Delhi District Court
Karnataka vs . Mapilla P.P. Soopi Air 2004 Sc 83, It Was ... on 27 September, 2017
IN THE COURT OF SHRI SANJIV JAIN
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT (SOUTH EAST) SAKET COURTS: NEW DELHI
Unique Case ID No. 02406R0030642014
SC No. : 29/14 and 1319/16
FIR No. : 322/13
U/s. : 376/506/384 IPC
PS : C R Park
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Pawan Kumar
S/o Late Radhey Shyam Sharma
R/o 1975A, Jain Nagar,
Karala, Delhi110081. ...............Accused
Date of Institution : 12.02.2014
Judgment reserved for orders for : 27.09.2017
Date of pronouncement : 27.09.2017
J U D G M E N T
1. The quest in all criminal trials is to arrive at the truth and
therefore, the role of the Judge is to cull out the true facts from
the evidence led before him and ensure that guilty does not go
scotfree and innocent's life and liberty is not jeopardised.
2. This case vide FIR no. 322/13 was registered at the Police
Station C R Park on 03.12.2013 on the complaint of the
prosecutrix (name withheld to protect her identity). On the
completion of investigation, the chargesheet was filed against the
accused Pawan Kumar on 24.01.2014 for his having been
State v. Pawan Kumar
FIR No. 322/13
P.S C R Park Page No. 1/20
committed the offences punishable u/s 376/384/506 IPC.
Facts
3. The case of the prosecution is that on 03.12.2013, the prosecutrix came at the police station C R Park and gave her statement inter alia that she lives with her family comprising of her husband and three children. Her parents knew the parents of the accused Pawan Kumar. She had met the accused in Delhi. He and his family used to come in her house since 2005. In June, 2008, she had shifted at Greater Kailash EnclaveII with her family. The accused used to come there. In August, 2008, her husband had gone out of station. Her children had gone to school. Accused came to her and told her that he wanted to marry her. He asked her not to call him Bhaisaab. He thereafter made physical relation with her forcibly. For her reputation and honour, she did not tell it to anyone. The accused started saying her that if she would not continue relations with him, he would tell her husband and relatives about it. On that pretext, he made physical relations with her 45 times. In 2009, during her pregnancy, he forcibly made physical relation with her. He threatened her to defame in the society saying that he has prepared her nude video. He started blackmailing her. He extorted Rs.22 lacs from her in 2010. She transferred Rs 7 lacs from her account with ICICI Bank in his account. In October, 2010, accused got transferred Rs.1 lakh in his account from her account. She thereafter gave him Rs. 10 lacs in cash. He took the money on the pretext that he has to buy a property in Jain State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 2/20 Nagar. She alleged that from May 2009 to May 2010, a maid servant used to work in her house. During that period, he could not make physical relations with her. He used to ask her to make relations with him lest he would defame her in her relations and not return her money. He thereafter 23 times committed sexual intercourse with her forcibly. After 2010, he did not make any relation with her but he used to torture her on phone. She alleged that the accused had given her cheques to repay the loan which on presentation were dishonoured. Her case in this regard is pending in the court. She had made complaint against the accused earlier but she withdrew it since she did not want to take action against him. She alleged that on 03.12.2013, she with her husband had come in the court to attend the hearing of the case where accused quarreled with them and her husband called the police. She alleged that the accused made physical relations with her against her wishes forcibly and extorted money after blackmailing her.
4. On this statement, the case was registered. The prosecutrix was taken to AIIMS for her medical examination. The accused was interrogated and arrested. He was got medically examined at AIIMS on 04.12.2013 qua his potency. The statement of the prosecutrix u/s 164 CrPC was got recorded. The documents were collected from the prosecutrix regarding transfer of money in the account of the accused. The documents from ICICI Bank, G.KII were collected in respect of account of M/s Seagate Medical Systems. After completing the investigation, the charge sheet was filed.
State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 3/20
5. After complying with the requirements contemplated u/s 207 Cr.P.C. the case was committed to this Court.
Charge
6. After hearing arguments, vide order dated 14.03.2014, prima facie case was made out against the accused u/s 376/506/384 IPC. The charge was framed. The accused pleaded not guilty and claimed trial.
Prosecution Evidence
7. To substantiate its case, prosecution examined as many as fourteen witnesses. PW 1 HC Sube Singh was the Duty Officer. He proved the recording of FIR Ex. PW 1/A. PW2 Dr Nisha Malik had examined the prosecutrix vide MLC Ex. PW 2/A. She also recorded the history on the narration of the prosecutrix. PW3 ASI Gurdeep Raj recorded the DD Ex. PW 3/A on the call from PCR on 03.12.2013 regarding rape on the prosecutrix. PW4 Ms Neha Ld MM recorded the statement of the prosecutrix u/s 164 CrPC Ex.PW 4/C. PW5 ASI Vedvir had investigated the complaints of the prosecutrix dated 19.07.2012 and 20.08.2012 and concluded that the prosecutrix and the accused had monetary dispute as both had claimed to have given money/loan to each other which was not repaid. He gave his reports Ex. PW 5/C and Ex. PW 5/D on the complaints of the prosecutrix Ex. PW 5/A and Ex. PW 5/B. He stated that another complaint Ex. PW 5/E was filed by the complainant which was also filed. He also collected the CDR of their phone numbers. PW6 ASI Lokender Tyagi was present when the prosecutrix and State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 4/20 the accused came in the police station on 03.12.2013. He witnessed the arrest of the accused vide memo Ex. PW 6/A. PW7 Ct Anil Kumar had taken the accused for his medical examination. PW8 was the prosecutrix and the star witness of this case. I will discuss her testimony in detail at the time of appreciation of evidence. PW9 is the husband of the prosecutrix. I will discuss his testimony in detail at the time of appreciation of evidence. PW10 Ms Sushma was the counselor from Prayas. She proved the counseling report Ex. PW 10/B. PW11 Insp. Rajender Kumar had received the DD. PW12 Dr Deepak Prakash proved the MLC of the accused Ex. PW 12/A prepared by Dr. Rohit Kumar. He stated that the accused was capable of performing sexual intercourse under normal circumstances. PW13 SI Kala Joshi was the investigating officer of this case. She deposed on the lines of the investigation. She stated that during investigation, it was transpired that the accused, the prosecutrix and her company M/s Seagate Medical System had money transactions among themselves. They had family relations and their relations were cordial since 2005. She stated that the complainant had withdrawn her complaint Ex. PW 8/DA on 16.11.2013. PW14 Ms Rupa Roy brought the details of the account in the name of Seagate Medical System of the period from 13.02.2012 to 20.01.2015 Ex. PW 14/A. She stated that the account is dormant since 20.01.2015 and it was frozen by the orders of the Credit Department. She also brought the details of the account in the joint name of prosecutrix and her husband for State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 5/20 the period from 04.01.2011 to 16.01.2014 Ex. PW 14/B. She stated that the account was closed on 16.01.2014. Statement of the accused under section 313 CrPC
8. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded. He denied all the incriminating evidence against him. He however admitted that he knew the prosecutrix and her parents and they used to visit each other's house. He stated that whenever he went to the house of the prosecutrix, he went with his family. He never blackmailed her nor called her at night nor mentally or physically harassed her. He had given loan to her husband in 2008. Her husband had a joint account with the prosecutrix. He never took money from the prosecutrix nor gave her any cheque. She without his consent removed some signed cheques from his bag and presented for encashment. He never made physical relations with the prosecutrix nor interfered in her matrimonial life and her complaint is false. He admitted that he had met the prosecutrix in the court at Saket but he never quarreled with her and she made the false report with the police at the instance of her husband. He stated that they used to threaten him regularly to go as per their wish lest they would implicate him in a false case.
Defence Evidence
9. The accused did not examine any witness in his defence. Arguments and Contentions
10. I have heard the arguments advanced by Sh. Sanjay Suri Ld. Counsel for the accused and Sh. Mohd Iqrar, Ld. Addl.
State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 6/20 PP for the State.
11. Ld counsel for the accused vehemently argued that both prosecutrix and the accused were married and had families. They knew each other for a long time. They used to visit each other's house with their families. Ld counsel stated that there was inordinate delay in lodging the FIR. The first incident allegedly happened in August, 2008 but the FIR was lodged in 2013. She had made complaints against the accused earlier but she never alleged in the complaints that the accused had made physical relations with her forcibly and threatened her to defame in her relations. Ld counsel stated that the accused never prepared her video nor at any time made physical relations with the prosecutrix nor blackmailed her. Ld counsel stated that the prosecutrix withdrew all her complaints lodged earlier. Ld counsel stated that there was monetary dispute between the accused and her husband for which the cases u/s 138 of Negotiable Instruments Act are pending against each other. Ld counsel stated that the accused never took money from the prosecutrix rather he had given loan to the husband of the accused. Ld counsel stated that the prosecutrix had made call to the accused more than 50 times after the alleged first incident. He was present when the prosecutrix gave birth to the child. He was sent by the prosecutrix to settle a matter in which her husband was arrested. Ld counsel stated that the accused is the maternal cousin of the prosecutrix and he has been falsely implicated by the prosecutrix at the instance of her husband.
12. Ld Addl. PP per contra argued that the accused and State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 7/20 the prosecutrix had good relations. They used to visit each others house with their families. In August, 2008, when the prosecutrix was alone, he came in her house and forcibly committed sexual intercourse with her. She did not complain the incident to anyone to save her honour and reputation. The accused thereafter started harassing and blackmailing her. He extorted a huge amount from the prosecutrix on that pretext. He thereafter committed sexual intercourse with her number of times. Ld Addl. PP stated that the accused had given her cheques to repay the loan which got dishonoured. She then filed the complaint in the court. Ld Addl. PP stated that the prosecutrix had made complaints against the accused earlier regarding harassment. She did not make complaint regarding her sexual exploitation since she wanted to save her matrimonial life as the accused had threatened her to defame her in the society. When she was attending the case in the court at Saket, the accused again quarreled with her and her husband. Her husband then called the police and she thereafter told the entire incident to the police leading to the registration of the case. Ld Addl. PP stated that the prosecutrix is consistent and cogent in her testimony which is sufficient to base conviction of the accused. Findings
13. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and gone through the statements of the witnesses and the documents on record.
14. PW8/prosecutrix has deposed that she knew the accused from before. He used to visit her house since 2005. She State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 8/20 also used to visit his house at Karol Bagh. In June, 2008, she shifted in a house at Greater Kailash EnclaveII where she used to stay with his family for one or two days. In August, 2008, her husband had gone out of station. Her children had gone to their school. She was alone. At about 9.30/10.00 a.m, he came in her house. She served him water and went to her room for her work. The accused came there following her. He bolted the room from inside. Although she asked him bhaisaab ye kya kar rahe ho but he asked her not to say him bhaisaab and told her that he wants to marry her. He started manhandling her. He threw her on the bed and removed the pin of her saree. He also started removing his clothes. She again tried to open the door but he manhandled her and pushed her on the bed. He caught her tightly and established physical relation with her without her consent. While leaving, he threatened her that he has seen til mark on her body and if she disclosed it to her husband, he would tell the til mark to him, spoil her matrimonial life and defame her in the society. Due to fear she did not tell it to anyone. She stated that after the incident, accused established physical relations with her 45 times giving her threats. In 2009, she was pregnant but despite that he established physical relation with her forcibly giving her threats. He used to threaten her that he has her obscene video. He used to call her on phone. She stated that she had employed a maid. The accused used to ask her to send the maid out of the house so that he could make physical relations with her. He started blackmailing her. She went to his house and told his family that the accused was blackmailing her but no one helped State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 9/20 her. She also requested the accused not to call her late night and harass her mentally and physically but all went in vain. He started forcing her to give him money for the plot at Jain Nagar. In 2010, she gave him Rs.12 lacs because of the threats extended to her. She transferred 912 lacs from her account with ICICI Bank in the account of the accused. She gave the remaining sum to the accused in cash. She stated that they had sold the house at GK enclave for Rs.2.25 crores. The accused initially had assured her that he would return the amount in 23 months. He gave her seven cheques of Rs.25 lacs which got dishonoured. She stated that after her delivery, they shifted in a house at C R Park. The accused started visiting there. He also established physical relations with her 23 times there after giving her threats. She filed two complaints u/s 138 of NI Act against the accused but he continued harassing her mentally and physically so she filed two complaints in the police station against the accused however she did not mention about the physical relations in the complaints to save her matrimonial life. She stated that after the complaint, the accused started harassing her mentally and physically. He used to call her from different numbers and ask her to withdraw the complaints. He used to call her at odd hours. She stated that when her husband called the accused, he told him the entire incident. He then made enquiry from her and she told him the entire incident. Tension started in her matrimonial life. On 14.11.2013, she gave the complaint Ex. PW 8/A but due to fear of being defamed in the society, she withdrew the complaint on 16.11.2013. On 17.11.2013, she requested the police State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 10/20 to ask the accused not harass her but the accused did not stop. She stated that on 03.12.2013, she with her husband had gone to Saket Court to attend her court case where the accused quarreled with them. Her husband then called the police. She went to the police station and gave her statement Ex. PW 8/B. She stated that she had told the doctor about the incident during her medical examination vide MLC Ex. PW 2/A. She also proved her statement u/s 164 CrPC Ex. PW 4/C. She stated that she had a joint account with her husband in ICICI Bank. In her crossexamination, she stated that she was married in 1989. Her husband has a private limited company in the name of Seagate Medical System. She was the Director in that company. She stated that they never had business dealings with the accused nor she had taken money from him. There was no money transaction between them. They as a family used to travel with the family of the accused to various place including Khatu Shyamji and stay there. She stated that the returns of the company used to be filed under her signatures. She does not know if the company had taken loan from 34 companies. She admitted that in her complaints Ex. PW 8/PA, Ex. PW 8/A and mark PW 8/PB, she did not allege rape by the accused. She admitted that in the case filed by her u/s 138 of Negotiable Instruments Act, she did not mention about the rape committed by the accused. She admitted that she might have called the accused more than 50 times for the period from 20082010. She also admitted that the accused has also filed a case u/s 138 of Negotiable Instruments Act against her husband. She stated that State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 11/20 she does not know if on 31.12.2018, 01.01.2009 and 09.01.2009 Rs.49,000/ each were transferred in the account of Seagate Medical System from the account of the accused. She admitted that her husband was arrested by the police of Andhra Pradesh and the accused had gone there to settle the matter. She stated that at that time, they had family relations with the accused. She admitted that the accused had come with his family when she was aborted but she does not know if he had signed the papers as guardian. She admitted that the accused had gone with them in the hospital at the time of delivery of her child on 18.04.2009. She admitted that she had taken policy at the address of the office of the accused. She admitted that in 2011, she constructed a house and a temple in her native place and she had gone to a builder at Chirawa with the accused. She admitted that in May, 2011, she had purchased a plot from Dheeraj Tyagi and when the premium was paid, the accused was with her. She admitted that her husband and accused used to talk to each other after the case but she denied that the accused never committed rape upon her or that because of financial differences, she falsely implicated the accused.
15. PW9/husband of the prosecutrix has stated that accused is his brotherinlaw ( brother of his wife). He used to visit his house. About 23 months before the case, he received an email of his wife at Mumbai alongwith a reply of the accused in the case instituted by her u/s 138 of Negotiable Instruments Act where the accused alleged that he has raped his wife and had illicit relations with her. She called his wife on phone. She then State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 12/20 narrated the whole story. He came to Delhi. She with his wife went to the court to attend the case. In that court, he enquired about the incident from the accused. It resulted into fighting. He hit his wife and tried to push him. His lawyer then called the police at 100 number and the police took both of them to the police station. The police recorded the statement of his wife and registered the case.
In his crossexamination, he stated that Seagate Medical System is a partnership firm. He and his wife used to manage the affairs of the firm. He had taken loan on his properties and mortgaged the properties. He denied that the accused had gone to Hyderabad to settle his cases and had paid Rs.34 lacs there. He admitted that he had transferred Rs.7 lacs in the account of the accused from his joint account. He admitted that he and his wife were using the mobile phones. He stated that he used to call the accused occasionally. He admitted that there was money dealing between the accused and his wife but he does not know if the accused had transferred money from his clients in the account of Seagate Medical System. He stated that he had knowledge about the money transactions between his wife and the accused. He stated that he did not hand over the email sent by his wife regarding the reply sent by the accused in respect of the case u/s 138 Negotiable Instruments Act. He denied that he and his wife hatched a criminal conspiracy to falsely implicate the accused and absolve themselves from the liability towards the accused.
16. On an analysis of the testimonies of the State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 13/20 prosecutrix/PW8 and her husband/PW9 and the documents placed on record, I find that the prosecutrix was related to the accused. They used to visit each other's house since 2005. They had family relations. They also had monetary transactions.
17. PW8/prosecutrix has stated that in August, 2008, PW9 had gone out of station, her children had gone to the school and she was alone. At about 9.30/10.00 a.m, accused came in her house and bolted the room from inside. When she asked him what he was doing, he manhandled her, threw her on the bed, caught her tightly and committed sexual intercourse with her. He also threatened her not to disclose it to her husband lest he would spoil her matrimonial life and defame her. Due to fear, she did not tell to anyone. He thereafter committed sexual intercourse with her 45 times giving her threats. Even during her pregnancy, he committed sexual intercourse with her giving her threats. He used to threaten her that he has her obscene videos. He used to call her on phone. He also extorted money from her. Even when she shifted from Greater Kailash Enclave to C R Park, he visited her house and committed sexual intercourse with her 23 times giving her threats. She has stated that the accused had given her seven cheques to repay the loan amount which on presentation were dishonoured for which she filed the complaints in the court which are pending trial.
18. Her testimony shows that even after the accused allegedly committed sexual intercourse with her in August, 2008, she with her family traveled with the accused and his family to various places. She has admitted that she had called State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 14/20 the accused more than 50 times during the period from 2008 to 2010 and the accused has also filed a case u/s 138 of Negotiable Instruments Act against her husband. She did not answer if on 31.12.2008, 01.01.2009 and 09.01.2009, Rs. 49,000/ each were transferred from the account of the accused in the account of Seagate Medical System in which she was the Director. Her testimony reveals that even after the above incidents, she had sent the accused to Andhra Pradesh to settle the matter in which her husband was arrested. Even when her abortion took place, the accused with her family was present in the hospital and had signed the papers as guardian. Her testimony reveals that the accused had gone with them in the hospital when she gave birth to her child on 18.07.2009 i.e after the alleged incident. Even in May, 2011, when she struck a deal of a plot, the accused was with her and she had gone to the builder at Chirawa with the accused. Testimony of PW9 shows that the prosecutrix never complained to him about her sexual exploitation by the accused. He has stated that about 23 months before the case, he had received an email of PW8 at Bombay alongwith the reply of the accused in the case instituted by her u/s 138 Negotiable Instruments Act where he had alleged that he had raped the prosecutrix and had illicit relations with her. It is pertinent to mention that no such email was placed on record by the prosecutrix or by the prosecution. Question arises why PW9 remained silent and did not report the matter immediately to the police.
19. PW8 has stated that when the accused started State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 15/20 blackmailing her after extending threats, she went to the house of the accused and told his family about it but none from his family helped her. She had also requested the accused not to call her at late night and asked his family members to make him understand but all went in vain. Surprisingly, she did not make any complaint in this regard to the police or to her husband. She has stated that the accused had threatened her that he has made her obscene video but during investigation no such video was recovered from the possession or at the instance of the accused. Her testimony reveals that she had made two complaints against the accused without mentioning that she was raped by the accused or she was being sexually harassed by the accused. It is not understood why she withdrew those complaints.
20. I have gone through the complaints Ex. PW 8/A dated 14.11.2013, mark PW 8/PA dated 20.08.2012, mark PW 8/PB dated 19.07.2012, the report of ASI Vedvir Singh dated 18.09.2012, complaint Ex. PW 5/A dated 19.07.2012, report Ex. PW 5/D dated 18.08.2012, Ex. PW 5/B dated 20.08.2012, complaint Ex. PW 5/E and the counseling report Ex. PW 10/A as well as the withdrawal letters given by the prosecutrix dated 16.11.2013 and 14.11.2013 Ex. PW 8/DA and Ex. PW 8/DB. On perusal, I find that the prosecutrix had withdrawn the complaint Ex. PW 8/A immediately after two days vide letters Ex. PW 8/DA and Ex. PW 8/DB. In the complaints mark PW 8/PA and mark PW 8/PB, she never alleged that she was sexually assaulted by the accused. Her complaint mark PW 8/PB reveals that the accused had taken loan from her to purchase a house giving her State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 16/20 assurance to repay the loan as soon as possible. He issued her cheques which on presentation got dishonoured. When she asked the accused to repay the amount, he became furious and extended threats. So how can it be said that the accused extorted the money from the prosecutrix after blackmailing her. Report of ASI Vedvir Ex. PW 5/C reveals that there was monetary dispute between the complainant and the accused. They had old family relations and no case is made out against the accused, and the complaint was made only to recover the money from the accused. According to the counselor, the prosecutrix was not consistent in her statements.
21. The first incident allegedly happened in August, 2008 but the FIR was lodged on 03.12.2013 that too when both the parties had come in the Court at Saket to attend the hearing of the case u/s 138 of Negotiable Instruments Act where the quarrel had taken place. Although the prosecutrix has stated that she did not make complaint since she wanted to save her matrimonial life and the accused had threatened her to defame her in the society but perusal of the material available on record reveals that she had made complaints against the accused earlier qua the threats and had also filed the criminal complaint against the accused u/s 138 of Negotiable Instruments Act. Her testimony reveals that she did not break the relations from the accused rather after that incident, she had gone with the accused and taken his help in many matters. In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 17/20 evidence contributes to the doubt in the prosecution case.
22. After appreciating the facts in totality, in the given circumstances, I find that there was monetary dispute between the accused, prosecutrix and her husband. Their relations became sour due to the litigations between them which made the prosecutrix lodge the complaint against the accused resulting into registration of the case. Their relations before the complaints were very cordial. Even after August 2008, they used to visit each other's house and move to the places and had financial dealings. Her testimony cannot be said to be of sterling quality to base the conviction of the accused and the accused deserves the benefit.
23. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held 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.
24. 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 State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 18/20 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 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".
25. 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 State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 19/20 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
26. In the light of what has been stated above, I am of the view that 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 Pawan Kumar of the offences punishable under section 376/506/384 IPC giving him benefit of doubt. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 25,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
Announced in the open court ( Sanjiv Jain) on 27.09.2017. ASJ( Spl., FTC) SouthEast: New Delhi. State v. Pawan Kumar FIR No. 322/13 P.S C R Park Page No. 20/20