Delhi District Court
State vs . Pushpender Kumar, on 18 May, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.10/15.
Unique Case ID No. 02405R0259542014.
State Vs. Pushpender Kumar,
S/o Sh. Ram Kumar,
R/o H.No.105, Village Bindapur,
New Delhi.
Date of Institution : 12.12.2014.
FIR No.1144 dated 14.10.2014.
U/s. 323/342/324/376/511 IPC.
P.S. Bindapur.
Date of reserving judgment/Order : 18.5.2015.
Date of pronouncement : 18.5.2015.
JUDGMENT
1. Accused Pushpender Kumar has been facing trial for the offences u/s.323/342/376/511 IPC. He is the owner/landlord of house no.B-55, Pratap Garden, Uttam Nagar, New Delhi. The prosecutrix namely 'P' (real name withheld in order to conceal her identity) alongwith her family is residing as a tenant in a room on the first floor of the said house.
2. It is the case of the prosecution that the information was received in the police station on 14.10.2014 at about 1.52 p.m. from the Police Control Room to the effect that the caller's wife has been raped by their landlord in house no.RZB-55, Pratap SC No.10/15. Page 1 of 17 Garden, Bindapur. The information was recorded as DD No.51B and was entrusted to SI Ghasi Ram for suitable action. Accordingly, SI Ghasi Ram alongwith Const. Aman and Lady Const. Chhotu reached the spot of incident and met the prosecutrix 'P'. Her statement was recorded by SI Ghasi Ram. The relevant portion of the statement of the prosecutrix where she has mentioned the occurrence as reproduced hereunder :
".............. My elder son Rahul aged 13 years left for school at 12 noon. At about 12.30 p.m. I also left to fetch some goods from the shop and requested a lady named Beena, residing in the room in front of our room, to take care of my two daughters aged 6 years and 3 years respectively. After going downstairs, I again came up to bring money. When I reached the room no.4, the landlord Pushpender caught hold of my hand and pulled me inside the room. He had already taken off his clothes and tried to force himself upon me. He tried to take off my clothes and to do wrong act with me. He hit on my chest with his fist and also kicked me, as a result of which I received injuries. He bite me on my hand. He also took off my Salwar which i was wearing. I requested him several times not to do the wrong act with me. Thereafter I opened the bolt of the door and came out of the room. Meanwhile, my husband also came, who made a call at telephone no.
100. ....................."
3. SI Ghasi Ram prepared rukka on the aforesaid statement of the prosecutrix and got the FIR registered. After registration of the FIR, the investigation of the case was entrusted to SI Nirmal Sharma. She sent the prosecutrix alongwith Lady Const. Chhotu to the hospital for medical examination and seized the exhibits given by the doctor after medical examination of the prosecutrix. Accused was also sent to hospital alongwith Const.
SC No.10/15. Page 2 of 17Aman for medical examination. The exhibits given by the doctor after the medical examination of the accused were also seized by the IO. She prepared rough site plan of the spot of incident at the instance of the prosecutrix and thereafter arrested the accused. The prosecutrix was got counselled by a Counsellor of NGO. The statement u/s.164 Cr.PC of the prosecutrix was got recorded on 15.10.2014, in which she has mentioned occurrence in the following words:
".................... I took the lady residing on the ground floor to the doctor and returned therefrom at 12 noon. I saw that the landlord was heavily drunk. He went upstairs. He asked from me the key of the lock of the room which he had locked in the morning and laid inside the room after closing the door. I came to my room and sent my son to school. Thereafter, I told an aunt staying near us to take care of my daughters as I am going to fetch some goods. I came back from stairs to take money. As soon as I was coming back, he pulled me inside. I saw that the had taken off his clothes. He forced himself upon me and also beat me. He bite me on my arm and kicked me on my abdomen. I sustained injuries on my fingers and legs. He pushed me and took off my Salwar and put his hand inside me. Thereafter, he started abusing all the tenants. I had told him that I will shout. Then I somehow opened the door and came out. My husband, who had gone out, came. I went to the aunt while weeping. She asked me how I had sustained injuries. I narrated the whole incident to my husband and he called police. He started running away but police apprehended him. .........................."
4. It is further the case of the prosecution that all the exhibits of the case were sent to the IO for forensic examination. The prosecutrix handed over to the IO certain photographs which were seized by the IO.
SC No.10/15. Page 3 of 175. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned court.
6. Upon committal of the case to the court of Sessions, Charges u/s.342 IPC, u/s.323 IPC and u/s.376/511 IPC were framed against the accused on 23.2.2015. Accused denied the charges and hence trial was held.
7. The prosecution has examined 12 witnesses to bring home the guilt of the accused. The accused was examined u/s.313 Cr.PC on 21.4.2015 wherein he denied all the incriminating evidence put to him and claimed false implication. He stated that the prosecutrix has lodged false complaint against him at the instance of her husband in order to avoid payment of rent to him. He stated that they have neither paid any rent nor any electricity charges to him since they started residing in his house as tenant and their only intention is to enjoy his premises free of cost.
8. The accused examined three witnesses in his defence. DW1 is the owner of house no.C-1/7, Pratap Garden, Bindapur Extension, New Delhi, where the prosecutrix alongwith his family was residing as a tenant in the year 2013 - 14. He deposed that they paid him rent only for ten months and thereafter stopped payment of rent. Accordingly, he asked them to vacate the house and they vacated his house in August, 2014.
9. DW2 is also residing as a tenant in the house no.B-55, Pratap Garden, under the accused. She deposed that the SC No.10/15. Page 4 of 17 prosecutrix alongwith her husband started residing as a tenant in a room on the first floor of the house since September, 2014. She was herself residing on the ground floor. She stated that the accused had taken rent from her on 14.10.2014 at 7.30 a.m. and thereafter went upstairs. Soon she heard some shouts from the first floor and came to know that there has been verbal quarrel between accused and Sunil, husband of the prosecutrix. Thereafter, accused left the house. She also left for her work at 8.30 a.m.
10. DW3 is Smt. Beena residing as a tenant in a room on the first floor of the same house no.B-55, Pratap Garden, under the accused. She deposed that the prosecutrix had come to reside in a room on the first floor of the said house as a tenant on 14.9.2014. She further deposed that a quarrel had taken place between prosecutrix's husband Sunil and the landlord i.e. accused on 14.10.2014 at about 7.30 a.m. or 8 a.m. Accused was demanding rent from Sunil. Sunil was expressing his inability to pay the rent and this was the reason of quarrel but she stated that accused left thereafter and did not come back to the house throughout the day. She also stated that the prosecutrix had taken rent of Rs.6,000/- from her and has not returned the same as yet. In the cross examination, she admitted that the prosecutrix had left her two daughters with her on 14.10.2014 saying that she has to go to a nearby shop. However, she could not say whether this had happened at 12.30 p.m. She stated that she did not see accused present in their room adjacent to stairs at that time. She denied that accused was present in the house at that time and was drunk and attempted to commit rape upon the prosecutrix. Suggestion SC No.10/15. Page 5 of 17 was given to her that the prosecutrix has repaid a sum of Rs. 4,300/- to her and only Rs.1,700/- are outstanding from the prosecutrix to her which she denied.
11. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire record. I have also gone through the written submissions filed on behalf of the complainants (prosecutrix).
12. Prosecutrix has been examined as PW1. She has deposed in her examination in chief as under :
"I know the accused present in court today. He is our landlord i.e. the owner of aforesaid house no.B-55 where we are residing as tenant. On 14.10.2014 at about 6 a.m. or 7 a.m. I was present alone in my room. My husband had gone to Jeevan Park for some work. The accused knocked on the door of our room. I opened the door and asked him what the matter was. He told me that he has come to check the electricity meter. He was a little bit drunk at that time. He entered our room and checked the electricity meter in our room. He asked me for the electricity charges and the monthly rent. I told him that my husband would come in the evening and he should talk about the same to my husband. Thereafter he checked the electricity meter of other tenants in the house and then left.
At about 10 a.m. or 10.30 a.m., I took a lady residing as a tenant on the ground floor of the house to a Dentist for treatment. We returned at about 12 noon. Accused also reached there and met me outside my room. He was dead drunk at that time. He demanded the keys of the lock of the adjoining room from me which he had kept with me in the morning. I gave the keys. He opened the lock of that room and went inside. At about 12.30 p.m. I sent my son to school and kept my two minor daughters with a lady SC No.10/15. Page 6 of 17 named Beena staying in the adjoining room telling her that I am going to market. As soon as I reached the stairs, I realized that I have not taken money with me. I turned back towards my room. When I was passing in front of the room in which the accused was present, I saw him standing at the door of the room completely nude. He caught hold of my hand and dragged me inside the room. He gagged my mouth and tied my hands with the Chunni which I was wearing. He laid me on the bed in the room. He tied my feet with his shirt and laid upon me. He took off my Salwar and inserted his finger into my vagina. I tried to free myself but could not. He hit on my chest with his fist. I had also suffered injury on my abdomen when he had pushed me onto the cot. He had also bitten me on my left upper arm. I requested him to leave me and told him that I would shout but he said that he is the landlord of the house and nobody can cause any harm to him. However, he could not commit sexual intercourse with me. Meanwhile, he ejaculated and the semen had fallen on the bedsheet which was spread on the bed. Thereafter I somehow managed to escape from his clutches, opened the bolt of the door and came outside the room. At that very moment, I saw my husband coming from the side of stairs. He saw me holding my Salwar with my hands and also noticed injury marks on my body. He asked me what had happened and I narrated the whole incident to him. He made a call at telephone no.100."
13. She further deposed that the police officials came to their house but in the meanwhile, the accused had fled from the spot. Her statement Ex.PW1/A was recorded by the police officials and thereafter was brought to the police station. Meanwhile, accused was also brought to the police station by police officials. She was then taken to DDU Hospital where her medical examination was conducted and the doctor took into possession her Shirt, Salwar and Chunni. She also proved her statement u/s. 164 Cr.PC as Ex.PW1/B. She further stated that she had shown to SC No.10/15. Page 7 of 17 the police officials the room in which the incident had happened.
14. In the cross examination, she admitted that they had been residing in the house of the accused as a tenant for one month and five days before the date of incident. She deposed that her husband was not doing any work in the month of October, 2014 and he had gone to Jeevan Park for some job on 14.10.2014. She stated that her husband had left the house at 4 a.m. and returned at about 12.30 p.m. or 12.45 p.m. She further deposed that there were tenants in 8 rooms out of total 9 rooms in the house of the accused in October, 2014 and all tenants except one aged person were married. They were staying alongwith their families. He stated that at the time of incident, a lady named Beena, her husband and an aged lady residing on the ground floor only were present in the house. According to her, the room of Beena was opposite to their room. She deposed that they have paid the complete rent to the accused till the date but the accused has not issued any rent receipt to them. At the same time, she admitted that whenever accused's wife used to demand rent from her, she used to tell her that they would deposit rent in court and he should get rent from the court. According to her, they have deposited four months rent in court. However, she had not brought in documents to the court in this regard. She stated that Juli, Shanti, Nirmala, Hare Ram were staying as tenant on the ground floor of the said house in October, 2014. There was no other tenant residing on the first floor except their family and Beena's family. She deposed that she was not able to raise alarm during the incident as her mouth was gagged by the accused. She further denied all the suggestions put to her.
SC No.10/15. Page 8 of 1715. The husband of the prosecutrix has been examined as PW2. He deposed that he left his house on 14.10.2014 at about 5.30 a.m. for his work. When he returned home at about 12.30 p.m. and was climbing stairs, he saw his wife coming out of the room adjacent to the stairs. She was holding her Salwar by her hands. He saw the landlord i.e. accused standing inside that room wearing only the underwear. He asked his wife what had happened, who told him that the accused had laid her on the bed and taken off her Salwar. He made a call at telephone no.100 whereupon police officials came to the house, made inquiries from his wife and recorded her statement. They were then taken to police station. From where, his wife was taken to DDU Hospital for medical examination. He was declared hostile at the request of the Ld. APP and in the cross examination conducted by Ld. APP, he denied having said to the police in his statement that he had seen accused Pushpender lying on the bed in his room. He admitted that when he saw his wife coming out of the room adjacent to the stairs, she was weeping and was having injuries on her body. He admitted that the police officials had taken accused Pushpender also to the police station.
16. In the cross examination, he deposed that he is a driver by profession but had not been doing any job for about 15 days prior to the date of incident. He stated that he has paid only one month rent to the accused and did not pay any rent to him after registration of the FIR in this case. He admitted that five months rent is due and outstanding from her to accused. He further deposed that he had given five months rent to his lawyer SC No.10/15. Page 9 of 17 for depositing the same in the court but he did not know whether or not had the same been deposited in the court by lawyer. The lawyers did not handover any receipt to him in this regard. He stated that there are 8 tenants in the house of the accused including Shanti, Hare Ram, Beena, Vinod etc. The accused himself does not reside in that house. He stated that when he returned to the house on 14.10.2014 at 12.30 p.m., two tenants namely Shyam Kumar and Beena were present in the house. He also stated that the accused was taken to the police station in the same police gypsy, in which he was sitting whereas his wife had been taken in a separate vehicle. They reached the police station at about 2 p.m. or 2.30 p.m.
17. PW3 the doctor, who had examined the prosecutrix in DDU Hospital had noticed following injuries on her body :
(1) Bite mark on lateral aspect of left arm circular in shape about 6 to 7 cms. in circumference. (2) Swelling and tenderness in left hand middle finger in distal phalanx.
18. He proved the MLC of the prosecutrix as Ex.PW3/A. She deposed in the cross examination that bite mark could not have been self inflicted and the injuries found on the middle finger of the prosecutrix could be sustained in a scuffle or when somebody tries to protect himself from an assault. She deposed that this kind of injury too cannot be probably inflicted by self.
19. Undoubtedly, in the cases involving sexual assault SC No.10/15. Page 10 of 17 upon women, the conviction can be ordered on the basis of sole testimony of prosecutrix if the same appears to the court to be credible, trustworthy and inspiring confidence. If for certain reasons, the court is unwilling to place implicit reliance upon the deposition of the prosecutrix, it may see whether the other evidence on record lends support and assurance to her version. However, it is to be kept in mind by the court that like in all other criminal cases, in the cases relating to sexual assault upon women also, it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt by leading legally admissible evidence and it is not for the accused to explain why the witnesses have lied against him.
20. In the instant case, it is evident that the prosecutrix does not qualify as a sterling witness. Her statement is neither credible nor trustworthy. It does not inspire confidence of this court. She has made material improvements upon her statements recorded during the course of investigation and has changed her version of the incident in each of her statements.
21. In the initial statement to the police Ex.PW1/A which is the basis of the FIR, the prosecutrix has deposed that accused tried to take off her clothes and to do the wrong act with her. She has also stated that the accused had bitten her on her hand and also took off her Salwar which she was wearing. She did not state anything more in the statement. It is for this reason that the FIR was registered for the offence of attempt to rape u/s.376/511 IPC and this court also framed charge for the same offence against the accused. It is for the first time that the prosecutrix mentioned in SC No.10/15. Page 11 of 17 her statement u/s.164 Cr.PC Ex.PW1/B that the accused, after taking off her Salwar put his hand inside her. However, even this statement of the prosecutrix is too vague to convey clearly as to what act was done by the accused. She has not explained as to exactly where the accused had put his hand. The body part which was touched by the accused or into which the accused had put his hand has not been named by her. Therefore, this statement of the prosecutrix also does not advance the case of the prosecution that the accused had either raped the prosecutrix or had attempted to commit rape upon her.
22. She has further drastically improved her version while deposing before this court as PW1. Here she has testified that the accused gagged her mouth by her hand, tied her hands with her Chunni, tied her feet with his shirt, took off her Salwar and inserted his finger into her vagina. Thus her deposition before this court is a totally improved version and inconsistent with her statements recorded during the course of investigation. She has nowhere explained why did not she narrate the incident in these words in the FIR and in her statement u/s.164 Cr.PC. Even her husband deposing as PW2 has stated that when he asked his wife as to what had happened, she told him that the accused laid her on the bed and took off her Salwar. She did not mention anything else to her husband also. Hence I feel it totally unsafe and against the settled principles of criminal law to place any reliance upon the testimony of the prosecutrix. She appears to be a prevaricate as she has described the incident differently in each of her statements and has been improving her version at each step.
SC No.10/15. Page 12 of 1723. If the deposition of the prosecutrix is to be believed, she was dragged by the accused into his room, he then gagged her mouth by her hand, tied her hands with her Chunni, tied her feet with his shirt, took off her Salwar and inserted her finger into her vagina. She tried to free herself but could not. She requested him to leave her and told him that she would shout but he said that he is the landlord of the house and nobody can cause any harm to him. She then stated that the accused could not commit sexual intercourse with her. What prevented the accused from having sexual intercourse with her is not discernible from the evidence on record. The doctor, who has examined him after his arrest, has clearly mentioned in the MLC Ex.PW4/A that he is capable to perform sexual act. A lady i.e. the prosecutrix was before him with her hands and feet tied and Salwar taken off. There was nothing to prevent him from having sexual intercourse with the prosecutrix in these circumstances. The prosecutrix had not raised any alarm and hence nobody knew that she is with him in his room. He could have easily and without any hindrance inserted his private organ into the vagina of prosecutrix instead of inserting his finger into it. The manner in which the prosecutrix has described the incident before this court, as noted herein-above, makes the whole incident doubtful. The conscience of this court does not permit it to believe that the incident could have happened the way it has been narrated by the prosecutrix.
24. The prosecutrix has further deposed that she somehow managed to escape from his clutches of the accused, opened the bolt of the door and came outside the room. She has nowhere explained how could she manage to escape when her SC No.10/15. Page 13 of 17 mouth had been gagged by the accused and her hands as well as her feet had been tied by the accused. This also makes her version doubtful and far from being trustworthy.
25. The prosecutrix has deposed that she was alone in her room that morning as her husband had left the house at 4 a.m. and had gone to Jeevan Park for some job. Her husband (PW2) also has deposed that he had left his house at about 5.30 a.m. for his work. He has, however, deposed in the cross examination that he was not doing any job for about 15 days prior to the date of incident. So what was the job, which required him to leave his house early in the morning at about 4 a.m. or 5 a.m., has neither been explained by the prosecutrix nor by him. To the contrary, the defence witnesses have deposed that the husband of the prosecutrix (PW3) was present in the house when accused had come there and a quarrel had taken place between them over the issue of payment of rent.
26. Here I find it appropriate to refer to the deposition of DW3 Smt. Beena. She is also residing as a tenant in a room on the first floor of the accused's house and her room is opposite the room where the prosecutrix alongwith her family is residing as a tenant. Her presence in the house around the time when the incident is stated to have occurred on 14.10.2014 is admitted by both the prosecutrix (PW1) and her husband (PW2). PW1 has deposed that after sending her son to school at 12.30 p.m., she kept her two minor daughters with Beena telling her that she is going to market. It is immediately thereafter that the incident is stated to have occurred. PW2 has deposed in the cross SC No.10/15. Page 14 of 17 examination that when he returned home at 12.30 p.m. two tenants namely Shyam Kumar and Beena were present in the house. In view of the admitted presence of Beena in the house at the time when the accused is stated to have sexually assaulted the prosecutrix, her deposition as defence witness becomes very relevant. As already noted in paragraph no.10 herein-above, she has deposed that a quarrel had taken place between the prosecutrix's husband Sunil and the landlord i.e. accused on 14.10.2014 at about 7.30 a.m. or 8.00 a.m. She stated that the accused had demanded rent from Sunil but Sunil was expressing his inability to pay the same and this was the reason for the quarrel. She further stated that thereafter accused left and did not come back to the house throughout the day. She has specifically deposed in her cross examination that she did not see the accused present in the room adjacent to the stairs at the time when the prosecutrix had left her two daughters with her to be taken care of.
27. There is nothing in her cross examination to suggest that there was any animosity between her and the family of the prosecutrix which may have impelled her to testify falsely against the prosecution case. To the contrary, it appears that she was having very friendly terms with the prosecutrix and for this reason, the prosecutrix had kept her two minor daughters in her custody while going to market. Prosecutrix had also borrowed Rs.6,000/- from her which also depicts that the two shared a very close bond with each other. There is no evidence on record to show that any quarrel had taken place between the two after the incident in question. In view of the same, I see no reason to disbelieve the SC No.10/15. Page 15 of 17 deposition of this witness. Her testimony demonstrates that the prosecutrix's husband Sunil had not gone out of the house early in the morning of 14.10.2014 but was present in the house even at about 7.30 a.m. or 8.00 a.m. when the accused had approached him for payment of rent. Her testimony further indicates that Sunil showed his inability to pay rent to the accused which was a reason for quarrel between the two and thereafter the accused left not to come back to the house again. The testimony of this witness, therefore, demolishes the entire prosecution case and it does not leave any scope to even imagine that any incident, as mentioned by the prosecution, had taken place.
28. The case of the prosecution that the accused was heavily drunk and had launched sexual attack upon the prosecutrix in drunken state is not supported by the result of his medical examination. The accused had been examined in DDU Hospital by PW4 on the same day i.e. 14.10.2014 at about 5.25 p.m. i.e. just after five hours of the incident. The MLC Ex.PW4/A nowhere mentions that the accused was drunk. PW4 has stated in his cross examination that the accused was not smelling of alcohol when he examined him. This too exposes a major lacunae in the prosecution case.
29. Apart from the aforesaid discrepancies and lacunae in the prosecution case, I find that there has been a considerable delay in reporting the matter to police. PW1 has deposed that her husband returned home at about 12.30 p.m. or 12.45 p.m. and when she narrated the incident to him, he made a call at telephone no.100. Her husband PW2 has stated that he returned SC No.10/15. Page 16 of 17 home at about 12.30 p.m. and upon hearing from his wife about the incident, made a call at telephone no.100. Thus it can be very well discerned from the testimony of these two witnesses that the call at telephone no.100 was made by PW2 at around 12.45 p.m. However, the record shows that the call at telephone no.100 had been made at 1.52 p.m. No witness of the prosecution has explained the delay in making call at telephone no.100 which also makes the prosecution case intensely doubtful.
30. In view of the above noted discussion, the conscience of this court does not permit it to hold the accused guilty. The evidence led by the prosecution is shaky and far from being credible or trustworthy. The testimony of the prosecutrix suffers from embellishments and prevarications. It does not inspire any confidence at all. No other evidence on record supports or lends assurance to her version. To the contrary, the evidence lead by the accused in his defence demonstrates that no such incident, as projected by the prosecution did take place.
31. Resultantly, the accused is liable to be acquitted and is hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 18.5.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.10/15. Page 17 of 17