Delhi District Court
State vs Accused on 25 April, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0041612010 SC NO. 55/13 Date of Institution :10.03.2010 FIR No.284/09 Date of Argument :04.04.2013 PS Karawal Nagar Date of Order :25.04.2013 U/S 366/376/34 IPC State Versus Accused 1. Deepak S/o Shyam Singh R/o Tomar ka makan, New Sabhapur, Gujran, Delhi. 2. Sunil Jaiswal @ Happy S/o Late Prem Chand R/o 122A, Near Senior Secondary School, New Sabhapur, Gujran, Delhi. 3. Tilak Nagar S/o Rattan Singh R/o 143, Gali No. 4, New Sahbapur, Gujran, Delhi. JUDGMENT
The facts in brief of the prosecution case are that ----X----, here in after referred to as the prosecutrix, was residing in the neighbourhood of the accused Deepak who was residing with his family as a tenant. Both of them met each other and developed talking terms. They also SC No.55/13 State vs. Deepak & Others Page 1 of 43 started talking for their marriage with each other. On 11.11.2009 at about 12 p.m. accused Deepak met the prosecutrix and asked her to accompany him. She replied that she was willing to accompany him provided he would marry her. She accompanied him and at some distance he took her in a house of the accused Tilak Nagar. When they entered into that house, the accused Tilak Nagar went out. Accused Deepak asked her that he was ready to marry her provided she would obey him. Thereafter, he committed sexual intercourse with her and she could not raise alarm as she was under fear. After 10-15 minutes accused Tilak Nagar and two more boys, namely, Happy and Baba (since absconding) came there. All of them, turn by turn, committed rape on her. Her condition was deteriorated. In the night, all of them took her to unknown place on motorcycles and all of them again, turn by turn, committed rape on her. She again lost her consciousness and on 13.11.2009 at about 5 p.m., she regained her consciousness and found a boy Baba present there who brought her to the main road. She remembered that it was the area of Shahdara. Baba got her boarded a TSR for Karawal Nagar. At about 7 p.m., she arrived at Karawal Nagar and reached at her house and told all the facts to her parents who brought her to P.S. Karawal Nagar where her statement was recorded and on the basis of her SC No.55/13 State vs. Deepak & Others Page 2 of 43 statement FIR No. 284 dated 14.11.2009 u/s 366/376/34 IPC was recorded. On inspection IO prepared site plan of place of occurrence. The prosecutrix was taken to GTB hospital for medical examination by lady Ct. Gargi. After medical examination her MLC was prepared and doctors took some samples which were given to lady Ct. Gargi. Doctor also prepared emergency card of the prosecutrix. Those samples were sealed by the IO and deposited in the malkhana. The prosecutrix pointed out the place of occurrence, i.e. house of co-accused Tilak Nagar from where he was arrested on 17.11.2009. His arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. He was also taken to GTB Hospital where he was medically examined and his MLC was prepared. It was observed by the doctor that there was nothing to suggest that he was not able to do intercourse. Doctor also obtained his samples and those were handed over to Ct. Hari Om, who took him for medical examination. He handed over the same to IO who seized the exhibits after preparing seizure memo and thereafter deposited the same in police Malkhana. On 18.11.2009 at the information and pointing out of the prosecutrix and her father accused Deepak and Sunil @ Happy were arrested. Their arrest memo and personal search memo were prepared and their disclosure SC No.55/13 State vs. Deepak & Others Page 3 of 43 statements were recorded. Both of them were also taken to GTB Hospital for their medical examination by Ct. Kamal Mishra and Ct. Kamal Kishore. MLCs of both the accused were prepared. Doctors also took samples of their semen and blood, etc. and handed over to concerned constable who handed over the same to the IO and IO seized the same after preparing the seizure memo and deposited the same in police Malkhana. It was observed by the doctor that both the accused were also capable to perform sexual intercourse. The exhibits were sent to FSL for analysis and thereafter, I.O. obtained FSL result. IO recorded statements of witnesses and after completion of investigation, filed a charge sheet against the accused persons for their trial for the offences punishable u/s 366/376/34 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to Sh. Sudesh Kumar, Ld. ASJ, Karkardooma Courts, Delhi.
3. Vide order dated 26.05.2010 the court opined that prima facie case for framing of charge against the accused persons for the offences punishable u/s 366/34 & 376(2)(g) IPC was made out. Therefore, charge against SC No.55/13 State vs. Deepak & Others Page 4 of 43 the accused persons for their trial for the said offences was framed and read over to them in vernacular language. They pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Vijay Tanha as PW1; Dr. Reena, SR (Obs), GTB Hospital as PW2; ---X---- prosecutrix as PW3; Ct. Kamal Kishore as PW4; L/Ct. Gargi Kumari as PW5; Retd. SI Dharamvir Singh as PW6; Ct. Pramod Kumar as PW7; ASI Pushpa as PW8; Ex. SI Dhirender as PW9; and K.D. Sharma, Dealing Clerk, MCD Office, City Zone, Delhi as PW10.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution also examined HC Om Prakash as PW11; and ASI Habib Ahmad as PW12.
7. After closing of prosecution evidence statements of the accused persons u/s 313 of the Code of Criminal Procedure, here in after referred to as the Code were recorded. All the material and incriminating evidence was put to them.
SC No.55/13 State vs. Deepak & Others Page 5 of 438. Accused Deepak admitted that he was residing in the neighbourhood of the prosecutrix and he was in talking terms with her for the last about two months. He also admitted that he was arrested on 18.11.2009 and his arrest memo EX.PW4/A and personal search memo EX.PW1/A were prepared and he was medically examined vide memo EX.C2 and that his samples were taken over by doctor and handed over to Kamal Mishra and doctor observed that his genitals were normal. He further admitted that witnesses have correctly identified him. He denied rest of the evidence and pleaded that family members of the prosecutrix wanted him to marry her but his family members refused the proposal of marriage and that is why he was falsely implicated in the present case.
9. Accused Sunil Jaiswal@ Happy only admitted the fact of his arrest on 18.11.2009 and that he was medically examined vide memo EX.C-3 and his samples were taken which were handed over to Kamal Kishore by doctor and doctor opined that there was nothing to suggest that he was not able to perform sexual intercourse. He also admitted that PWs correctly identified him. He denied rest of evidence. He pleaded that once there was a quarrel between him and father of the prosecutrix and for that SC No.55/13 State vs. Deepak & Others Page 6 of 43 reason, he was falsely implicated by her father in this case.
10. Accused Tilak Nagar also admitted the fact of his arrest on 17.11.2009 and preparation of personal search memo Ex. PW12/C and arrest memo EX.PW1/C and conduct of his medical examination and handing over of the samples by the doctor to police official and that doctor opined that there was nothing to suggest that he was not able to do intercourse. He denied rest of the evidence and pleaded that H.No. 140, New Sabhapur, Gujran, Delhi is house of his parents. It is a double storey house. Four tenants Rajpal, Arvind, Mukat Singh and one another were residing at the ground floor. Accused Deepak did not bring the prosecutrix to his house at any point of time and he was falsely implicated.
11. In support of their defence, accused examined Bans Raj Singh as DW1; Sh. Shyam Singh as DW2; Sh. Mithai Lal Yadav as DW3; and Smt. Usha Devi as DW4.
12. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused persons and perused file.
13. It has been argued on behalf of Ld. Additional SC No.55/13 State vs. Deepak & Others Page 7 of 43 Public Prosecutor that prosecution witnesses have proved both the offences against the accused person beyond any reasonable suspicion and shadow of doubt and the accused are liable to be held guilty and convicted for the said offences.
14. On the other hand, it has been argued on behalf of Ld. Defence Counsel that no rape on the prosecutrix was committed either at the house of accused Tilak Nagar or at any other house by any of the accused. So many persons including tenants were residing in the house of accused Tilak Nagar and it was not feasible to commit rape on the prosecutrix in such a place.
15. In support of his argument, Ld. Defence Counsel relied on a case Tameezuddin @ Tammu v. State of (NCT of) Delhi, 2009 (4) C.C. Cases (SC) 282, wherein the Apex Court observed that:
"6. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.*** As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in Court as witnesses though their statement had been recorded during the course of the investigation. In this SC No.55/13 State vs. Deepak & Others Page 8 of 43 background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co- related to the appellant as his blood samples had not been taken." [Emphasis supplied]
16. It has also been argued by Ld. Defence Counsel that sole testimony of the prosecutrix does not inspire confidence as it has not been corroborated by other evidence and it suffers from various infirmities and doubts.
17. In support of his argument, Ld. defence counsel relied on a case Rajoo & Ors. v. State of M.P., AIR 2009 SC 858 wherein the Apex court observed that:
"9. ***This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
[Emphasis supplied]
18. Ld. defence counsel further relied on a case State v. Vicky & Ors., 2012 [2] JCC 1147 wherein the Apex court observed that:
"12. This witness was also declared hostile by learned APP as he was partially resiling from his earlier statement recorded under Sec. 161 Cr. P.C. During the cross-SC No.55/13 State vs. Deepak & Others Page 9 of 43
examination by the learned APP, he admitted that police had recorded statement and therein he had stated that they had gone in search of accused persons in the village with the police."
"20. ***It is further recorded that there is no medical evidence on record to prove that the prosecutrix was subjected to sexual assault. Even as per the FSL report, respondent/accused Mahender with the offence of rape. I have also perused the FSL report and found that report do not connect the accused with the alleged rape. Therefore, on this aspect, the opinion recorded by the trial court is correct." [Emphasis supplied]
19. Ld. defence counsel further relied on a case Shanti Vs. State, 1991 JCC 398 wherein the Apex court observed that:
"7. In her statement under Section 161 of the Code of Criminal Procedure recorded by S.I. Kishan Singh IO she had, inter alia, stated that Nazma had earlier informed her about having taken Rs.200/- from Shanti in her (Shashi's) name and on enquiry she was informed by Nazma that the reason of taking the money in her name would be disclosed subsequently. She has further stated that on 15th September, 1987 she was left at the school gate by her brother where Sangeeta met and told that she was invited by Nazma. She proceeded towards the house of Nazma who met her near the school. She has also stated that she was taken by Shanti where she and Nazma were served with bananas. She has also claimed that thereafter banana after cutting it was given to her on account of which she was not conscious and subsequently she found herself in front of a jhuggi in a scooter when she was taken inside that jhuggi and thereafter she was taken to Srinivas Puri. It was further stated by her that Rajinder, and Sripal also came and that after giving her breakfast she started feeling giddiness and became unconscious and on regaining consciousness she found herself to be in a train in the company of Shanti, Rajinder and Sripal who took her SC No.55/13 State vs. Deepak & Others Page 10 of 43 to a house in Agra and from there they took her to Village Naw Goan. She went on to state that she asked them to take her back to her house upon which Shanti and Rajinder told her as to what she would do by going back to the house of her parents and that they would get her married to some good family and that on account of a quarrel between Rajinder and Sripal, Rajinder was given beatings by Sripal on account of which the matter was reported to the police and they were recovered."
20. It has been argued on behalf of Ld. Defence Counsel that the alleged unknown house where rape was allegedly committed in the night was not located by the IO. Neither he took the prosecutrix nor did the prosecutrix point out said unknown house to the IO particularly when prosecutrix was aware of that house. This creates doubt in the prosecution case.
21. In support of his argument, Ld. defence counsel relied on a case Krishan Kumar Malik v. State of Haryana, 2011 [4] JCC 2414 wherein the Apex court observed that:
"22. During the course of investigation, the prosecution was taken to the area, to point out the Kothi, where she was said to have been subjected to rape, but she failed to identify the said kothi. It may be recalled that she was alleged to have been abducted during broad day light, thus her failure to identify the kothi, fully belies her case".
"36. Admittedly, she had met her mother Narayani and sister soon after the occurrence, thus, they could have been the best res gestae witnesses, still the prosecution did not think it proper to get their statements recorded. This shows the negligent and casual manner in which prosecution had conducted the investigation then the trial.SC No.55/13 State vs. Deepak & Others Page 11 of 43
This lacunae has not been explained by the prosecution. The prosecution has not tried to complete this missing link so as to prove it, beyond shadow of doubt, that it was Appellant who had committed the said offences".
"40 The Appellant was also examined by the doctor, who had found him capable of performing sexual intercourse. In the undergarments of the prosecution, male semen were found but these were not sent for analysis in the forensic laboratories which could have conclusively proved, beyond any shadow of doubt with regard to the commission of offence by the Appellant. This lacuna on the part of the prosecution proves to be fatal and goes in favour of the Appellant." [Emphasis supplied]
22. It has also been argued by Ld. Defence Counsel that prosecutrix was missing since 11.11.2009 but her parents did not lodge any missing report. The prosecutrix returned to her house in the evening of 13.11.2009 but she was not taken to police station immediately and she was taken to police station next day i.e. 14.11.2013 in the noon. No explanation has been given for non reporting the matter to the police and this, inordinate delay in lodging the FIR, has created doubt about the truthfulness of the prosecution case.
23. In support of his argument, Ld. Defence Counsel relied on a case State v. Munazir Alam @ Munna, 2012 [1] JCC 672 wherein the Delhi High Court observed that:
"7. ***Late reporting of the incident and lack of corroboration, the failure of the police to record the version of the relevant witnesses at the material time within the SC No.55/13 State vs. Deepak & Others Page 12 of 43 proximity of the incident are fatal to the case."
24. Ld. Defence Counsel further relied on a case, Ram Saran & Anr. v. State NCT of Delhi, 2012 [1] JCC 688 wherein the Delhi High Court observed that:
"24. It is interesting to note the fact that incident took place on the Diwali day, a festival most celebrated in north India, even if an alarm raised by the prosecutrix was submerged beneath the noise of the fire crackers, it is highly impossible that there will be no public witness. In the FIR she has categorically named two persons who have committed rape on her, where as she states the presence of 2-3 persons, which creates a doubt in the prosecution version and same lay the foundation of doubt, the benefit of which must be given to the appellants and not otherwise. No external injury marks observed by the doctor concerned who prepared the MLC of prosecutrix, also there is delay of nine days in reporting the matter to police by prosecutrix, has made the case of the prosecutrix weak.***" [Emphasis supplied]
25. In a case Thulia Kali vs. The State of Tamil Nadu, AIR 1973 SC 501, it was held by Apex Court 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 can 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. The names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment SC No.55/13 State vs. Deepak & Others Page 13 of 43 which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version. Exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in lodging of the first information report should be satisfactorily explained."
[Emphasis supplied]
26. In a case Babu Lal and another v. State of Rajasthan, 2001 Cri.L.J.2282, Rajasthan High Court observed that:
"28. No doubt delay in lodging the FIR in sexual assault cannot normally damage version of the prosecutrix, as held by the Hon'ble Supreme Court in various judgments, but where husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case."
27. Ld. Defence Counsel further argued that mother of the prosecutrix to whom the prosecutrix told about the allegations first time was not cited as a witness and this has created doubt in the truthfulness of the prosecution case.
28. In support of his arguments, he relied on a case, Dilip & Anr. v. State of M.P., 2001 (4) Crimes 105 (SC) wherein the Apex Court observed that:
"10. PW3, the maternal aunt of the prosecutrix does support the prosecutrix to the extent that soon after the incident the prosecutrix had complained her of having been ravished by the two accused appellants. However she SC No.55/13 State vs. Deepak & Others Page 14 of 43 stated that at that time the prosecutrix was wearing the underwear. The underwear was seen by her but she did not find any blood stains thereon although a few white stains were there. The frock of the prosecutrix also did not have any stains. The accused persons had gagged the mouth of the prosecutrix by inserting some cloth therein and this fact though told to her by the prosecutrix was not stated by her during her statement recorded by the police. According to her the prosecutrix had told her that the accused persons had made the prosecutrix lie on a cot whilst ravishing her." [Emphasis supplied]
29. It has also been argued by Ld. Defence Counsel that in the earlier statement made to police, the prosecutrix did not tell anything about administering obnoxious intoxicating substance but later on she changed her testimony and stated that she was administered some intoxicant and that improvement have created doubt about the truthfulness of her testimony.
30. In support of his arguments, he relied on a case, Mohd. Tarikh @ Ruffi v. State, 2011 [3] JCC 1562 wherein the Delhi High Court observed that:
"12. We eschew reference to 'N's cross examination with respect to her statement recorded by the police where she had not uttered a word about she being forced to consume alcohol or being enticed with a sweet but we note that on being cross examined she stated that when she was being raped she cried but her voice was muffled by, the accused by putting his hand on her mouth. She stated that she told the aforesaid incident to her father and then to the police. She denied being tutored."SC No.55/13 State vs. Deepak & Others Page 15 of 43
31. Ld. Defence Counsel for accused persons further submitted that testimony of prosecutrix was self contradictory and unreliable. The conviction cannot be based on such a piece of evidence. He submitted that accused persons are entitled for acquittal by getting benefit of doubt.
32. In support of his argument, Ld. Defence Counsel relied on a case, Suresh N. Bhusare & Ors. v. State of Maharashtra, [1998 DLS 256 SC] wherein the Apex Court observed that:
"5. It is proved that in her police statement, P.W. 3 had stated that Vishnu was following while she was going to the shop of appellant No.1 and had not referred to Shankar
- P.W. 4 at all. She changed her version in the court and stated Vishnu had not followed her. She also stated that Shankar, her brother in law, met her on the way. He was sitting on his bullock card and had asked her as to where she was going. She had replied by saying that she was taking food for her husband who had gone to the field. She further stated that after about ten minutes, he had come to the shop of appellant No.1 to purchase tobacco and finding the door close had kicked the door and shouted in the name of appellant No.1 to open the door. He then forcibly took her out and kicked her and told her to go home. She had not disclosed anything to him at that time."
33. Ld. Defence Counsel further relied on a case, Kochu Maitheen Kannu Salim v. State of Kerala, 1998 (2) C.C. Cases (SC) 265 wherein the Apex Court observed that:
"5. We find considerable substance in the contentions SC No.55/13 State vs. Deepak & Others Page 16 of 43 raised by Mr. Lalit. It is difficult to appreciate how the High Court could consider FIR Ex. P. as correct when P.W.1 himself stated that certain statements contained in it are not correct and PW himself has not been believed. It is really doubtful whether the FIR was recorded at 9.45 p.m. on 1.12.85 as stated therein. The evidence discloses that the investigation in this case had started after 3.00 p.m. on 2.12.85. If really the FIR was recorded at 9:45 p.m. then the investigation would have started much earlier and statement of PW.2 who was stated to be the eye witness would have been recorded much earlier. The statement of PW.2 was recorded after 3.00 p.m. on 2.12.85. The High Court has not considered this aspect."
34. It has also been argued by Ld. Defence Counsel that testimony of the prosecutrix did not find support by the medical evidence.
35. In support of his arguments he relied on a case State v. Anwar Hussain, 2012 [2], JCC 874 wherein the Delhi High Court observed that:
"20. ***In the MLC, no bruises were seen locally on valva; the vagina was found red-inflamed. In the cross examination, the doctor admitted that in case of improportionate male and female organ, if force is applied, the laceration of hymen; abrasions, bruises or laceration on the private parts of the female would be there. In the present case, no injury was found in the vagina of the prosecutrix. There can be number of reasons for red- inflamed vagina. The doctor could not give definite medical opinion as to the act of intercourse. Contrary, it was mentioned that the hymen of the prosecutrix was found ruptured but healed (wide open). In the cross-examination, she admitted that healing of vagina takes normally five to six days. The prosecution failed to explain how and under SC No.55/13 State vs. Deepak & Others Page 17 of 43 what circumstances hymen of the child ruptured about five or six days before the incident. No complaint for that incident was lodged any time." [Emphasis supplied]
36. Ld. Defence Counsel emphasized on the points that accused Baba who was not arrested was residing very near to the house of prosecutrix, as stated by the prosecutrix and confirmed by father even then he was not arrested. This has also created doubt in the truthfulness of the prosecution case.
37. It has also been argued by the Ld Defence Counsel that a false concocted story has been put forward that accused persons committed rape on the prosecutrix. In fact accused persons have been falsely implicated by the father of the prosecutrix to extort money from them. Co-accused Tilak Nagar might have paid some money to him so the prosecutrix did not incriminate accused Tilak Nagar in the present case.
38. On the other hand, it has been argued by Ld. Additional Public Prosecutor for the State that prosecution witnesses have proved case of the prosecution beyond the reasonable suspicion and shadow of doubt and accused is liable to be convicted. She also relied on a case, State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held by Delhi SC No.55/13 State vs. Deepak & Others Page 18 of 43 High Court that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." [Emphasis supplied]
39. In order to prove its case that accused SC No.55/13 State vs. Deepak & Others Page 19 of 43 committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was abducted by the accused, i.e., accused either by force compelled or by any deceitful means induced the prosecutrix to go from her place and secondly, the prosecutrix was abducted with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
40. In order to prove its case that accused persons committed an offence of gang rape, punishable u/s 376 (2)
(g) IPC, the prosecution has to prove firstly that either both or any of accused persons in furtherance of their common intention committed sexual intercourse with the prosecutrix and secondly, sexual intercourse was committed against will of the prosecutrix.
41. In a case Ashok Narang v. State, 2012 II AD (Delhi) 481, the case of the prosecution was that the accused along with the co-accused (since declared a proclaimed offender) had in furtherance of a common intention kidnapped the victim from the lawful SC No.55/13 State vs. Deepak & Others Page 20 of 43 guardianship of her parents. They then wrongfully confined the victim in a shop where they committed rape upon her.
The accused was charged with the offences punishable under Sections 363/342/376 read with Section 34 of IPC. The Court convicted the Appellant based on the testimony of the victim. In appeal the Delhi High Court held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence. In other words, the prosecution was required to prove its case beyond reasonable doubt against the accused in a criminal case and not merely dwell upon the shortcomings of the defence. The human semen and blood group found in the semen was not established to be of the accused. Also the prosecutrix was found to have given contradictory statements at different stages of the investigation and trial. There was a long distance between the phrase "may be true" and "must be true". It was difficult to rely on the SC No.55/13 State vs. Deepak & Others Page 21 of 43 sole testimony of the victim of sexual assault to convict the Accused. The appeal was allowed.
Rape by three or four accused
42. After considering the arguments of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution and defence evidence on record, in the light of the principles of law laid down in above referred cases, I come to the conclusion that testimony of the prosecutrix has contradictions, inconsistencies and improvements. For example, Prosecutrix PW-3 in her statement EX.PW3/A made to the police under section 161 of the Code, inter alia, stated that on 11.11.2009 at about 12 p.m. accused Deepak met her and took her to a house where a boy named Tilak was present there. Accused Deepak sent Tilak out of the house and told her that he would marry her only if she would obey him. Thereafter, he committed sexual intercourse with her without her consent. Accused terrorized her. Due to fear she could not raise alarm. After 10-15 minutes accused Tilak and two other boys, namely Happy and Baba came there and these three Happy, Baba and Tilak Nagar raped her turn by turn. Her condition was deteriorated. In the night all the four accused persons took her on motorcycle to an unknown place. On one motorcycle SC No.55/13 State vs. Deepak & Others Page 22 of 43 Deepak and Baba and another motorcycle Tilak and Happy were there. On arrival at that place all the four accused persons again, turn by turn, committed rape on her. Thereafter, she became unconscious.
43. The prosecutrix as PW3 deposed that on 11.11.2010 accused Deepak, who was residing in her neighbourhood alongwith his family, met her outside the lane at about 12 noon. He asked her to accompany him whereupon she replied that she could accompany him provided he marries her. Thereafter, accused Deepak took her to the house of accused Tilak Nagar. He sent accused Tilak Nagar out of his house and told her that he would marry her only if she obeys his commands. Thereafter, Deepak committed sexual intercourse with her against her consent. She could not raise alarm as she was threatened by him. After 10-15 minutes, accused Happy and Baba also came there. They also committed rape on her forcibly. Her condition was deteriorated and she was likely to faint. Thereafter, accused Happy, Deepak and Baba took her from there to a house at unknown place on motorcycles. She and Deepak were on one motorcycle while accused Happy and Baba were on another motorcycle. After reaching at the said house, accused persons Deepak, Happy and Baba committed rape on her during night time SC No.55/13 State vs. Deepak & Others Page 23 of 43 and thereafter, she became unconscious. She regained consciousness at about 5 p.m. on 13.11.2009. When she regained consciousness accused Baba was found present there. Accused Baba brought her to main road and then she came to know that it was the area of Shahdara. He got her boarded a RTV bus for Karawal Nagar and threatened her that in case she disclosed the incident to anyone, her entire family would be eliminated. She arrived at Karawal Nagar at about 7 p.m. and reached at her house. She disclosed the entire facts to her parents.
44. Thus, the prosecutrix, when she deposed in the court as PW-3, failed to mention the name of accused Tilak Nagar. She was declared hostile on this point and in cross examination conducted by Ld. Addl. Public Prosecutor she denied the suggestion that accused Tilak Nagar also came there and also committed rape on her. She denied the suggestion that accused Tilak Nagar was also present with accused Happy and Baba. She also denied the suggestion that accused Tilak Nagar also took her on his own motorcycle to unknown place and he also committed rape on her on reaching there. Thus, testimony of prosecutrix is contradictory on the point of commission of rape on the prosecutrix by accused Tilak Nagar.
SC No.55/13 State vs. Deepak & Others Page 24 of 43Role of accused Tilak Nagar
45. On the aspect of role of accused Tilak Nagar, the prosecutrix in Ex.PW3/A stated that accused Deepak took her to a house where a boy was present and accused Deepak sent him out of the house. The name of that boy was Tilak. On sunset all the four accused carried her from that house. On one motorcycle accused Deepak and Baba were with her and on the another motorcycle accused Tilak and Happy and all of them took her to an unknown house. In the court prosecutrix stated that accused Deepak took her to the house of accused Tilak Nagar. He sent accused Tilak Nagar out of the house. Accused Happy, Deepak and Baba took her from there to a house at an unknown place on motorcycles. She and Deepak were on one motorcycle while accused Happy and Baba were on another motorcycle. Thus there is contradiction about the role and presence of accused Tilak Nagar at alleged unknown house and also by use of motorcycle.
Time of leaving of house of Tilak Nagar
46. There is also inconsistency with regard to the time of leaving the alleged house of accused Tilak Nagar for an unknown house. In Ex.PW3/A, the prosecutrix stated that on getting sunset all the four accused carried her from the house of accused Tilak Nagar to alleged unknown SC No.55/13 State vs. Deepak & Others Page 25 of 43 house. In the court she stated that after committing rape on her by accused Deepak, Happy and Baba they took her to a unknown house. In cross examination she stated that they reached at the said house at about 3 p.m. Thus, there is inconsistency regarding time of leaving and arriving from the alleged house of Tilak Nagar to the alleged unknown house.
Contradiction in oral testimony and MLC
47. There are also inconsistencies in the oral testimony of the prosecutrix and documentary evidence. For example, statement Ex.PW3/A of the prosecutrix made to the police is silent about sustaining of any injuries on her body. As PW3, in cross examination conducted by Ld. Defence Counsel for accused Tilak Nagar and Deepak, the prosecutrix stated that she sustained injuries on her back and hand. In MLC Ex.PW2/A, it has been mentioned that there was no sign of external injury on the body of the prosecutrix. PW2 also confirmed these observations in her statement.
48. There are also inconsistencies regarding informing the name of the assailants/accused persons, to the doctor at the time of preparation of MLC Ex.PW2/A. As PW3, the prosecutrix stated that she told name of the accused persons to the doctor. In the MLC Ex.PW2/A names SC No.55/13 State vs. Deepak & Others Page 26 of 43 of assailants are not there. In the MLC Ex.PW2/A and in the statement, PW2 stated that menstrual cycles were regular and LMP (last month mensuration) was on 03.11.2009. PW3 deposed that LMP was 10.11.2009.
Passing of information about the incident
49. There is also inconsistency on the fact of passing on information by the prosecutrix to her family members. In Ex.PW3/A, the prosecutrix stated that on arrival of her house she disclosed all the material facts to her parents. In the court in her examination in chief PW3 reiterated the same facts but in cross examination she stated that first of all she told about the incident to her sisters and her mother just after five minutes of reaching her house on 13.11.2009 at about 8:20 p.m. Her sisters and mother told about the incident to her father.
Administration of intoxicant to the prosecutrix
50. There is also improvement on the point of administering of some intoxicant to the prosecutrix. Ex.PW3/A is silent about administering of any intoxicant to her before or after committing sexual intercourse with her by the accused persons. Her examination in chief is also silent on this aspect. During cross examination conducted by Ld. Defence Counsel for accused Tilak Nagar and SC No.55/13 State vs. Deepak & Others Page 27 of 43 Deepak, she stated that she could not resist the attempt of rape on her by the accused persons as accused persons had administered her some intoxicant and she was under
the influence of said intoxicant on 13.11.2009 upto 7 p.m. It would be pertinent to mention here that in Ex.PW3/A, she stated that she did not make noise as she was under fear as accused persons had terrorized her.
Presence of accused persons at unknown house
51. There are also inconsistencies about the presence of the accused persons at the alleged unknown house. The prosecutrix in Ex.PW3/A stated that all the four accused persons took her to unknown house and all of them stayed there and committed rape on her one by one. In the court as PW3 she deposed that only three accused persons arrived at said unknown house. In cross examination conducted by Ld. Additional Public Prosecutor she specifically denied a suggestion that after reaching at said unknown place, accused Tilak Nagar committed rape upon her besides other two persons. In cross examination conducted by Ld. Defence Counsel, she stated that she did not know if accused Deepak, Baba and Happy were outside the said house or not. Subsequently she stated that accused persons did not sleep on 11.11.2009 and 12.11.2009. Once she stated that she did not know as to SC No.55/13 State vs. Deepak & Others Page 28 of 43 who unbolted the door of that house from outside. She admitted the suggestion that none of the accused persons was present inside the room when it was bolted from outside.
52. In view of the inconsistencies, contractions and improvements on record in the testimonies of prosecution witnesses and particularly discussed here in above, I am of the view that these inconsistencies, contractions and improvements have shaken the very root of the prosecution case and have created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
53. My decision on this aspect finds support by the principles of law laid down in case of Labh Singh v. State of M.P., IX-1986(3) Crimes 176, wherein the accused was acquitted for the offence punishable u/s 376 IPC on the ground that there were material contradictions in the prosecution case which were causing doubt on the prosecution story.
54. My decision on this aspect finds support by the principles of law laid down in case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court SC No.55/13 State vs. Deepak & Others Page 29 of 43 observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
55. On analyzing and scrutinizing the evidence and considering the arguments of Ld. Additional Public Prosecutor and Ld. Defence Counsel, I come to the conclusion that prosecution has failed to prove its case against accused persons beyond reasonable suspicion and shadow of doubt. The reasons which support my decision are firstly, that there are material contractions, inconsistencies and improvements, as discussed here in above in the prosecution case. The arguments of Ld. Defence Counsel as mentioned in case of paragraph No.16 above, are convincing on this aspect.
SC No.55/13 State vs. Deepak & Others Page 30 of 4356. Secondly, the testimony of prosecutrix has not been supported by medical and scientific evidence. Prosecutrix, PW3 in her cross examination stated that she did not give her clothes which she was wearing on 11.11.2009 to 13.11.2009 to the police. PW2, a doctor who medically examined the prosecutrix, deposed that on 15.11.2009, patient -----X---- aged 16 years, female was brought by Ct. Gargi with the history of kidnapping by men on 11.11.2009 at 12 noon and she was raped by four persons for three days. She, inter alia, on local examination found that there was no sign of external injury. Hymen was torn, not intact. In cross examination, she replied that at the time of examination, there was no bleeding par vagina. Therefore, the hymen torn was not fresh. She also stated that hymen torn may turn even without sexual intercourse in some cases. She further deposed that patient had changed all her clothes including under garments and cloth samples could not be collected. FSL reports dated 13/10/2010 Ex.C-1 and Ex.C-2 were not disputed by Ld. Defence Counsels. On perusal thereof, I find that human semen was detected on exhibits "la" and "lb", "4", "5" i.e. two micro-slides having faint smear described to be of victim, cotton wool swab on a stick described as vaginal swab of victim, and one underwear described to be of SC No.55/13 State vs. Deepak & Others Page 31 of 43 accused Tilak Nagar. It has been mentioned in Ex.C-2 that report on vaginal swab was inconclusive. The prosecutrix in statement admitted that she did not give her clothes which she was wearing from 11.11.2009 to 13.11.2009 to police. Thus, the evidence on record has established that there is no corroboration of the testimony of prosecutrix by scientific evidence. The arguments of Ld. Defence Counsel as mentioned in paragraph No.34, above are convincing on this aspect. The principles of law laid down in case, State v. Anwar Hussain, (supra), also support this decision.
57. My decision in this regard also finds support by principles of law laid down in case Sanya alias Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784, wherein it was observed by Orissa High Court that:
"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no independent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical SC No.55/13 State vs. Deepak & Others Page 32 of 43 evidence is also absent with regard to the opinion as to the fact of rape. For the reasons above the conviction is liable to be set aside."
[Emphasis supplied]
58. My decision in this regard also finds support by principles of law laid down in case Lachhman and another v. State, 1973 CRI. L.J. 1658, wherein the Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged o have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused it would be most dangerous to base a conviction on her uncorroborated testimony alone." [Emphasis supplied]
59. Thirdly, there is unreasonable, unexplained delay in reporting the matter to police. PW-1, father of the SC No.55/13 State vs. Deepak & Others Page 33 of 43 prosecutrix on this aspect deposed that in the year 2009 he received a telephone call from her daughter Chandni and she told him that the prosecutrix had gone outside the house and she did not return back. He left her work for looking his daughter but her daughter could not be searched. On the same day at about 12 midnight or 1 a.m. he along with his friend went to PS Karawal Nagar and gave a complaint in writing regarding missing of his daughter. In cross examination he admitted that copy of missing report was given to him by the police. He stated that when her daughter was recovered and he went to PS the police officer took back the copy of said missing report. He did not know the DD number of his report. He further stated that he took his daughter to PS at about 11 am or 11:30 a.m. On perusal of Ex.PW3/A and Ex.PW6/A, I find that statement of prosecutrix was recorded on 14.11.2009 and FIR was registered on the same day. Thus there is no evidence on record that father of the prosecutrix lodged missing report regarding missing of the prosecutrix on 11.11.2009. Instead of taking the prosecutrix to the PS immediately on her arrival at home on coming to know about the incident within five months from the time of her arrival, the father of the prosecutrix took her to the PS for reporting the matter on the next day around noon. This creates doubt about the truthfulness of the prosecution SC No.55/13 State vs. Deepak & Others Page 34 of 43 case. The arguments of Ld. Defence Counsel as mentioned in paragraph No.22, above are convincing on this aspect. The principles of law laid down in case, State v. Munazir Alam @ Munna, (supra), Ram Saran & Anr. v. State NCT of Delhi, (supra), Thulia Kali vs. The State of Tamil Nadu, (supra), and Babu Lal and another v. State of Rajasthan, (supra), also support this decision.
60. My decision in this regard finds support by principles of law laid down in case Jagdish v. State, (Delhi), 1987(1) R.C.R.(Criminal) 613 : 1987(1) AICLR 465, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543,***
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to.
10. The delay of two days in the lodging of the F.I.R. in the case in hand has not been explained at all much less satisfactorily by the prosecution and it was not job of the defence to have put questions to the injured in her cross- examination to elicit the reasons for that delay. On account of this delay the causing of self-inflicted injuries on her person, in consultation with her father, cannot be ruled out SC No.55/13 State vs. Deepak & Others Page 35 of 43 as the motive for the same was very much there as already pointed out above."
61. Fourthly, in a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031 the Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
62. In a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-
(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male SC No.55/13 State vs. Deepak & Others Page 36 of 43 for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account. (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self- importance in the context of her inferiority complex. (6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others. (8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
63. The principles of law laid down in Pardeep @ Sonu v. State, (supra), and Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), (supra), instead of providing benefit to the prosecution, provides benefit to accused persons as the testimony of the prosecutrix has not been found wholly reliable, consistent and trustworthy. The standard of proof required in proving the case against accused persons, as laid down in case of Ashok Narang v.
SC No.55/13 State vs. Deepak & Others Page 37 of 43State, (supra), could not be meet out by the prosecution.
64. Fifthly, the prosecutrix in her statement as PW3 deposed that she was taken from the house of accused Tilak Nagar on the motorcycle. In cross examination she stated that she did not know house number of accused Tilak Nagar, the family members who were residing there, the number of tenants who were occupying portions of his house or if the said house was constructed in a plot of 50 yards or 500 yards. There were residential house near as well as in front of that house. DW1 deposed that Ratan Singh Nagar was the owner of said house. He was having eight children. This house consists of four rooms. Three rooms were in occupation of tenants who were residing with their respective families. PW4 also corroborated the statement of DW1 and inter alia, stated that she alongwith her children and tenants were residing in that house. There is no witness of taking away the prosecutrix from said house to alleged unknown house inspite of the fact that several persons were available there. This further creates doubt about the truthfulness of prosecution case.
65. Sixthly, the prosecutrix in her examination in chief stated that she was taken to a room at unknown place by the accused persons. She also stated that she SC No.55/13 State vs. Deepak & Others Page 38 of 43 regained consciousness at about 5 p.m. on 13.11.2009 and accused Baba was present there and he brought her to main road where she came to know that it was the area of Shahdara. She boarded a RTV Bus from there for Karawal Nagar. In cross examination, she stated that she did not know the number of house, gali number and the name of owner of that house where she was taken. However, she admitted that it was a residential area and there were residential houses adjacent to said house. She did not take the police officials to the said house. Non identification of that unknown house also creates doubt about the truthfulness of the prosecution case. The arguments of Ld. Defence Counsel as discussed in paragraph No.20 above seem to be convincing.
66. Seventhly, as per testimony of the prosecutrix PW3, two motorcycle were allegedly used by accused in taking her from the house of accused Tilak Nagar to unknown house. Neither of the motorcycle could be recovered by the investigating officer. This also creates doubt in the truthfulness of the prosecution case.
67. Eighthly, it is admitted case of the prosecution that co-accused Baba could not be arrested. PW3 in cross examination stated that shop of Baba was situated near SC No.55/13 State vs. Deepak & Others Page 39 of 43 the house of accused Deepak. Accused Baba was known to her prior to the incident. The investigating officer neither made any effort to arrest him nor did he take any steps to declare him proclaimed offender. This also creates doubt in the truthfulness of the prosecution case. The arguments of Ld. Defence Counsel as discussed in paragraph No.36 above seem to me convincing.
68. Ninethly, the prosecutrix admitted that she was in love with accused Deepak. She wanted to marry him. Their marriage could not be solemnized. In cross examination the prosecutrix stated that accused Deepak was known to her for the last about 10 months on the date of occurrence as he was her neighbour and they used to talk with each other and accused used to say her that he would marry her. She also wanted to marry with accused Deepak. Family members of accused Deepak were also known to her. She had also consented for her marriage with Deepak. DW2 also deposed that father of the prosecutrix came to him for the purpose of marriage of his daughter the prosecutrix but he declined the proposal on the ground that he did not belong to the same status. This also creates doubt about the truthfulness of the prosecution case as non solemnization of the marriage of the prosecutrix with accused Deepak may be a motive for SC No.55/13 State vs. Deepak & Others Page 40 of 43 reporting of present case against the accused.
69. Tenthly, my attention goes to a case Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
70. Eleventhly, the accused has succeeded in creating doubt in prosecution case so he is entitled to get benefit of doubt.
71. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."SC No.55/13 State vs. Deepak & Others Page 41 of 43
72. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
73. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that accused persons namely Deepak, Sunil Jaiswal @ Happy and Tilak Nagar either committed offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366/34 IPC or committed an offence of gang rape on the prosecutrix punishable u/s 376(2)(g) IPC. Consequently, by giving benefit of doubt to the accused persons, they are acquitted for the offences punishable u/s 366/34 and 376(2)(g) IPC.
74. However, accused persons are directed to furnish their personal bond within a week for a sum of Rs. 10,000/- with one surety of like amount as per provisions SC No.55/13 State vs. Deepak & Others Page 42 of 43 of Section 437A of the Code for a period of six months.
75. Accused Deepak and Sunil Jaiswal @ Happy are in J.C. They be released forthwith if not required in any other case.
76. The other accused in this case is Baba. The Investigating Officer has not taken appropriate steps for arrest of the accused or for declaring him as a Proclaimed Offender. A copy of this judgment be sent to DCP, North East District for taking appropriate action in the matter as per law.
77. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the Open Court
Dated:25.04.2013 (DR. T.R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
SC No.55/13 State vs. Deepak & Others Page 43 of 43