Delhi District Court
State vs . Balbir Singh on 16 January, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.9310/16
FIR No.254/16
PS Vasant Vihar
U/s 376/313/506/509 IPC
State Vs. Balbir Singh
S/o Sh. Darwan Singh
R/o H.No.153, Munirka Village,
Vasant Vihar, New Delhi
Permanent Address : Village Seesamwada,
Thana Prem Nagar, Distt. Dehradun, Uttrakhand
Date of Institution 29.04.2016
Argument heard/order reserved 13.01.2017
Date of judgment 13.01.2017
Final Order 16.01.2017
JUDGMENT
FACTS OF THE CASE
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Criminal Procedure Code (for short Cr.P.C), are that in the year 2007 the prosecutrix 'MB' D/o 'DS' (name of the prosecutrix is withheld with view to conceal her identity) was studying in class X and residing in the area of Vasant Vihar alongwith her parents. The accused was the cousin uncle of prosecutrix and used to visit her house. One day in the month of February, 2007, the accused went to the house of prosecutrix. At that time her parents had gone to Dehradun and her both brothers were playing outside her house. Then the accused caught her hand and started touching her body. When prosecutrix objected to his act, he told her that he liked her and would marry FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 1 of 20 her as he did not love his wife and made physical relationship with her forcibly against her will and without her consent. Thereafter, the accused continued to make physical relationship with her whenever she was alone at her home till December, 2007 and also used to beat her whenever she used to object his wrong acts. Due to his wrong acts, prosecutrix got pregnant. Then the accused took her to a Private Clinic at Katwaria Sarai in the mid of August, 2007 where she came to know that she was pregnant of six months and the accused forcibly got her pregnancy terminated without her consent. After this incident, the accused told the prosecutrix that she had become unclean, no one will marry her and only he would marry her and thereafter the accused stopped visiting her house. However, in the month of September-October, 2012 when the accused came to know that prosecutrix was going to be married with someone else, he threatened her that he would show the abortion report to people and also tell about the relationship to her would-be husband. The accused blackmailed the prosecutrix and asked to talk to him otherwise he would ruin her life by telling everything to her parents as well as her fiance'. "Accused even made a call to her fiance" and disclosed about her abortion to him. Thereafter the prosecutrix told the entire facts to her mother and made a police complaint against the accused. On the complaint of prosecutrix, present FIR was registered against the accused for the offence punishable u/s 313, 376(2)(n), 506 and 509 of Indian Penal Code (for short IPC).
INVESTIGATION
2. During investigation interalia other things, IO got conducted medical examination of prosecutrix in Safdarjung Hospital, prepared site plan at the instance of prosecutrix, got the prosecutrix counseled by NGO, got recorded statement of prosecutrix u/s 164 of Cr.P.C, arrested the accused, got conducted medical examination of accused in AIIMS Hospital. After FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 2 of 20 completion of investigation, challan was filed before the learned MM on 29.4.2016 and the case was committed to this Court on 10.5.2016.
CHARGE
3. On 03.06.2016, a charge was framed against the accused for the offences punishable u/s 313, 376(2)(n), 505 and 509 of IPC to which accused pleaded not guilty and claimed trial. Thereafter, matter was posted for prosecution evidence.
PROSECUTION EVIDENCE
4. In order to substantiate the allegations, the prosecution examined as many as fifteen following witnesses:-
(I) Prosecutrix/complainant as PW1 who reiterated the facts of the case and proved her complaint Ex.PW1/A and other relevant documents Ex.PW1/B to Ex.PW1/H.
(ii) Smt. Bimla Bisht, mother of prosecutrix as PW2 who reiterated the same facts as PW-1.
(iii) Sh. Dewan Singh Bisht father of the prosecutrix as PW-3 who also reiterated the same facts as PW-1 and PW-2.
(iv) Sh. Dheeraj Kumar, fiance' of prosecutrix as PW-4 who also reiterated the same facts as PW-1, 2 and 3 regarding call made by accused.
(v) Sh. Pawan Singh, Nodal Officer, IDEA Cellular Ltd. as PW-5 who proved the CDR of mobile phone of accused as Ex.PW-5/A alongwith certificate u/s.65-B Indian Evidence Act as Ex.PW-5/B and CAF Ex.PW-5/C.
(vi) WSI Kailash, IO as PW-6 who carried out the investigation in the present case.
(vii) W/SI Gyan Prabha as PW-7 who received DD no.9-A Ex.PW-6/A and recorded the statement of prosecutrix Ex.PW-1/D. She also accompanied the prosecutrix to Safdarjung Hospital for her medical examination and handed over FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 3 of 20 rukka, DD no.9-A and medical documents to IO (PW-6).
5. After completion of prosecution evidence, matter was posted for statement of accused.
STATEMENT OF ACCUSED
6. Statement of accused was recorded u/s 313 Cr.P.C separately. Accused had submitted that the prosecutrix contacted him on phone somewhere in the month of August/September 2015 and thereafter she used to interact with him and they used to meet each other. He also submitted that he and prosecutrix belong to the same village and he visited the house of prosecutrix once or twice in April 2008. But he denied rest of the material allegations and stated that he has been falsely implicated in this case by the prosecutrix. He has also stated that the prosecutrix asked for some financial help but he had refused for the same. Thereafter he tried to avoid meeting the prosecutrix but she became annoyed and kept a grudge against him. He also submitted that since he had a mobile phone having facility of auto-recording, he had produced the transcript of the call recording of prosecutrix Ex.PW-6/D1. However, accused opted not to lead any defence evidence.
FINAL ARGUMENTS
7. Final arguments heard on behalf of both the parties. I have gone through the records as well as relevant provisions of IPC and written submissions filed on behalf of accused.
8. It is argued on behalf of the State that the prosecutrix used to live at House no.75/L, CPWD Colony, Vasant Vihar, New Delhi alongwith her parents and two brothers. At that time, she was 17 years old and was studying in class X. The accused was her distant relative and used to visit her house. In the FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 4 of 20 month of February 2007, the accused visited her house when her parents were not at home and her brothers were playing outside. The accused started touching the prosecutrix inappropriately and when the prosecutrix objected to the same, he slapped her and closed her mouth with his hand. Thereafter accused told the prosecutrix that he liked her since her childhood and committed rape upon her forcibly. Accused thereafter, threatened the prosecutrix to kill her brothers in case she told anything to her parents and left the house.
9. It is further argued on behalf of State that on the next day, when the parents of prosecutrix returned, the prosecutrix did not disclose anything about the incident to them as she was frightened due to the threats extended to her by the accused. He has further argued that after 3-4 days, the accused again came to the house of prosecutrix in the absence of her parents and again raped her and told her that he did not like his wife and would marry the prosecutrix. Thereafter, the prosecutrix became pregnant. The accused took her to a nursing home at Katwaria Sarai and got her child aborted. He further told the prosecutrix that now she had become unclean and nobody would agree to marry her and that the accused would marry her.
10. It is further argued on behalf of the State that thereafter, the accused did not visit the house of prosecutrix. In the month of December 2007, the prosecutrix alongwith her family shifted to R.K.Puram, New Delhi and started adjusting with her life. He has further stated that in the year 2015, the accused again called the prosecutrix on her mobile phone and asked about her well being. The accused sought forgiveness from the prosecutrix stating that if she had told anything about the incident to anybody in her childhood, he would have landed in jail.
FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 5 of 20
11. It is further argued on behalf of the State that after some days, the accused again called the prosecutrix and inquired from her about the fixing of her marriage. The prosecutrix confirmed the fact that she had got engaged with some other boy. The accused thereafter, starting blackmailing her that he would disclose about his relation with her and would show the abortion report and forced her to talk to him regularly. Thereafter, the accused threatened the prosecutrix repeatedly that in case she would not talk to him, he would disclose everything about his relation with her to her parents as well as his fiance. The accused even called the fiance' of prosecutrix on his mobile phone and disclosed about the abortion of prosecutrix. He further argued that all these facts have been well corroborated by the prosecutrix in her testimony before the Court and prosecution case is fully supported by other witnesses. Therefore, accused may kindly be held guilty for the alleged offence.
12. On the other hand, apart from several other arguments, learned defence counsel argued that accused has been falsely implicated in this case. He had further argued that there is inordinate delay in filing the complaint. As per the case of prosecution, the incident of rape took place in February 2007 and same was reported for the first time on 18.2.2016. No cogent and plausible explanation has been offered by the prosecution for the delay. Ld. Defence counsel has further argued that there are material contradictions in the prosecution story as the statement of prosecutrix is inconsistent throughout her deposition and as such, her testimony can not be relied upon and is liable to be disbelieved. He has further argued that prosecutrix has given case history to the doctor that accused sexually assaulted her only once whereas she told in her statement u/s.164 CrPC and in her deposition before the court that accused made physical relations with her several times. In her MLC Ex.PW-1/C, the prosecutrix told the doctor that the sexual assault took place FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 6 of 20 in the evening in February 2007 whereas before the court she deposed that the incident occurred around 12/12.30 pm in noon. In her statement u/s.164 CrPC, the prosecutrix has deposed that the accused was residing in her house as a guardian whereas the prosecutrix deposed before the court that the accused visited her house in Vasant Vihar in the month of February 2007 and left the house in the evening after committing rape upon her. He has also argued that the prosecutrix had deposed in her statement that accused disclosed about her abortion to her fiance'. However, her fiance' Sh. Dheeraj did not state in his deposition that accused had informed him about the abortion. He stated that accused called him on his mobile phone which was received by his mother and accused informed her that the prosecutrix was not a good girl. The mother of Sh. Dheeraj Kumar was not examined by the police as a witness during investigation. Therefore, the testimony of Sh. Dheeraj is hearsay and not admissible in evidence.
13. Ld. defence counsel has further argued that the prosecutrix has claimed that she did not tell about the incident of February 2007 and thereafter to her parents as she was threatened by the accused that he will kill her, her brother and her family members. However, IO seized the mobile phone of the accused which was sent to RFSL, Chanakyapuri, New Delhi for examination and after the examination results were provided in DVD (CD) by RFSL and a transcript Ex.PW-6/D1 was prepared. As per the transcript, the prosecutrix wanted to meet the accused but he did not want to meet her. These facts are inconsistent with the testimony of prosecutrix and further prove that the prosecurtrix had no fear of the accused and she was insisting the accused to meet her and asked him to arrange some snacks and a bottle of wine. The contents of the CD show that the prosecutrix was comfortable with the accused.
FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 7 of 20
14. Ld. defence counsel has further argued that there are material improvements in the testimony of prosecutrix. The prosecutrix has claimed that she had been beaten by the accused when he established physical relations with her but no medical evidence was produced by the prosecutrix to corroborate her claim of being beaten. It is further argued that a specific question was put to her during her cross examination whether there were any visible injuries or swellings on her face because of the beatings given by the accused in February 2007 at the time of incident of rape, to which she replied that she does not remember.
15. Ld. defence counsel has further argued that as far as the charge of abortion/termination of pregnancy of prosecutrix is concerned, the prosecutrix did not provide any specific date about the act of abortion as well as the name of the doctor who conducted the abortion. The prosecutrix could not even point out the name of the clinic where the said abortion was conducted. Thus, the prosecution has failed to produce any cogent and reliable evidence in order to prove that accused has any hand in the abortion. On these grounds, it is prayed that accused may kindly be acquitted.
16. Learned defence counsel also placed reliance upon the judgment reported in
(i) 2015 (2) JCC 1348 Delhi High Court Love Kumar @ Bittoo vs State of Delhi
(ii) 2003 (1) JCC 276 Supreme Court of India Ashok Kumar vs State of Haryana.
RELEVANT PROVISIONS OF LAW
17. Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-
375. Rape. - A man is said to commit "rape" if he -
FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 8 of 20 ....
....
....
.....
under the circumstances falling under any of the following seven descriptions:-
First. - ....
Secondly. - Without her consent.
Thirdly. - ....
Fourthly. - ....
Fifthly. - ....
Sixthly. - ....
Seventhly. - ....
Explanation 1. - ....
Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity".
312. Causing miscarriage .-
Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment of FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 9 of 20 either description for a term which may extend to seven years, and shall also be liable to fine.
503: Criminal Intimidation.-
Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do nay act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
509: Word, gesture or act intended to insult the modesty of a woman.-
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, [shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.] CASE LAW
18. In the case of "Pradeep Kumar @ Pradeep Kumar Verma vs State of Bihar and Anr., Crl. Appeal No.1086 of 2007 decided on 17.08.2007, Hon'ble Supreme Court held as under:-
10. In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines consent as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. Jowitt, while employing the same language added the following:
FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 10 of 20 Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.
In words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American courts are found:-
Adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.
19. In "AIR 2012 Supreme Court 2281, titled as Narender Kumar vs State (NCT of Delhi), the Hon'ble Supreme Court has held that :-
The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case, the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and can not take support from the weakness of the case of FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 11 of 20 defence. However, great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against accused by reliable evidence. The accused is entitled to the benefit of doubt.
Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of the defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecution on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
The court must act with sensitively and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasions complained of.
20. In the light of above discussed principles of law, I propose to examine the evidence available on record whether in the present case accused made FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 12 of 20 physical relationship with prosecutrix with her consent on false promise of marriage.
FINDINGS:
21. In the present case, the accused has been charged for committing sexual assault for the first time in the month of February 2007 and thereafter, repeatedly after threatening prosecutrix to kill her and her family. Further he has been charged accused to get the pregnancy of the prosecutrix terminated against her will and without her consent as well as blackmailing of the prosecutrix telling her that he had abortion papers of the termination of the pregnancy of the prosecutrix and he would show it to her family as well as family of would be in laws. Further he has been charged to criminally intimidate the prosecutrix as well as threatening her not to disclose about the incident to anyone otherwise accused would kill the family members of the prosecutrix.
22. In her complaint ExPW1/E, the statement under Section 164 of CrPC ExPW1/H and in her testimony before the Court prosecutrix had reiterated almost similar facts regarding the aforesaid charges. However in her alleged history i.e. MLC ExPW1/C, she has stated that sexual assault was committed upon her only once that too in the evening time.
23. In her cross examination before the Court she has admitted that she can not tell the date of the first sexual assault or her abortion. She has further admitted that she was residing in thickly populated area surrounded with other government quarter at Vasant Vihar where the offence of sexual assault was committed upon her repeatedly. In her entire testimony, she has not disclosed as to how the accused came to know that her family members were not present at the home which is a relevant fact as all the time sexual FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 13 of 20 assault was committed upon the prosecutrix at her house in the absence of her family members. In her cross examination, the prosecutrix PW1 has failed to disclose any particular date of first incident of sexual assault. There is a contradiction regarding the time of commission of sexual assault in the month of February 2007 as in her testimony before the Court she has stated that it was around noon time and at the time of medical examination she has stated that it was done in the evening time. Here, it is to be noted that complaint is totally silent about the time of first sexual assault. Therefore, the statement recorded in MLC regarding time is the first version of the prosecutrix of the commission of the sexual assault which is stated to have been committed in evening. In the testimony before the Court she has also stated that her two brothers went outside the house to play but she has failed to disclose that whether it was a holiday or not.
24. There is contradiction regrading the manner of the commission of the first sexual assault offence. In her complaint and in testimony before the Court she has stated that before the commission of sexual assault for the first time, the accused told that he likes her since childhood and he wants to marry with the prosecutrix. Though, in her examination in chief she has reiterated the said stand but in her cross examination she took the different stand and has stated that after the incident accused told her that he loves her and this fact was told by the accused after few days of the incident. The different version regarding the factum of the liking raises doubt about the correct and true version of the prosecutrix. From the aforesaid testimony it can be said that there might be affair between the parties at that time and the the prosecutrix might have believed the words of the accused and might have consensual relationship, if any. This possibility is corroborated from the further testimony of the prosecutrix wherein she has admitted in her cross examination that she herself searched the doctor for the purpose of abortion, though in her FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 14 of 20 examination in chief she has stated that the accused asked him to visit the doctor with him and upon his insistence she consulted the doctor. This fact finds further corroboration from the examination in chief of prosecutrix itself wherein the prosecutrix has alleged that accused used to indulge similar act of rape with her against her wish and without her consent but in the same breath she has further sated that whenever she used to protest the accused, he used to state that he did not like his wife as such he would marry her as he liked her since her childhood. Thus all these facts give rise suspicion to the prosecution story that physical relationship if any, was there that was against the will and without consent of the prosecutrix. These all facts suggest otherwise that it might be consensual relationship between the parties.
25. There is further contradictory version stated by the prosecutrix regarding stay of the accused in February 2007 as in her examination in chief, she has stated that accused came again after 3 / 4 days of the first incident. But in her cross examination she has stated that accused also resided for 2 / 4 / 5 days at her house after the incident of February 2007. There is also contradictory version regarding hue and cry as in her examination in chief she has stated that when she tried to raise voice, the accused closed her mouth with his hand while in her cross examination she admitted that she had not raised any alarm as accused closed her mouth when he came to her house.
26. It is to be noted that prosecutrix has stated in her examination in chief that the accused had beaten her before sexual assault but in her earlier statements / complaint she has not alleged any such act by the accused. If allegations in complaint are taken into consideration, the case of the prosecutrix is that the accused took advantage of tender age of the prosecutrix and established physical relationship. But there is improvement in FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 15 of 20 the statement of the prosecutrix before the Court and she did not utter a single word that accused took the advantage of her tender age. It is to be noted that at the time of her testimony before the Court she has stated that she was aged about 25 years. Thus, at the time of first incident in February 2007, she must be above the age of 16 years. It is further to be noted that she did not disclose about the incident to the brothers though according to her, they returned in the evening at about 5 pm and when the accused left her home at around 6 / 6.30 pm, there was no reason for her not to disclose the incident. Furthermore, prior to the registration of the present case, even none of the family member of the prosecutrix came to know about any such incident with the prosecutrix nor the prosecutrix has disclosed the same to her parents. Furthermore, it is be noted that there were other persons / families residing in the neighbourhood where the sexual assault was committed upon the prosecutrix and therefore, the prosecutrix had all the opportunity to raise hue and cry at least after incident.
27. The witness PW4 in his testimony has stated that he was threatened by the accused on 15.01.2016 in case he would marry the prosecutrix on phone and he had also received other threatening calls number of times regarding the character of the prosecutrix. In this regard the transcript of recording ExPW1/D1 between the prosecutrix and accused of their conversation reveals that it is the prosecutrix, who was inquiring from the accused as to why he was not picking phone on whatsapp. The prosecutrix in her her further conversation has stated that she is coming on 14th but the accused was avoiding her. In further conversation ExPW1/D1 it is clear that the prosecutrix was adamant and was asking the accused to arrange the wine bottle and snacks etc on 14th. Prosecutrix, herself admitted in her cross examination that she was on talking terms with the accused till 18.02.2016 i.e. date of making the present complaint. Witness PW6/IO has admitted in FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 16 of 20 her cross examination that it is the prosecutrix who had sent a request to the accused to meet her but accused refused to meet her. She has further admitted that during the investigation, she did not find any clue as to how the accused came to know the mobile number of the prosecutrix after a long period or the mobile number of the witness PW4. PW6 has denied that PW4 had handed over any messages as claimed by him that he had handed over the threatening whatsapp messages to the police. All of this testimony makes it clear that it is the prosecutrix, who was in touch with the accused, specially the conversation of the prosecutrix with the accused through the transcript of messages ExPW6/D1 makes it clear that it is the prosecutrix who was insisting to continue the relationship with the accused. Though, accused was not ready to continue with the relationship and in the circumstances it can not be ruled out that it was the insistence of the prosecutrix and she was demanding money from accused and when he refused for the same, the present case has been filed.
28. Admittedly, there is delay for about 8 years in lodging the present case. In the entire testimony only execpt bald allegations of threatening / blackmailing on behalf of the prosecutrix, there is nothing on record to suggest that accused was having any medical documents of abortion of the prosecutrix or he was blackmailing the prosecutrix on the strength of those documents and thus, there is no plausible explanation for delay in lodging the present complaint.
29. Even the prosecutrix did not provide her mobile phone to the police for the purposes of forensic examination and though she told to the police that she will produce her mobile phone in the Court at the time of her testimony but reason best known to the prosecution the said mobile phone was never produced. As a matter of fact, the documents mark PW6/A i.e. whatsapp FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 17 of 20 messages were seized by the police to prove that the accused was threatening and blackmailing the prosecutrix by sending these messages but these messages has not been proved as per law as the primary evidence was never produced to prove these messages. In absence of primary evidence the content of these messages can not be read into evidence.
30. In this case there are two contradictory evidence available on record. It is settled law that if two views are possible on the evidence available on record, one pointing out the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In this regard reliance is placed upon the case reported as "2014 IV AD (S.C.) 33, Basappa vs State of Karnatka".
31. The Hon'ble Supreme Court further held in "AIR 1974 344. Harchand Singh and Another vs State of Haryana" as under:-
"11. The function of the court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be unreliable, the result would necessarily be that the court wold be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation".
FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 18 of 20
32. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. In this case also, the evidence of the prosecutrix is suffering from serious infirmities and inconsistencies with other material and she had also made deliberate improvements/concealments on material point including forceful physical relationship in her testimony before the court and there is no plausible explanation for the delay in lodging the complaint. It appears that the present complaint has been lodged when the accused stopped fulfilling the demand of the prosecutrix which is apparent from the transcript of FSL result of conversation recorded in the mobile phone of the accused. There is no explanation as to why the perosecutrix did not disclose about the incident which had happened in the year 2007 even to her family member till the lodging of the present complaint. Even in the first call made by the prosecutrix to the police, she has specifically stated that the matter should not come to the knowledge of the family of the prosecutirx. The unexplained delay for more than about 8 years itself raises the doubt over the prosecution FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 19 of 20 story.
33. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
34. Thus, in view of the aforesaid discussions, it is held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused stands acquitted for the said offences. He is directed to furnish fresh bail bond in the sum of Rs.10,000/- in terms of section 437A Cr.P.C.
At this stage, fresh bail bond furnished u/s.437-A of CrPC on behalf of accused with cash surety of Rs.10,000/- deposited vide receipt no.0808406 and accepted for a period of six months. Accused be released if not wanted in any other case. Intimation be sent to the concerned Jail Superintendent.
File be consigned to the Record Room after due completion.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/16.01.2017 Announced in open court on 16.01.2017 (Total number of page 20) (One spare copy attached) FIR No. 254//16 State vs Balbir Singh PS Vasant Vihar U/s 376/313/506/509 of IPC 20 of 20