Delhi District Court
State vs . Sohail Hussain. 1/22 on 11 October, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 355/2019
State V Sohail Hussain s/o. Mohd. Ragib
Hussain, R/o. C11/30, Gali No.1, Near
Amja Masjid, Kabir Nagar, Babar
Pur, Delhi.
FIR No. 52/2019
U/s 376/506 IPC
Police Station Nabi Karim
Assigned to Sessions 12.04.2019
Charges framed on 12.04.2019
Arguments heard on 11.10.2019
Judgment pronounced on 11.10.2019
Decision Acquitted.
Appearance : Sh. Ateeq Ahmad, ld. Addl. PP for the State.
Sh. Vikas Aggarwal, ld. Counsel for accused.
JUDGMENT:
1. The case of the prosecution is that, the Station House Officer of Police Station Nabi Karim had filed a chargesheet before the court of ld. Metropolitan Magistrate vide FIR No.52/2019 dated 11.02.2019 u/s. 376/506 IPC for the prosecution of accused Sohail Hussain and after compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Case No.355/2019 State Vs. Sohail Hussain. 1/22 Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Hon'ble Supreme Court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475"
and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name and identity of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. That, in this case, criminal law was set into motion on the handwritten complaint of prosecutrix dated 11.02.2019 made to the police station Nabi Karim and FIR No. 52/2019 u/s. 376/506 IPC was registered. In her handwritten complaint, prosecutrix has alleged that in the month of November'2018, the friendship between the prosecutrix and the accused started at Shadipur Bus Depot and thereafter, they started meeting at Shadipur Metro Station or Punjabi Bagh and talked about their marriage. Thereafter, the prosecurtrix got the accused introduced with her mother Thereafter, the prosecutrix and the accused kept on meeting daily.
3. That, on dtd. 23.01.2019 at about 8:30 p.m., accused took the prosecutrix to hotel Radha Krishna, where he talked with her first and thereafter, he established physical relation with her forcefully without her consent and will despite her refusal. Thereafter, they both left for their respective houses. After the said incident, the accused used to ensure the prosecutrix to marry with her. About 23 days prior to the lodging the FIR, accused met the prosecutrix near R.K. Ashram Metro Station and he refused to marry with her and also threatened her to kill her if she made complaint against him and she wants legal action against the accused and on the basis of the complaint, W/ASI Babita prepared rukka and get the case registered and then she along with prosecutrix reached at the place of incident and prepared site plan.
Case No.355/2019State Vs. Sohail Hussain. 2/22
4. That, on dtd. 11.02.2019, prosecutrix was medically examined in Lady Hardinge Medical College and Smt. S.K. Hospital, New Delhi. On dtd. 12.02.2019, prosecutrix was produced in the court of Ld. MM where her statement u/s 164 Cr.P.C. was recorded.
5. That, on dtd. 27.02.2019, accused was arrested and his disclosure statement was also recorded and he was medically examined from Dr. RML Hospital and on dtd. 28.02.2019, his potency test was also conducted. After investigation, chargesheet was filed.
CHARGE:
6. That, on the basis of material available on record as well as the evidence, collected by the I.O. during the course of investigation, this court, vide order dated 12.04.2019 framed charges against accused Sohail Hussain for the offence punishable u/s. 376/506 IPC to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
7. That, in order to prove its case, prosecution has examined 08 witnesses namely PW1 ASI Sanjay Singh, PW2 Prosecutrix 'FA', PW3 Ct. Rajesh, PW4 Dr. Nisha Singh, PW5 W/HC Kala Ganesh, PW6 Ms. 'H', PW7 Sh. Parvinder Singh and PW8 W/ASI Babita.
PWs Name of the Nature of the Documents proved
Witness witness
PW1 ASI Sanjay Police witness This witness has proved copy of
Singh FIR vide Ex.PW1/A. He has also
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State Vs. Sohail Hussain. 3/22
issued certificate u/s 65 B of Indian
Evidence Act regarding correctness
of the contents of FIR vide
Ex.PW1/C.
PW2 Prosecutrix 'FA' Victim/ Prosecutrix being victim of the
Complainant alleged sexual assault has testified about her complaint given to the police is Ex.PW2/A as well as making of her statement u/s 164 Cr.P.C. before Ld MM Ex.PW2/C. She has proved her MLC vide Ex.PW2/B. PW3 Ct. Rajesh Police witness This witness has taken the accused to Lady Hardinge Medical College & Smt. Suchitra Kriplani Hospital, Delhi and got him medically examined. In his presence, I.O. has prepared pointing out memo Ex.PW3/A. This witness has proved arrest memo of accused vide Ex.PW3/B, personal search memo of accused vide Ex.PW3/C and disclosure statement of accused vide Ex.PW3/D. PW4 Dr. Nisha Singh Medical This witness has proved MLC of witness prosecutrix on behalf of Dr. Jyoti Priya vide Ex.PW2/B. PW5 W/HC Kala Police witness This witness deposed that on Ganesh 11.02.2019 at about 8:30 p.m., Duty Officer handed over her computerized FIR of present case and original rukka for being handed over to the I.O. at LHMC Hospital.
She reached at LHMC Hospital and handed over the same to the IO ASI Babita. In her presence, IO prepared site plan Mark C on the Case No.355/2019 State Vs. Sohail Hussain. 4/22 pointing of the prosecutrix. In her presence, IO checked the register of the hotel and found the entry of accused Sohail Hussain and the prosecutrix dtd. 23.01.2002.
She further deposed that on dtd.
15.02.2019, she again joined the investigation in the present case with the IO. Hotel Manager Balwinder Singh was present with the IO and he produced two original page of register of the hotel, copies of ID, a CD containing CCTV Footage and attested copy of the license of the hotel, to the IO and IO seized the same vide seizure memo Ex.PW5/A and all the abovesaid documents are seven in number and the same are Ex.PW5/B colly.
PW6 'Ms. H' Public witness This witness is the mother of prosecutrix. She has deposed that in the month of December'2018, her daughter had told her that she likes a boy namely Sohail and wants to marry with him and she asked her daughter to get the accused Sohail introduced with her and thereafter, in the month of January'2019, her daughter (prosecutrix) got the accused introduced with her and she talked with accused and thereafter, she agree for the marriage of her daughter with accused and she told the accused that she would come to his house to talk about the marriage of her daughter with him and Case No.355/2019 State Vs. Sohail Hussain. 5/22 thereafter, the accused left.
She further deposed that on one day, accused took her daughter from her house on the pretext of roam around Delhi and when her daughter returned back, she was not looking normal and on her repeated inquiry her daughter told her that the accused had taken her to a hotel at Nabi Karim and he established forceful physical relation with her despite her daughter told him that they will solemnized marriage first.
Thereafter, she along with her brother and her daughter visited the house of accused, Sohail and talked about the marriage of prosecutrix with accused but the family members of the accused i.e. mother, brother and uncle and accused put a condition before her that there is rupees seven lakh due upon the accused and she should have to pay rupees seven lakh but the said family members of the accused was refused for the marriage of the accused with her daughter.
PW7 Sh. Parvinder Public Witness This witness is the Manager of Singh Hotel Radha Krishna, 8913/2, Street No.2, Multani Danda, Pahar Ganj, Delhi. He deposed that on dtd. 15.02.2019, he produced the register containing the relevant entry of the accused and prosecutrix Ex.PW7/A, copy of IDs of accused and prosecutrix vide Ex.PW7/B, attested copy of license Case No.355/2019 State Vs. Sohail Hussain. 6/22 of the hotel Ex.PW7/C, CD containing a relevant CCTV Footage vide Ex.PW7/D along with certificate u/s 65B of Indian Evidence Act Ex.PW7/E and three photographs Ex.PW7/F1, Ex.PW7/F2 and Ex.PW7/F3 to the IO and IO seized the same vide seizure memo already Ex.PW5/A. During his examination, Ld. Defence counsel submitted that he does not dispute about the contents of the abovesaid CD Ex.PW7/D i.e. the relevant CCTV footage of hotel dated 23.01.2019 to 24.01.2019 from 7:30 p.m. to 2:00 p.m. PW8 W/SI Babita Police This witness is the Investigating witness/I.O. Officer of the present case and she deposed on the lines of investigation. She has proved complaint of prosecturix vide Ex.PW2/A and she made inquiry from prosecutrix and made her endorsement Ex.PW8/A and produced the same to DO for registration of FIR. Thereafter, she along with the prosecutrix reached at LHMC hospital and got her medically examined vide MLC Ex.PW2/B and prosecutrix had refused for her internal examination. Thereafter, she along with W/HC Kala Ganesh and prosecutrix reached at Hotel Radha Krishna, Multani Dhanda, Nabi Karim where the prosecutrix pointed out the place of occurrence in a room no.203, Second Floor.
She prepared site plan Ex.PW8/B Case No.355/2019 State Vs. Sohail Hussain. 7/22 at the instance of prosecutrix.
Thereafter, she instructed the Manager to produce the abovesaid register of the hotel, copy of license of the hotel, CCTV footage along with certificate u/s 65B of India Evidence Act.
During the investigation, on dtd.
12.02.2019, she got the statement of the prosecutrix u/s 164 Cr.P.C.
recorded by Ld. MM vide her application Ex.PW8/C. During the course of investigation, she seized the relevant documents of the hotel Ex.PW5/B, Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/E and the photographs of the hotel vide Ex.PW7/F1 to F3 vide seizure memo Ex.PW5/A. During the course of investigation, on dtd. 27.02.2019, at about 5:30 p.m., she arrested the accused vide arrest memo and personal search memo Ex.PW3/B and Ex.PW3/C respectively and his disclosure statement Ex.PW3/D was recorded and accused pointed out the place of occurrence vide pointed out memo Ex.PW3/A. She got the accused medically examined regarding potency in RML Hospital vide his MLC Ex.PW8/E and after completion of investigation charge sheet was filed.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
8. That, after recording the evidence of the prosecution witnesses, all the Case No.355/2019 State Vs. Sohail Hussain. 8/22 incriminating evidence put to the accused and his statement was recorded u/s 313 Cr.P.C. Accused denied all the incriminating evidence against him. Accused claimed that he met with the prosecutrix first time on 17.01.2019 at Spa, Near Pillar No.234 and she has taken his number from the record of Spa Centre and she called him on the very same day and prosecutrix wanted to meet him and she called him at Punjabi Bagh Metro Station on 21.01.2019. Thereafter, she took him to Radha Krishan Hotel at about 12:00 noon and she talked him in the room of the hotel regarding marriage with him by saying that "Mujhe gharwalaon ka pyaar nahi mila mera mata pita ki apas mai nahi banti aur woh saath nahi rehte aur mai bhi apni nani ke yahan rehti hu mujhe aapka pyaar chahiye." Thereafter, they left the hotel at about 4:00 p.m. Again she called him on 23.01.2019 in the same Hotel where he and prosecutrix stayed whole night in the hotel and thereafter, they returned from the hotel.
9. He further claimed that on 08.02.2019, prosecutrix has made a whatsapp call to him and sent the copy of FIR through whatsapp and she demanded Rs.10 lacs from him by saying that otherwise she will get him involved in a false case and on the same day, he visited PS Nabi Karim but I.O. was not available in the Police station and he returned back to home. Thereafter, he received a call of a police official and he told him that "uska kaam hi yahi hai. Paise de do faiyde mai rahoge". Accused further claimed that he never established physical relation with the prosecutrix on the false pretext of marriage. He is innocent and he has been implicated falsely in the present case for not fulfilling the above said illegal demand of money. Accused has not preferred to lead any defence evidence.
ARGUMENTS:
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10. Ld. counsel for accused has argued that accused is innocent and has nothing to do with the alleged offence and there are several contradictions in the statement of the complainant.
11. Ld. counsel for accused has further argued that only to extort money from the accused, prosecutrix has falsely implicated the accused in the present case and she has refused for her internal examination during the medical examination and make a submission that accused may kindly be acquitted in this case FIR.
12. Per Contra, Ld. Addl. PP for the State submitted that prosecutrix has supported the case of prosecution and in her complaint and her statement u/s 164 Cr.P.C., she has specifically deposed against the accused regarding the incident. It has been deposed by the prosecutrix that the accused has estabished physical relation with her without her consent and will on the pretext of marriage despite the prosecutrix had stopped the accused from establishing physical relation with her and tried to establish the forceful physical relation with her, accused had met with the mother of prosecutrix in relation of his marriage with the prosecutrix.
13. It is further argued by ld. Addl. PP for the State that medical evidence has supported the version of the prosecutrix. Moreover, the prosecutrix explained the delay in lodging the FIR by deposing that the accused has refused to marry with her about 23 days back to lodging the FIR. He further submitted that accused is liable to be convicted.
PERUSAL OF RECORD:
14. Arguments heard. Record perused. On perusal of record, it is revealed that on Case No.355/2019 State Vs. Sohail Hussain. 10/22 the written complaint of prosecutrix Ex.PW1/A, present FIR was registered against the accused.
15. Before reaching at any conclusion, let the relevant section i.e. 376/506 IPC be reproduced, which are as under: Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law Case No.355/2019 State Vs. Sohail Hussain. 11/22 for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS OF THIS COURT:
16. Having heard the arguments advanced by ld. Counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the prosecution witnesses, this court is of the considered view that the present FIR was registered on the written complaint dtd. 11.02.2019 made by the prosecutrix in the PS Nabi Karim wherein she has alleged that the accused established physical relation with her on dtd.
Case No.355/2019State Vs. Sohail Hussain. 12/22 23.01.2019 in Radha Krishan Hotel on pretext of marriage and after framing the charge against the accused the prosecutrix was summoned to depose in this case and to prove the case of prosecution, she was examined as PW2 wherein she has deposed that the exact date is not remember to her however, 34 months back prior to the registration of the FIR, she met with accused at Shadipur Metro Station and they both talked to each other and also exchange their mobile numbers and thereafter, they both talked to each other normally for 67 days and thereafter, accused met her at Punjab Bagh Metro Station at about 12:30 p.m. The date is not remember to the prosecutrix, however, two months back prior to the registration of the FIR, the accused proposed her and she told the accused that she will discuss the matter with her family members and thereafter, she talked with her family members and told them that accused has proposed her but her father had refused for the proposal of the accused to marry with her but her mother asked her to get accused introduced and thereafter, she introduced the accused with her mother at her work place i.e. S.G. Memorial Hospital and her mother talked to the accused and accused also told to her mother that he wanted to marry with her.
17. It is also deposed that on dtd. 23.01.2019 accused called her at R.K. Ashram Metro Station and at about 8:30 p.m. she reached there and talked to each other for sometime and thereafter, accused took her to Hotel Radha Krishan, Pahar Ganj and hired a room at 3 rd floor and thereafter, accused took her in the room of the said hotel and accused asked her to make physical relation but she refused. Thereafter, accused said to her "shadi to hum logo ne karni hai tumhe kya dikkat hai aur mene unko bahut rokne ki koshish ki" and thereafter, she left the room and went downstairs. Thereafter, accused made a call to her on her mobile phone number and requested her to come back to the said room and Case No.355/2019 State Vs. Sohail Hussain. 13/22 thereafter, she returned back to the accused in the said room and thereafter, accused established physical relationship with her forcefully without her consent and will despite her resistance and refusal and thereafter, she lost her senses. Accused get her woke up at around 11:00 a.m. but she was feeling giddiness. Accused provided milk to her, she changed her clothes in wash room and between 1:30 - 2:00 p.m., they both left the hotel and she reached at her home and accused also left for his house to change his clothes and thereafter, they normally talked to each other for next three days but after 34 days, accused refused to marry with her and thereafter, she made a call on Woman Helpline number 181 for help and thereafter one madam was talking to her and she told to her mother that said madam of 181 was calling her and her father but her mother told her that since the accused was refusing to marry her, so there would be no use to go to said madam of 181 and her mother told her that she would discuss the matter with her father and thereafter, she left the matter on her parents till 10.02.2019 as she was unable to make any decision. That, on dtd. 11.02.2019, in the morning she left her house after making the call on 181 and reached at PS Nabi Karim for lodging the FIR against the accused and on the said complaint the present FIR was got registered. Thereafter, her statement u/s 164 Cr.P.C. got recorded by ld. MM.
18. That, in the cross examination carried out by the ld. Defence counsel for the accused, prosecutrix has admitted that she received call of accused and by that time, she did not know the accused and the date, month and year is not remember to her but it was her first day of her job in the Parlour where she was doing work as a Receptionist.
19. The prosecutrix has also admitted in her cross examination that she developed Case No.355/2019 State Vs. Sohail Hussain. 14/22 friendship with the accused and accused talked with her mother for marriage.
20. It is worth mentioning that in the cross examination a suggestion was put by ld.
Defence counsel to the prosecutrix that she was pressurizing the accused to get marry but the accused was not ready for the same and this suggestion was not admitted by the prosecutrix, rather she has deposed voluntarily that "I do not want to get married with accused."
21. The prosecutrix has also admitted in her cross examination that, before dtd.
23.01.2019, she accompanied accused to various places like restaurant, metro station etc. in Delhi but the date is not remember to her.
22. A specific question was put by the ld. Defence counsel to the prosecutrix during the course of cross examination that :
Q. Whether before going to hotel room with Sohail, you refused to go there or not ?
Ans. I cannot give the answer of this question.
23. That, this court is also of the considered view that after perusal of copy of FIR and evidence on record and the case set up by the prosecutrix seems to be highly unrealistic and unbelievable. The evidence as a whole including the FIR and testimony of the prosecutrix clearly indicates that the story of the prosecutrix regarding sexual intercourse on false pretext of marrying her concocted and not believable. Reliance is placed upon Tilak Raj Vs. State of Himachal Pradesh AIR 2016 (4) SCC 140.
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24. That, the testimony of prosecutrix is also highly improbable and unbelievable on the ground that she made a complaint against the accused to the police on dtd. 08.02.2019 and the same was marked to W/ASI Babita who is also I.O. of this case and the said complaint is a handwritten complaint, written by the prosecutrix addressed to the SHO PS Nabi Karim wherein she had admitted that in a Hotel Radha Krishan Nabi Karim where accused took her in a room of that hotel and there they made physical relationship with their consent and in the cross examination, she has admitted that "It is correct that I had forwarded the complaint Ex.PW2/D1 to accused through Whatsapp on dtd. 08.02.2019 on his mobile phone." The prosecutrix has also admitted that the contents of complaint Ex.PW2/D1 are not completely true and some of the contents are true and some are false and she further admitted that the following lines of complaint Ex.PW2/D1 "hum dono ki marzi se sharirik sambandh bane is false."
25. She has also admitted that she made a false complaint Ex.PW2/D1 as she does not want the accused in trouble and does not want to implicate him in a false case.
That, this court is very much conscious of the fact that evidence of the prosecutrix is required to be appreciated in a realistic human assessment. It is an established law that evidence of the prosecutrix did not require any corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. It has also been laid down by Hon'ble Apex Court of India in various judgments that evidence of the prosecutrix can be sole basis of conviction, provided testimony of the prosecutrix is worth of credence, believable and trustworthy. But in this case, the testimony of the prosecutrix itself is unreliable as at one time she denied the complaint made by her against the accused on dtd. 08.02.2019 Case No.355/2019 State Vs. Sohail Hussain. 16/22 Ex.PW2/D1 to the police and on the other hand she has admitted that the said complaint was also forwarded through Whatsapp to the accused and after making the said complaint wherein she has herself mentioned that the physical relation were established with her by accused were consensual and with the consent and after three days of the said complaint she made another complaint to the police wherein she has stated that the accused had established physical relation forcefully without her consent.
26. PW6, mother of the prosecutrix appeared in the witness box and in the cross examination, she has also admitted that her daughter had told her that she had gone to PS Nabi Karim on dtd. 08.02.2019. She did not tell her that whether anybody accompanied to the PS on dtd. 08.02.2019. Therefore, it has been proved that the prosecutrix had made written complaint to the PS on dtd. 08.02.2019 wherein she herself has stated that physical relation established by the accused with her were consensual and with her own free will.
27. The prosecutrix has also deposed against the accused that on dtd. 23.01.2019, accused established physical relation with her forcefully without her consent and PW7 Manager of the Hotel Radha Krishan, Street No.2, Multani Danda, Pahar Ganj, Delhi appeared in the witness box and has deposed that the I.O. inspected the room No.203, second floor and checked the Hotel Register regarding relevant entry of the prosecutrix and accused of dtd. 23.1.2019 and the copy of visiting register maintained by the Hotel Manager as well as CCTV footage were handed over to the I.O. and after gone through the three photographs of the reception area of Hotel Radha Krishan as well as entry made by the prosecutrix and the accused in the Hotel Visiting Register clearly establish that no force was being used by the accused with the prosecutrix at Case No.355/2019 State Vs. Sohail Hussain. 17/22 any point of time and she herself with her free will and consent visited the Hotel Radha Krishan on dtd. 23.01.2019 with the accused and also furnished her ID voluntarily to the manager of the hotel and the prosecutrix herself also made the payment of that room of Hotel Radha Krishan. In the cross examination, PW7, Manager of the hotel Radha Krishan has admitted that "It is correct, the fare of the room, Rs.1,500/ were given by the prosecutrix in cash."
28. PW7, Manager of Hotel Radha Krishan has also admitted that on dtd.
21.01.2019 accused and prosecutrix had also come to their hotel and stayed there and had given their I.D.s voluntarily.
29. The prosecutrix is a major and matured lady who is doing the job as receptionist in a Spa at Delhi and she voluntarily visited the room of the hotel with the accused and provided her I.D. voluntarily and also making the payment of the fare of that room of the hotel then it cannot be said or believed that the accused established physical relation with the prosecutrix without her consent. Rather, it is the consent of the prosecutrix and she voluntarily with her free will and consent visited the hotel Radha Krishan on dtd. 23.01.2019 with the accused and also established physical relation with her free will and consent as she has admitted in her complaint made to the police on dtd. 08.02.2019.
30. It is also pertinent to mention that prosecutrix herself denied to get marry with the accused and the accused was ready to marry with the prosecutrix and relationship established between the accused and the prosecutrix were consensual in nature and this is a clear case of relationship between two consenting adults for mutual sexual gratification and even if the entire Case No.355/2019 State Vs. Sohail Hussain. 18/22 allegations made by the prosecutrix in the complaint as well as in the statement u/s 164 Cr.P.C. are accepted as true, then it would be clear that she was consenting party and no offence u/s 376 IPC is made out and with regard the consent in case of rape, the Hon'ble Supreme Court in case Deepak Gulati vs. State of Haryana reported as AIR 2013 SC 2071 has held as under :
"18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent in an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."
31. It is pertinent to mention that perusal of the MLC carried out by the doctor of Hindu Rao Hospital, the prosecutrix has not consented for her internal medical examination and there is no medical or scientific evidence against the accused Case No.355/2019 State Vs. Sohail Hussain. 19/22 to prove that the accused has made physical relation with the prosecutrix without her Consent and Will.
32. That, prosecutrix has made handwritten complaint in the police station Nabi Karim on 11.02.2019 whereas date of alleged incident is 23.01.2019 and there is inordinate delay in reporting the matter to the police and there is no explanation with the prosecutrix to that effect.
33. That, as per law laid down by Hon'ble Apex Court of India that first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed and when an occurrence is not reported for more than 32 days after the occurrence though the police station is only at a very short distance from the place of the occurrence then it is unsafe to base conviction upon the evidence. Reliance is placed upon Thulia Kali V State of Tamil Nadu, AIR 1973 S.C. 501.
34. That, in criminal trial, one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why, if there is delay in either coming before the police or before the Court, the Courts always view the Case No.355/2019 State Vs. Sohail Hussain. 20/22 allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution. Reliance is placed upon Dilawar Singh v/s State of Delhi, Criminal Appeal No.491 of 2002 decided on 05.09.2007 of Hon'ble Supreme Court of India.
35. Therefore, in these facts and circumstances, this court is of the considered view that prosecution has not been able to prove its case as well as the charge of the offence u/s 376/506 IPC against the accused beyond reasonable doubt and hence, accused Sohail Hussain is hereby acquitted from the charges punishable u/s 376/506 IPC.
36. In terms of section 437 A Cr. P.C., accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
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37. Since, the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
38. Every page of this judgment is signed by me.
39. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 11.10.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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