and ran away after saying, "maine kuchh nahin kiya" (I committed no wrong). Prosecutrix in her cross examination deposed that accused had fled away in the same position (naked) after taking his clothes. In contradiction to her statement landlady PW2 deposed that accused was wearing kacha, baniyan and barmuda. Her statement is silent on the point that he was fleeing alongwith his clothes.
Gathering of Public Persons
23. Prosecutrix, on this aspect deposed that many persons had collected on the spot after hearing her alarm, Deena Nath Gupta, her kids and Rita and other persons gathered their. PW2 deposed that after hearing the noise, none except her went upstairs of the third floor of the house. No persons of the neighbourhood went upstairs.
Duration of Commission of offence
24. Prosecutrix in her cross examination stated that she raised alarm after the occurrence had taken place. Around an hour was consumed in completion of full act by the accused. PW2 on this aspect deposed that at about 4 p.m. she had gone upstairs after hearing hue and cry. Thus, according to prosecutrix she raised hue and cry after completion of occurrence after about an hour whereas the SC No.18/13 State vs. Suresh Page 10 of 28 PW2 deposed that she heard hue and cry at about 4 p.m. Use of Knife
25. Statement Ex.PW1/A recorded by I.O., statement of prosecutrix recorded by Ld. M.M. u/s 164 of the Code and statement recorded during the trial of this case are silent about use of knife but in the statement recorded on 25.08.2010 by Ld. M.M. prosecutrix disclosed the use of knife by stating that when she tried to raise alarm, accused pointed a knife on her neck and threatened that he would kill her and her husband would not be able to do anything. Thus, statement of prosecutrix is self contrary on this aspect. None of the other witness deposed anything with regard to use of knife. There was no recovery of knife.
Presence of husband after the occurrence and his visit to Police Station.
26. Prosecutrix deposed that she had gone to P.S. alone at 6 p.m. and remained there for half an hour. Her husband had come to the residence from the factory. Thereafter, he had gone to P.S. and he met her in the P.S. In quite contradiction husband of prosecutrix PW3 deposed that at the time of incident he and his wife were having mobile phone. He arrived at the house within five minutes of the occurrence on receiving a telephonic call at about SC No.18/13 State vs. Suresh Page 11 of 28 4:15 p.m. She and his wife had gone to P.S. Thus, according to prosecutrix she alone went to P.S. at about 6 p.m. but according to her husband, he and prosecutrix went to P.S. PW4, in quiet contradiction, stated that not only prosecutrix but her husband and landlady visited the P.S. on 21.06.2006. Statement of PW2 landlady is silent about her visit to P.S. Visible Injuries on the body of Prosecutrix
27. Prosecutrix on this aspect stated in her cross examination that she sustained injuries near her elbow. Statement of landlady PW2 is silent on the point of injuries sustained by prosecutrix. Same is the position of statement of husband of prosecutrix PW3. PW4 SI Pyare Lal deposed in his cross examination that he had told the complainant as well as her husband to get the medical examination of the complainant done but he complainant had refused for the same by saying that she did not want to get herself medically examined and she disclosed that, "mere saath koi galat kaam nahin hua hai" (nothing wrong act was committed with her). He also stated that when the complainant came at the PS on 21.06.2006 alongwith her husband and landlady, the complainant was not having any apparent bodily injury on her person.
SC No.18/13 State vs. Suresh Page 12 of 28Information to the Police
28. PW2 landlady deposed that elder brother of her husband (jeth) had called the police. Prosecution deposed that landlady Reeta made a call on 100 number to police. Statement of prosecutrix and her husband is silent on the point as to who informed the police about the occurrence.
29. Ld. Additional Public Prosecutor submitted that the minor contradictions are liable to be ignored. She relied on a decision dated 13.07.2012 in Criminal Appeal No. 01/12, passed by Delhi High Court in State v. Jai Hind, wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or SC No.18/13 State vs. Suresh Page 13 of 28 insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
30. On perusal of this ruling, I find that facts of present case and that case are quite different. In that case, testimony of minor witness/prosecutrix was under
consideration. Similar is not position of the present case as the prosecutrix is a lady having two children who changed her testimony at different stages and has opted not to under go internal medical examination. There are material contradictions in the testimony of prosecutrix. In my view the ruling referred to here in above will not give any benefit to the prosecution.
31. On considering the arguments of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on considering the prosecution evidence on record, I come to the conclusion that prosecution has failed to prove SC No.18/13 State vs. Suresh Page 14 of 28 its case against accused beyond any reasonable suspicion and shadow of doubt. The reasons which support my conclusion are firstly that there are material contradictions in the testimonies of prosecution witnesses which has demolished the prosecution case.
32. My decision finds support by a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
33. In a case Labh Singh v. State of M.P., IX-1986(3) Crimes 176, the accused was acquitted for the offence SC No.18/13 State vs. Suresh Page 15 of 28 punishable u/s 376 IPC on the ground that there were material contradictions in the prosecution case which were causing doubt on the prosecution story.
34. Secondly, in view of inherent contradictions on material points and plea of enmity between the parties on village rivalry it was necessary for the prosecution to corroborate the testimony of prosecutrix but it failed.
35. My decision finds support by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-
(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in SC No.18/13 State vs. Suresh Page 16 of 28 consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-
importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
36. My decision also finds support by a case State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, wherein the Apex Court on this aspect observed that:
"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and SC No.18/13 State vs. Suresh Page 17 of 28 her evidence must receive the same weight as it attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Sec.114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as it reflected in the following passage:
"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of SC No.18/13 State vs. Suresh Page 18 of 28 a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case is would be safe to act on her testimony if there is independent evidence lending assurance to her accusation." [Emphasis supplied]
37. My decision also finds support by a case Rameshwar v. The State of Rajasthan, AIR (39) 1952 SC 54, wherein the Apex Court held that:
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
[Emphasis supplied]
38. My decision also finds support by a case Madho Ram and another v. The State of U.P., AIR 1973 SC 469, wherein it was held by Apex Court that:
"It has been held that the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, SC No.18/13 State vs. Suresh Page 19 of 28 however, it has been emphasised that courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the court is of the opinion that it is not safe to dispense with that requirement, it has also been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged."
[Emphasis supplied]
39. My decision also finds support by a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031, wherein the Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
40. My decision also finds support by a case Balia SC No.18/13 State vs. Suresh Page 20 of 28 alias Balaram Behera and another v. State of Orissa, 1994 CRI. L.J. 1907, it was held by Orissa High Court that:
"It is well settled that the conviction can be maintained even on the sole testimony of the prosecutrix if believed to be true being wholly reliable and in such a case corroboration is not sought for. Corroboration becomes necessary when such evidence is neither wholly reliable nor wholly unreliable. It is in such case, "the court has to circumspect and (sic) look for corroboration in material particulars by reliable testimony, direct or circumstantial." (refer decision AIR 1957 SC 614: (1957 Cri LJ 1000), Vadivelu Thevar v. State of Madras).***"
[Emphasis supplied]
41. My decision also finds support by a case Ramchit Rajbhar v. The State of West Bengal, 1992 CRI.L.J. 372, wherein it was held by Kolkata High Court that where previous enmity is alleged, the Court has to scan evidence with great circumspection.
42. My decision further finds support by a case Ramcharan v. The State of M.P., IX-1986(3) Crimes 165, wherein the Madhya Pradesh High Court observed that:
"In a rape case, the oral testimony of the prosecutrix particularly when she is a married and grown up woman must be scrutinized with abundant caution and care to ensure that it is not concocted or embellished to any extent.*** Another circumstance, to discredit Mst. Phullibai's oral testimony, is the negative nature of medical evidence. The prosecutrix has stated that she was felled to the ground by the appellant-accused who had also given a tooth bite on her right cheek, but there are no external SC No.18/13 State vs. Suresh Page 21 of 28 injuries on the person of the prosecutrix as is amply clear from P.W.8 Dr. Phuspa's evidence. Therefore, the prosecution story regarding the alleged rape is not free from doubt. As such, the appellant-accused deserved to be acquitted of the offence in question by giving him benefit of doubt.***"
[Emphasis supplied]
43. The third reason of my decision is that I find that arguments of Ld. Defence Counsel is convincing that the refusal of the prosecutrix to undergo internal medical examination has further created suspicion and reasonable doubt in the genuineness of the prosecution case. Medical examination of prosecutrix conducted on 15.09.2008 vide MLC Ex.PW6/A i.e. after about 3 months will not provide any benefit to the prosecution.
44. My decision finds support by a case Hari and another v. State of Madhya Pradesh, IX-1988(3), Crimes 63, wherein Madhya Pradesh High Court held that:
"16. Injury on the person of the victims, especially on private parts, and her complaint to her parents, has a corroborative value. Presence of blood and seminal stains on clothes, meeting of hair are such piece of evidence which warrant credence.*** In the instant case the evidence of victim suffer from such infirmities and the probabilities-factor rendered their testimony of credence.
24. Prosecution has come out with a story, which is highly improbable.***"
45. My decision also finds support by a case Sanya SC No.18/13 State vs. Suresh Page 22 of 28 alias Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784, wherein it was observed by Orissa High Court that:
"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no independent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical evidence is also absent with regard to the opinion as to the fact of rape. For the reasons above the conviction is liable to be set aside."
[Emphasis supplied]
46. My decision also finds support by a case Om Parkash v. State of Haryana, 1999 CRI. L.J. 94, the P&H High Court set aside the conviction and one of the ground for setting aside of conviction was that the statement of prosecutrix was not corroborated by the medical evidence.
47. My decision also finds support by a case Chidda Ram v. State, VIII-1992(2) Crimes 1142, it was held by Delhi High Court that:
SC No.18/13 State vs. Suresh Page 23 of 28"In the absence of medical report of vaginal and cervical swabs it cannot be said that the petitioner committed sexual intercourse with the prosecutrix on the night of 28th May, 1975. Even otherwise the story given by the prosecutrix after being handed over by the police to her mother does not inspire confidence nor any credence can be attached to the same. Her version vary from stage to stage and from point to point. Therefore, no much reliance can be placed on the testimony of the prosecutrix particularly when there is no corroboration for the same."
48. My decision further finds support by a case Lachhman and another v. State, 1973 CRI. L.J. 1658, wherein the Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged o have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused it would be most dangerous to base a conviction on her uncorroborated testimony alone." [Emphasis supplied] SC No.18/13 State vs. Suresh Page 24 of 28
49. The fourth reason of my decision is that as the accused has succeeded in creating doubt in prosecution case so he is entitled to get benefit of doubt.
50. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
51. The fifth reason of my decision is that this court finds it difficult to believe testimony of prosecutrix and prosecution witnesses.
52. My decision finds support by a case Lalliram & Anr. v. State of M.P., (SC) 2008 [4] JCC 2813, wherein it was held by Apex Court that:
"As rightly contended by learned counsel for the appellants a decision has to be considered in the background of the actual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar's case (supra) it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on higher pedestal then the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value it may SC No.18/13 State vs. Suresh Page 25 of 28 search for evidence direct or circumstantial."
[Emphasis supplied]
53. The sixth reason of my decision is that where two views are possible, accused is entitled to get benefit of doubt.
54. My decision finds support by a case Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
55. Lastly, it is one of the basic principles of criminal jurisprudence that, let the hundred accused may go scot- free without punishment but one innocent person should not be punished. This principle is fully applicable in the SC No.18/13 State vs. Suresh Page 26 of 28 present case as the prosecution has failed to prove its case against the accused beyond any reasonable suspicion or shadow of doubt. It would not be just and fair, rather it would be hazardous, to convict the accused on the basis of inconsistent, contradictory and unreliable prosecution evidence.
56. In view of the above reasons and discussion, it is held that prosecution has miserably failed to prove his case against the accused for commission of rape by accused.
57. Let us examine whether prosecution could prove that accused trespassed into the house of prosecutrix or he indulged in fondling with the body of prosecutrix and thereby outraged her modesty. In view of the glaring contradictions highlighted here in above in this judgment, coupled with the principles of law laid down in above mentioned cases and discussed here in above, I am of the view that prosecution could not prove its case beyond reasonable suspicion and reasonable doubt that accused either trespassed into the house of prosecutrix or outraged her modesty. In my view it would not be just and proper to convict the accused on the basis of self contradictory, inconsistent, unreliable and untrustworthy testimonies of the prosecution witnesses.
SC No.18/13 State vs. Suresh Page 27 of 28CONCLUSION
58. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that accused Suresh either committed rape on the prosecutrix or outraged her modesty after tress-passing into her house. Consequently, by giving benefit of doubt to the accused, he is acquitted for the offences punishable u/s 451/376 IPC.
59. However, accused is directed to furnish his personal bond for a sum of Rs.20,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
60. After furnishing of personal bond/surety bond, file be consigned to record room.
Announced in the Open Court Dated:08.01.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (Special Fast Track Court) Karkardooma Courts, Delhi SC No.18/13 State vs. Suresh Page 28 of 28