Delhi District Court
State vs . Udayraj on 15 January, 2018
IN THE COURT OF MS. ANU GROVER BALIGA
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No. 9130/2016
FIR No. 390/15
PS Delhi Cantt
U/s. 376/509/511 IPC
State Vs. Udayraj
S/o Sh. Ramphool
R/o H.No. 8/235, Mahraim Nagar
Delhi Cantt.
Delhi.
Also:
R/o Village Ailanpur Khantwa
PS and PO Mankapur, Distt. Gonda
U.P.
Date of Institution - 21.09.2015
Date of Committal - 27.11.2015
Arguments heard/Order reserved - 08.01.2018
Date of judgment - 15.01.2018
Final order - Acquitted
JUDGEMENT
1. The accused has faced trial in the present case for having committed the offences punishable under sections 509 and 376 read with section 511 of Indian Penal Code (hereinafter referred to as 'IPC').
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2. Briefly stated the facts relevant and leading to the filing of the present chargesheet are as follows:
(a) On 25.07.2015 at about 2:52 a.m., telephonic information through Control Room, South District was received at PS Delhi Cantt. that a man had called from mobile no. 9718426230 and had complained that one person had attempted to rape his wife at H. No. 8/235, Mehraum Nagar, Delhi Cantt.
(b) DD No. 7B was recorded in this respect and SI G R Meena and Ct.
Rajpal were deputed to attend to the call and on reaching the spot they called SI Anita Kumari to join in the investigation and she also thereafter immediately reached the spot.
(c) The prosecutrix then gave her statement to the police officials wherein she inter alia narrated the following material facts:
(i) That she has been residing alongwith her husband and three children at tenanted premises at H. No. 8/235, East Mehraum Nagar, Delhi Cantt.
for the last two years and her husband is in the business of cargo.
(ii) That 45 boys also reside in two other tenanted rooms on the same floor on which the tenanted premises of the prosecutrix are situated and that these boys had been passing lewd comments against the prosecutrix for some time and has also been playing loud music and further that the names of two of the said boys were Ajay and Uday (the accused in the present SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 2 of 16 case).
(iii) That on the intervening night of 24/2507.2015 at about 2:30 am, the younger son of the prosecutrix had started crying and hearing his cries, the husband of the prosecutrix had woken her up and that she after a while had gone to relieve herself in the toilet, which was situated near the tenanted room of the accused Uday.
(iv) That while she was coming back from the toilet, the accused Uday had pressed her mouth, dragged her into his room, pinned her down on his bed and had after lifting her upper clothes, started pressing her breasts and started kissing and biting her lips.
(v) That the prosecutrix in order to save herself requested the accused that he should allow her to go back as her son was crying and that accused agreed to do so provided she comes back and the prosecutrix in order to get out of the clutches of the accused agreed to come back but after coming back from the room of the accused she immediately informed her husband about the incident who then made a call at 100 number.
3. Pursuant to the filing of the aforesaid complaint, the present FIR was registered, the prosecutrix was got medically examined and her statement under section 164 CrPC was got recorded by Ld MM.
4. On the basis of the complaint made by the prosecutrix, the accused SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 3 of 16 was arrested and after investigation, the present chargesheet was filed.
Charge:
5. On the basis of the material available on record, Ld. Predecessor of this Court had framed charges against the accused for having committed the offences punishable under sections 509 and 376 read with section 511 of IPC.
Evidence:
6. In support of its case, the prosecution has examined seven witnesses in all. PW1 is the doctor, who had medically examined the prosecutrix, PW2 is the prosecutrix herself, PW3 is the husband of the prosecutrix and PW7 W/SI Anita Kumari is the main investigating officer and PW4, PW5 and PW6 are the police officials who had assisted the IO in the investigation of this case.
7. The prosecutrix in her deposition has reiterated the allegations made by her in her original complaint and therefore for the sake of brevity, the same is not being spelt out in detail herein and will be referred to in the later part of this judgment, as and where necessary. The husband of the prosecutrix PW3 Sanjay Soni has interalia deposed that the accused and the other 34 boys staying on the same floor as he was, often used to play SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 4 of 16 loud music and used to pass lewd comments for his wife and that he had made a complaint of this fact to his landlord. He has also deposed that on the night of the incident at about 2:303:00 a.m. he had woken up his wife as his younger child was weeping at that time and his wife had gone to the toilet nearby and on her return, had told him about the accused having attempted to rape her.
8. The IO of this case PW7 W/SI Anita Kumari has described in detail the recording of statement of the prosecutrix, taking her for medical examination, arresting the accused, getting his medical examination conducted and preparing the site plan.
Statement of accused:
9. The deposition of all the aforementioned witnesses and the documents proved by them were put to the accused under Section 313 Cr.P.C. and his statement was recorded. (It is also relevant to mention that apart from the documents exhibited during evidence, the accused during admission/denial of documents had also admitted his own potency test report and proceedings recorded under section 164 Cr.P.C.) In his statement tendered under section 313 Cr.P.C. the accused has interalia taken a stand that the prosecutrix and her husband have falsely implicated him as he alongwith his roommates used to listen to music in the evening to relax themselves and this was not tolerated by the prosecutrix and her husband and they had even complained to the landlord. According to the SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 5 of 16 accused, pursuant to the said complaint, he and the boys had lowered down the volume of the music played by them but that the prosecutrix and her husband still used to argue with them. He has further narrated that at least 20 days prior to this complaint, the son of the prosecutrix has come to his room and in his absence had taken away his mobile phone and one of his roommates had seen him doing so and therefore the accused had gone to the room of the prosecutrix and had asked for his mobile. The accused has further narrated that though initially the prosecutrix had refused to believe that her child would do such a thing, his mobile was eventually found from her room only and he had rebuked the prosecutrix that she should take care of her son and not allow him to go to their room and pick up things. This according to the accused had angered the prosecutrix and that his why this false case was filed against him.
10. No defence evidence was led by the accused and after the statement of the accused was concluded under section 313 Cr.P.C, final arguments have been advanced on behalf of State by Ld. Addl. P.P for the State Sh. Kamal Akhtar and on behalf of the accused by Ld. Counsel Sh. M.P. Shukla.
Contentions of Prosecution and Defence:
11. On behalf of the State, Ld. PP, Sh. Kamal Akhtar, has mainly contended that the statement of the prosecutrix should be taken as sufficient, for holding the accused guilty for having committed the offences SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 6 of 16 punishable under sections 509 and 376 read with section 511 of IPC.
12. On behalf of the Defence, the contention is two fold. Ld. Defence Counsel has firstly contended that even if for the sake of the arguments, the testimony of the prosecutrix is accepted as a gospel truth, the alleged act of the accused does not amount to the commission of the offence of attempt to rape and it only amounts to the commission of an offence punishable under section 354A (i) of IPC and in support of this contention, he has relied upon the two judgments of the Hon'ble Madhya Pradesh pronounced in Criminal Revision No. 1175/2013 and Criminal Revision No. 1687/2013 in the cases titled as Lav Vs. State of Madhya Pradesh and Digamber Harinkhede and Chhotu Alias Hansial Harinkhede V. State of Madhya Pradesh respectively.
13. The second plank of the contention of the Defence is that the deposition of the prosecutrix cannot be at all accepted as the truth for it is inconsistent with her earlier statements and therefore, is not worthy of reliance. Ld. Defence Counsel has contended that the entire version put forward by the prosecutrix belies logic. His contention is that if the accused had indeed used force to drag the prosecutrix in his room to commit rape upon her, there would have been no reason for him to have let go her off just because she requested him to do so. He has further submitted that the present is a case where the prosecutrix has falsely implicated the accused only because the accused did not accede to the request of the prosecutrix and her husband to stop playing loud music. Ld.Defence SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 7 of 16 Counsel has pointed out that the husband of the prosecutrix has admitted in his crossexamination that he had made a complaint against the accused and his roommates to the landlord about a month prior to the incident and that the landlord had also assured him that he would get the room vacated from the boys. According to the Ld. Defence Counsel, since the landlord did not get the tenanted premises vacated from the accused and his roommates, the prosecutrix and her husband thought of this plan to get the premises vacated by filing a false complaint against the accused. Ld. Defence Counsel has further contended that the accused in his statement under section 313 Cr.P.C has also explained as to why the prosecutrix only chose to falsely implicate him out of the 45 boys who were residing on the same floor. According to the Ld. Defence Counsel, falsity of the case put forward by the prosecutrix is proved by the inconsistencies in her statements. He has pointed out that though in her statement tendered under section 164 Cr.P.C, the prosecutrix had narrated that the accused had only tried to remove her clothes, in her examinationinchief, she has deposed that the accused had removed all her clothes. He has further pointed out that though in her examinationinchief, the prosecutrix has deposed that the accused had thrown her on his bed, she in her crossexamination has admitted that there was no bed in the room of the accused. Ld. Defence Counsel has also contended that the medical evidence is also not in support of the prosecution's case in as much as though the prosecutrix had alleged that the accused had bitten her on her lips, no such injury was observed by the doctor who had medically examined the prosecutrix. Ld. Counsel has also pointed out that though in her complaint filed and in her statement before SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 8 of 16 this court, the prosecutrix has alleged that the accused and his roommates used to comment upon her in filthy language, in her crossexamination on being specifically asked as to what were the comments or the words used, she has conveniently deposed that she does not remember the said words or comments - according to Ld. Counsel it is unimaginable that a lady would forget the comments passed against her in such a short span of time, more so when she has gone ahead and has filed a complaint in this respect. The contention therefore is that the accused cannot be held guilty on the basis of the uncorroborated and unreliable testimony of the prosecutrix.
14. In support of this contention, Ld. Counsel has relied upon a judgment of the Hon'ble Delhi High Court pronounced in a case titled and reported as Raj Kishore Vs. State 2016 (1) LRC 298 wherein the Hon'ble Delhi High Court has held that an accused cannot be convicted where the statement of the prosecutrix suffers from inherent inconsistencies and the medical evidence also does not support her version.
15. In rebuttal, Ld. Addl. PP has contended that present is not a case where the prosecutrix has falsely implicated the accused because he was playing loud music which was not liked by her, but instead present is a case where the accused and his friends initially passed lewd comments against the prosecutrix and played obscene songs and then emboldened by the inaction of the landlord against them, the accused went further and sexually assaulted the prosecutrix. Ld. Addl.PP has submitted that this court must bear in mind that the incident was reported immediately and that there was SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 9 of 16 no delay on the part of the prosecutrix and according to Ld. Addl. PP, there are no inconsistencies between the statements tendered by the prosecutrix during investigation and that during trial. According to the Ld. Addl.PP, the defence is misinterpreting the statements given by the prosecutrix and incorrectly asserting that there are inconsistencies in the same.
16. As regards the contention of the Ld. Defence Counsel that no offence of attempt to rape is made out against the accused, the Ld. Addl. PP has submitted that the alleged offence committed by the accused squarely falls within the definition of rape as provided in section 375 (c) of IPC. He has contended that the acts of the accused in forcibly taking the prosecutrix to his room, pinning her down on his bed, removing her clothes and then lying upon her, all taken together point out that the accused had moved beyond the stage of intention and preparation to commit rape and the acts committed by him constitute an attempt to commit rape upon the prosecutrix. He has further submitted that the judgments being relied upon by the Ld. Defence Counsel are easily distinguishable on facts in as much as in the said judgments the facts were not at all that the prosecutrix was disrobed and thrown on the bed and neither the accused in the said cases had been lying upon the prosecutrix. His submission, therefore, is that in the facts of the present case which the prosecution has proved, the accused is liable to be held guilty for an attempt to commit rape and not merely of the offence punishable under section 354A (i) of IPC. In support of this contention, the Ld. Addl. PP has relied upon the judgment pronounced by the Hon'ble Supreme Court in the case titled and reported as Koppula SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 10 of 16 Venkat Rao Vs. State of A.P. (2004) 3 Supreme Court Cases 602.
Findings and Conclusion:
17. Having considered the submissions made by both the Ld. Addl. PP and the Ld. Defence Counsel and having gone through the entire records of this case and the judicial dicta referred to by both the prosecution and the Defence, this court is of the considered opinion that in view of the circumstances of the present case, which have come to the fore during trial, the accused will have to be granted the benefit of doubt with respect to the charges for which he has faced trial. As regards the charges framed against the accused for having committed the offence punishable under section 509 IPC, in view of the fact that the prosecutrix has not at all deposed as to what words were used by the accused to insult her, in the considered opinion of this court, the accused cannot be held guilty of the said charge. Her deposition that she does not remember the said words makes it very difficult for this court to hold the accused guilty of the offence punishable under section 509 IPC, more so when she does not give any time, date, place, etc when the said words were used by the accused against her.
18. Coming now to the charge framed against the accused for having attempted to rape the prosecutrix, this court does agree with the Ld. Defence Counsel that the version put forward by the prosecutrix in this respect also does not appear to be the complete truth. It does not appeal to commonsense that if at all the accused had used criminal force to drag the SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 11 of 16 prosecutrix into his room and then had wanted to rape her, he had let her go off so easily, as stated by her. It does seem improbable that the accused would wait in the corridor at 2:30 a.m in the night for the prosecutrix, drag her into his room using all his force and then let her go away only because she requests him to let her go, on the promise that she will return - in the attendant circumstances of this case which have come to the fore, namely that the accused and the prosecutrix were not on amicable or cordial terms and the prosecutrix and her husband had complained against the accused and his roommates to the landlord, there was absolutely no occasion for the accused to have believed that the prosecutrix was willing to have consensual sexual relationship with him and would return back to him as assertedly promised by her and on this assurance kept on waiting for her till the Police came and apprehended him. Further, it is the deposition of the prosecutrix in her crossexamination that she was resisting the acts of the accused with all her might and had even bitten the accused - if that indeed was so it again raises a doubt as to why the accused would allow the prosecutrix to leave his room on her mere request.
19. The first most material circumstance which points out to this inherent weakness and improbability in the version put forward by the prosecutrix is the fact that though in her initial complaint to the IO Ex.PW2/A, she does not make any reference whatsoever that there was another boy in the room of the accused who had also got up from sleep due to the commotion, she narrates the said facts in her statement recorded u/s 164 Cr.P.C. The contention of the Defence that the presence of another boy SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 12 of 16 in the room of the accused came to the knowledge of the prosecutrix only when the Police got the room of the accused opened and the IO apprehended him, does appear to have some merit and that is probably the reason the reference of the other boy in the room does not find mention in the complaint Ex.PW2/A which as per the deposition of IO and the prosecutrix was recorded after the IO reached at the spot and before the accused was apprehended from his room. In the considered opinion of this court, the non mentioning of the said fact in the initial complaint is a very material fact which cannot be ignored at all. There is no plausible reason for the prosecutrix to have not mentioned this fact in her complaint Ex.PW2/A - if she was indeed dragged by the accused into his room and due to the commotion caused by the forcible act being committed by the accused, the other boy had infact got up which gave the prosecutrix a chance to request the accused to allow her to go to attend to her weeping child (as narrated by her in her statement u/s 164 Cr.P.C. and deposition), she would have definitely mentioned this very material fact in her initial complaint Ex.PW2/A. It is also relevant to note that even in her examination in chief, she did not mention about the other boy being present in the room - it is only in the crossexamination that she adds that there was another boy in the room of the accused. Further, though she deposes in her crossexamination that the statement of the said boy was recorded by the IO, the IO herself has deposed that no such statement was recorded because the said boy had categorically informed the IO that he had not witnessed any such thing as asserted by the prosecutrix.
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20. The second important circumstance which creates doubt in the version put forward by the prosecution is the inconsistency in the statements tendered by the prosecutrix with respect to the alleged removing of her clothes by the accused. In her complaint Ex.PW2/A, the prosecutrix has narrated that the accused had lifted her upper garments and had started pressing her breasts. However, in her statement tendered u/s 164 Cr.P.C she has stated that the accused had only attempted to remove her clothes while in her deposition before the court she has categorically deposed that the accused removed her clothes. The Ld. Addl. PP has, however, sought to contend before this court that the words 'removed' used by the prosecutrix during her deposition be interpreted to mean that the accused had lifted the upper garments of the prosecutrix. He has submitted that had the prosecutrix been asked in the crossexamination to explain the manner in which the accused had removed her clothes, she would have explained the same in a proper manner. His submission is that the Defence deliberately did not seek this explanation from the prosecutrix and the contention is that they now cannot be allowed to argue that there is inconsistency between the statements given by the prosecutrix. This court is unable to agree with the said contention of the Ld. Addl PP for it is to be noted that the prosecutrix was crossexamined by the Ld. Defence Counsel with respect to her allegation of removing of clothes and she in her cross examination has deposed that she was wearing suit at the time of the incident and that the accused had removed her clothes with both his hands - in the considered opinion of this court at this stage, if the prosecutrix had wanted, she could have easily explained that the accused had only lifted her SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 14 of 16 clothes and not removed them. Further, the prosecution itself was also always at liberty to get it clarified from the prosecutrix the manner in which her clothes were removed by the accused, but they did not do so.
21. As such, in view of the aforementioned inconsistent statements given by the prosecutrix, in the considered opinion of this court, the benefit of doubt will have to be given to the accused only, more so when no injuries on the lips of the prosecutrix was either reported by her or observed by the concerned doctor at the time of her medical examination despite her specific allegation that the accused had bitten her on her lips. No doubt, the Ld. Addl. PP for the State has rightly pointed out that the filing of the complaint by the prosecutrix immediately after the incident is a fact which is to be given weightage, but at the same time, the aforementioned lacuna in her initial complaint Ex. PW1/A also cannot be ignored. In a case titled and reported as Dhanapal Vs. State (2009) 10 SCC 401, the Hon'ble Supreme Court in its judgment has made the following important observations:
''In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words,the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.'' SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 15 of 16
22. This court is conscious of the fact that in such cases involving sexual molestation, the testimony of the prosecutrix has to be appreciated with much sensitivity and is not to be discarded only because of some minor contradictions or insignificant discrepancies in the statement of the prosecutrix, however, in the present case, the evidence of the prosecutrix has not inspired much confidence in this court and in view of the examination of the broader probabilities of the case put forward by the prosecution, which have been discussed in detail hereinabove, this court is of the considered opinion that the accused will have to be granted the benefit of doubt in view of the settled principles of criminal jurisprudence. Further, in such view of the matter this court does not find it necessary to discuss whether the accused has to be held guilty of the offence punishable under section 376 IPC read with section 511 IPC or section 354 IPC.
23. In view of the discussion hereinabove, the accused hereby stands acquitted of all the offences for which he has faced trial. However, in terms of section 437A Cr.P.C., accused is hereby directed to furnish a fresh bail bond in the sum of Rs.10,000/ with one surety in the like amount.
Announced in Open Court on 15th Day of January 2018.
(Anu Grover Baliga) Court No.7, Lock UP Building ASJ / FTC / PHC / NDD New Delhi / 15.01.2018 SC No.9130/2016 FIR No. 390/15 State vs.Udayraj PS Delhi Cantt 16 of 16