Delhi District Court
State vs . Ram Kishore, on 23 March, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.9186/2016
FIR No.387/15
U/s 376 / 506 of IPC
PS Sagar Pur
State Vs. Ram Kishore,
S/o Sh. Phool Sahai,
R/o H.No.RZ-P-9/365, 366 Dayal Park,
West Sagarpur, New Delhi
Date of Institution 18.04.2016
Argument heard/order reserved 23.03.2017
Date of judgment 23.03.2017
Final Order Acquitted
JUDGMENT
FACTS OF THE CASE
1. Succinctly, the facts of case unfolded from the charge sheet filed u/s 173 Criminal Procedure Code (for short Cr.P.C) are that the prosecutrix "P" W/o "SK" (name of prosecutrix and her husband has been withheld with a view to conceal their identity) had gone to see a flat in Durga Park where accused met her. At that time accused told the prosecutrix that accused was going to his native village and asked her to come later on. Accused also gave his mobile phone number 9213660089 to prosecutrix and took her mobile number. Thereafter, on 15.05.2015 at about 10.00 am, accused reached near Kallar at Durga Park, accused met her and took her in Gali No.14E, Durga Park, where a four storey FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 1 of 15 building was already built up. Accused took her at fourth floor of the said building and told her that the rate of the said flat is Rs.10 Lacs to which she told that she could not purchase such costly flat. Thereafter, prosecutrix asked the accused for drinking water. Then accused went down, brought a new bottle of cold drink, accused took cold drink in a glass and prosecutrix took the same in the bottle and thereafter accused made physical relationship with her forcibly against her will and without her consent in the said flat and thereafter he criminally intimidate her stating that she should keep quite otherwise he will kill her. These are the allegations upon which present FIR was registered, matter was investigated into and accused was charge-sheeted in this case.
INVESTIGATION
2. During investigation interalia other things, IO recorded the statement of prosecutrix under Section 161 of CrPC, got conducted medical examination of prosecutrix from DDU Hospital, prepared site plan at the instance of prosecutrix, got recorded statement of prosecutrix u/s 164 of Cr.P.C before Ld. MM and got conducted medical examination / potency test of accused at DDU Hospital/Safdarjang Hospital after his arrest. After completion of investigation, the challan was filed before the Ld. MM on 06.02.2016. Thereafter, the case was committed and was assigned to this Court vide order dated 18.04.2016.
CHARGE
3. On 07.06.2016, a charge for the offences punishable u/s 376 and 506 of IPC was framed against accused to which he pleaded not guilty and claimed trial. Thereafter, matter was posted for admission / denial of documents and prosecution evidence.
FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 2 of 15 PROSECUTION EVDIENCE
4. In order to substantiate its case, the prosecution examined as many as two witnesses which are as follows:-..
Prosecutrix appeared as PW1 in the witness box and she was the star witness and she has not supported the case of the prosecution in her cross- examination. Thereafter she was re-examined on behalf of the State. Witness PW2/landlady has also not supported the case of the prosecution and nothing incriminating has come on record in her cross-examination.
Keeping in view the statement of the prosecutrix and PW-2/Landlady and since witness Smt. Saroj Tyagi was dropped, prosecution evidence was closed vide order dated 08.03.2017, statement of accused was dispensed with and matter was fixed for final arguments.
FINAL ARGUMENTS
5. Today, final arguments heard on behalf of both the parties. I have also gone through the records.
6. It was submitted on behalf of State that prior to one month of present incident which has happened on 15.05.2015, prosecutrix was searching a room for purchase. In this connection, she had met accused Ram Kishore and he introduced himself as a property dealer and informed her that he would show the flat to her and gave his mobile phone number. He also informed that he is going to his native village. After one month, accused called prosecutrix to her mobile phone at about 10:00 AM and informed that he has returned to Delhi and would show a flat to prosecutrix at Durga Park. Prosecutrix informed about these facts to FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 3 of 15 her husband and went to Kallar, Durga Park, where Ram Kishore met her. Thereafter, Ram Kishore took her to show a flat in a building constructed upto four storey. Accused took the prosecurix on fourth floor and quoted the cost of the said flat about rupees ten lacs. She told him it is too costly and her budget is not more than Rs. 7 lakhs. Prosecutrix became thirsty and requested for a glass of water. The accused had brought the cold drink "Dew". Prosecutrix drank the cold drink from the bottle while accused drank the said cold drink in a glass. Prosecutrix sat down there due to extortion. The accused had closed the doors and windows on the pretext of dust. Prosecutrix raised objection but accused bolted the door from inside and raped her, when she told that she would complaint against him, he threatened that he would kill her. All these facts have been reiterated by the prosecutrix before Court and have been proved beyond doubt and her latter statement in cross-examination can not be read. Therefore, accused may be convicted for the alleged offence.
7. On the other hand, learned defence counsel argued that accused is innocent and has been falsely implicated in this case. It is further argued that in her cross examination, prosecutrix has deposed that she was having physical relationship with the accused prior to the incident and having physical relationship with the with her own consent on the day of the incident. She has further deposed in her cross- examination that accused did not serve any cold drink to me on the day of the incident and she was not under the influence of any intoxicating material on the day of incident. Prosecutrix has further stated in her cross-examination that there was monetary dispute between her and the accused and she went to he police station for the said reason and the police station she was made to understand by the police officials to make the present complaint in the present form. She has FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 4 of 15 further deposed in her cross-examination that the door and window of the flat were already closed/locked and she made the present complaint under misunderstanding at the instance of the police and due to monetary dispute. She has further deposed in her cross-examination that during the medical examination, she did not tell any facts to the doctor but police officials told to the doctor. All these facts raises doubts about the veracity of statement of prosecutrix. Therefore, accused may kindly be acquitted of the alleged offence.
RELAVANT PROVISION OF LAW
8. 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" who, except in the case hereinafter except, has sexual intercourse with a woman under circumstances falling under any of the six following description -
First. - Against her will.
Secondly. - Against her consent.
Thirdly. - With her consent, when her consent
has been obtained by putting her or any person in whom, she is interested in fear of death or of hurt.
Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 5 of 15 unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. - With or without her consent, when
she is under sixteen years of age.
Explanation 1. - Penetration is sufficient to
constitute the sexual intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.".
Sixthly.- With or without her consent, when
she is under eighteen years of age.
Seventhly.- When she is unable to
communicate consent.
Explanation.1- For the purposes of this section, "vagina" shall also include labia majora.
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".
Exception.1- A medical procedure or intervention shall not constitute rape.
Exception.2-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 6 of 15 fifteen years of age is not rape.] Section 506 IPC- Punishment for criminal intimidation.-
"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or (imprisonment for life), or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which my extend to seven years, or with fine, or with both."
CASE LAW:
(A) 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:-
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:
Consent supposes three things a physical power, a FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 7 of 15 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 of 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.
(B) In the case of State of H.P. Vs Mango Ram, MANU/SC/0527/2000 : 2000 Cri. LJ 4027, the Hon'ble Supreme Court observed as under:-
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances".
(C) 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 FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 8 of 15 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 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 FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 9 of 15 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.
(D) In the case of "State of UP Vs. M.K. Anthony AIR 1985 SC 48", the Hon'ble Supreme Court has laid down following guidelines which are to be followed by the courts.
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 10 of 15 evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because of power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
FINDINGS
9. In the present case, the accused was put on trial that the accused had sexually assaulted upon the prosecutrix on 15.05.2015 at around 10.00 am at a house in Gali No.14E, Durga Park, without her consent and criminally intimated her not to disclose this fact to any one otherwise he would kill her.
10. In the present case, the prosecutrix appeared in the witness box and she was examined as PW1 by the prosecution in order to substantiate the allegation. In her examination in chief, she reiterated the facts of the case. However, in her cross-examination she admitted that she knew the accused prior to six months of the present incident and she was constantly in touch with the accused through mobile phone. She has further admitted that she was on talking terms with the accused for about 15 / 20 minutes at a times. She has furher deposed that there was some money transactions between them and prior to the incident she has already visited the place of FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 11 of 15 occurrence 2 / 3 times. She has further admitted that she was having physical relationship with the accused prior to the incident and even on the place of occurrence. She has further admitted that on the day of incident i.e. 15.05.2015 she had consensual physical relationship with the accused.
11. She has further admitted that she had money dispute with the accused and to teach the accused a lesson, she filed the present complaint against the accused. She has admitted that the present complaint ExPW1/A is not in her handwriting. She has further admitted that the door of window of the room on the place of the incident was not locked by the accused. In her re- examination she has stated that she made the present complaint due to fear of the police. Despite her re-examination nothing has come on record that she made false statement in her cross-examination.
12. Witness Smt. Satyawati, landlord was examined as PW2, who also has not supported the case of the prosecution.
13. No doubt, the conviction of the accused can be done on the sole testimony of the prosecutrix but the rider is that her testimony must be of sterling quality, i.e. it should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it on it face value without any hesitation. To test the quality of such witness, the status of the witness could be immaterial and what would be relevant is the truthfulness of the statement made by such witness. For the said purpose, there should be the consistency of the statement right from the starting point till the end, namely, FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 12 of 15 at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. No doubt, witness is not supposed to narrate the story in stereo type since the first statement till the last statement, but the statement should be without any prevarication in the version. The witness should be in a position to withstand the cross examination of any length and strenuous it may be and under no circumstances should give room for any doubt as to the factum of occurrence, the persons involved as well as the sequence of events. Such a version should have co-relation with each and every one of other supporting material such as the recovery made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied to the case of circumstantial evidence where there should not be any missing lead in the chain of circumstances to hold the accused guilty of offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness, whose version can be accepted by the court without any corroboration and based on this, the guilty can be punished. In other words, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials i.e. oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to seive the other supporting materials for holding the accused guilty of the charge alleged. In the present case, it is admitted fact that no hue and cry was raised by the FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 13 of 15 prosecutrix. Even incident of rape is stated to have been committed at 11 am but matter was reported at 3 pm. There is no explanation for delay. As per MLC ExPW1/B there was no injury marks on the person of prosecutrix. Even after incident prosecutrix did not disclose about the incident to building owner where the incident of sexual assault had happened which appears to be unusual. In the complaint ExPW1/A there is allegation that accused ran away from the spot when prosecutrix told him that she would report the matter to police. Thus, there was occasion to the prosecutrix to disclose the incident to flat owner/PW2 but reason best known to her she did not disclose the incident to her. Even witness Saroj Tyagi who was dropped by prosecution has stated in her statement under Section 161 of CrPC dated 14.06.2015 that Mr. Sanjeev, who was husband of prosecutrix approached her and later on demanded money to withdraw complaint through one Mr. Mahesh and she identified the recorded conversation in this regard. Thus even from investigation, it has been established that it was a case of consensual relationship and later on prosecutrix wanted to extract money from the accused. In this regard there is call details attached with present charge-sheet. Thus from the above discussion it is clear that it was a consensual physical relationship which later on turned to be honey trap to extract money from the accused.
14. 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 FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 14 of 15 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."
15. Thus, in view of the testimonies of prosecutrix/PW1 and PW2/Landlady and in the facts and circumstances of the case, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore, accused can not be held guilty for the alleged offences as there is no material corroboration or support to the allegations in complaint. Accordingly, accused is acquitted of all charges leveled against him. Accused is directed to furnish fresh bail bond in the sum of Rs.50,000/- in terms of section 437A of Cr.P.C.
At this stage, fresh bail bonds furnished u/s 437A of Cr.P.C on his behalf and accepted for a period of six months. His earlier bail bond stands canceled. Surety stands discharged. Original documents, if any, be returned back to the rightful claimants after endorsement canceled thereupon.
File be consigned to the Record Room after due completion.
(Devendra Kr. Sharma) Court No.7, Lock UP Building ASJ / FTC / PHC / NDD New Delhi /23.03.2017 Announced in open court on 23.03.2017 (Total number of page 15) (One spare copy attached) FIR No.387/15 PS Sagar Pur U/s 376 & 506 of IPC State vs. Ram Kishore 15 of 15