Delhi District Court
Sc No.121/13, St. vs . 148/13, on 30 March, 2016
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 121/13
Unique Case ID Number : 02401R0312012013
State
Versus
Mr. Ramesh Kumar,
S/o. Sh. Ramjiyawan
R/o. H.No.29, Umed Singh's House
Near Soya Factory, Kamruddin Nagar,
New Delhi.
First Information Report Number : 148/2013
Police Station : Nihal Vihar
Under sections : 376 and 506 of the Indian Penal Code.
Date of filing of the charge sheet before : 29.06.2013
the Court of the Metropolitan Magistrate
Date of receipt of this file after committal : 15.07.2013
Arguments concluded on : 29.03.2016
Date of judgment : 30.03.2016.
Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the
SC No.121/13, St. Vs. 148/13,
PS. Nihal Vihar, U/s. 376/506 IPC Page 1 of 32 St. Vs. Ramesh Kumar
Accused on bail with counsel, Mr. Vikarm Dua.
JUDGMENT
1. Prosecution case is based on the complaint of prosecutrix dt. 06.05.2013 that on 04.05.2013 around 12 of night when she was going to sleep with her husband on the roof, and was near the stairs, a person who lived in the same house as the tenant named Ramesh s/o Ram Jiya Wan caught her from behind. He closed her mouth with his hand and took her to his room where he committed rape upon her on the cot. He closed her mouth with his hand when she tried to raise alarm and left her after threatening that if she disclosed anything to anyone he would kill her. She did not tell anything to anyone out of fear. On 05.05.2013 she went to meet her mother and on asking of the mother, she told everything to her. Thereafter, her mother told everything to her husband and her husband called the police at no.100.
On the basis of this complaint an FIR U/s.376/506 IPC was registered. During the investigation, statement of prosecutrix U/s.164 Cr.PC was recorded on 26.06.2013. In the statement, the prosecutrix stated that she was going to the roof to call her husband for taking meal. The accused kept his hand on her mouth with a cloth because of which she fell unconscious and the accused lifted her and took her to his room while she was unconscious. She stated that when she regained consciousness, she found herself in the room of accused and after putting on her cloths she went to her SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 2 of 32 St. Vs. Ramesh Kumar room. Next day her mother came to her house, she told everything to her. Her mother called her husband telephonically, who came and then they went to PS for giving the complaint.
2. Chargesheet was filed under sections 376/506 IPC. The case after compliance of section 207 Cr.P.C. was sent to the sessions court for trial Charge was framed against the accused U/s.376/506 IPC to which he pleaded not guilty and claimed trial.
3. To prove its case, prosecution examined 16 witnesses.
4. PW1 is the prosecutrix. In her evidence she deposed that she was living at the address mentioned in chargesheet (not being reproduced herein to maintain the privacy of the prosecutrix) alongwith her husband. On 04052013 around 12 midnight she was going to the terrace, where her husband was sleeping. When she was climbing the stairs, the accused came from behind and kept a cloth on her mouth. There was something in his hand due to which she fell unconscious. The accused took her to his room and put her on a cot. He removed her cloths and raped her. She deposed that she was raped while she was unconscious She regained consciousness in the morning and found that she was without cloths and had been raped by the accused. She put on her cloths and went back to her room. In her cross examination she said that her brother in law had come to Delhi and was living in their SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 3 of 32 St. Vs. Ramesh Kumar house during the period of incident.
5. PW2 Ct. Deepika had attended the call received from mobile no. 7503830488 and has deposed that it was reported that someone had misbehaved with the wife of caller at Nangloi. The record has been tendered in evidence as Ex. PW2/A.
6. PW3 SI Sudarshan accompanied by PW4 Ct. Sumer Singh was on emergency duty when he received DD No.48A at 9.10 PM on 05.05.2013. The DD was regarding misbehaviour with the wife of caller. He went to the spot where he met Radhey Shyam who told that his wife was raped by one Ramesh who had fled away from the spot. He took Radhey Shyam and his wife to SGM Hospital and before that he called the SHO and informed him about the incident, who sent WCt. Sunita to the hospital. W Constable got the prosecutrix examined medically.
7. ASI Rekha reached the hospital and recorded the statement of prosecutrix (Ex. PW1/A) on the basis of which rukka was prepared and was sent for registration of FIR through Ct. Sumer Singh (PW4).
8. PW5 Purshottam Pathak Ld. MM has proved the statement U/s.164 Cr.P.C. recorded by him which is Ex. PW1/E. He also proved the applications moved by IO for the recording of statement as well as for SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 4 of 32 St. Vs. Ramesh Kumar supply of proceeding Ex. PW5/A & PW5/B respectively.
9. PW6 Umed Singh was the landlord of both the complainant and the accused. He deposed that accused was his tenant from JuneJuly 2012 till 12.05.2013 and Radhey Shyam was also his tenant during the same period. He says that he came to know on 05.05.2013 that accused had committed rape upon the prosecutrix. In his crossexamination the witness stated that there were two more tenants residing in the same property but they were not present at the time of incident, having gone to their native places. He improved later to say that Mr. Mitar Sain, the other tenant was available but Sher Singh was not available. He deposed that the kitchen measuring 5 x 5 feet was rented out to Radhey Shyam, wherein he resided with his wife and brother aged 2223 years. He stated that he had not received any complaint from anyone against accused Ramesh Kumar.
10. PW7 ASI Badlu Ram was the duty officer on the relevant date and had recorded the FIR based on the rukka sent by ASI Rekha Rani. The computerized copy of FIR is Ex. PW7/A. The endorsement made on rukka regarding registration of FIR is Ex. PW7/C. The certificate U/s.65B Indian Evidence Act is Ex. PW7/B.
11. PW9 Dr. Vinay Kumar had examined accused and has proved SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 5 of 32 St. Vs. Ramesh Kumar his MLC Ex. PW9/A stating that the accused was capable of performing sexual intercourse.
12. PW10 had examined the prosecutrix and has proved the MLC Ex. PW10/A.
13. PW11 is the husband of the prosecutrix. He deposed that on 04.05.13 after coming back from his work and taking his dinner, he went to sleep on the roof around 10 PM. Next morning he woke up and went for his work. Around evening he received his mother in law's call informing him that accused had raped his wife. He came back to his house and called the police at No.100. His wife told him that on 04.05.2013 around 12 midnight when she was coming upstairs to sleep, she was caught by accused who put one cloth around her neck and she became semiconscious. After that she was taken to the room of accused and was raped by him. She regained the consciousness around 5 AM. He deposed that on 05.05.2013 when he was going for his work, he saw that his wife was finding it difficult to get up and so she did not cook the meal for him. The witness in his crossexamination stated that his brother Anil was not in house on the said date and had gone to someone else's house in the evening. A specific suggestion was given to him that his brother was present in his house at the time of incident, which was denied by him. He said that he did not tell the facts regarding he having asked his wife to cook and she having SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 6 of 32 St. Vs. Ramesh Kumar disclosed that she was feeling giddy, to the police. In his cross examination, the witness stated that his wife had told him in the morning that the accused had raped her at about 12 midnight and that he did not say anything to her. He stated that he had told the police about his wife having told the fact of rape to him in the morning, which was confronted with his statement Ex. PW11/DA. He deposed that after his wife disclosed about the incident to him he searched for the accused and did not go for his work. However, he clarified immediately that he had gone for work around 6 AM and had come back around 4 PM. He stated that his mother in law had told him about the incident after he returned from his work. She had called him to her house and disclosed the incident there. He deposed that he had gone to the Talaab at Nangloi and had called the police from there and police had also reached there. He denied the suggestion that accused was falsely implicated to save his brother, who was seen in a compromising position with his wife, to save the honour of the family.
14. PW12 Dr. Supriya Parashar proved the signature of Dr. Parvinder on the MLC of the prosecutrix.
15. PW13 is the mother of the prosecutrix. She says that on 5 th, the month she did not remember, 2013 around 7 AM, she had gone to the house SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 7 of 32 St. Vs. Ramesh Kumar of her daughter, who was still sleeping. With great difficulties her daughter told her that accused Ramesh had caught her from stairs when she was going up and had committed rape upon her. She says that she called her son in law and told him the incident. In her cross, she has stated that Anil (brother inlaw of prosecutrix) was residing with the prosecutrix and her husband on the date of incident. Her daughter has three rooms under tenancy.
16. PW14 Ct. M.R. Prasad had joined the investigation with IO in search of the accused who could be found only around 3.30 to 4 PM inside his tenanted room. He deposed that accused made a disclosure which is Ex. PW14/A and was taken for medical examination by him. The doctor had handed over two sealed pullandas, sample seal and MLC of accused, which were seized by the IO vide Ex. PW14/B. The accused pointed the place of incident vide memo Ex. PW14/C.
17. PW16 is the IO. She has deposed about the investigation; has proved the rukka; the counseling report of the counseling provided to the prosecutrix by an NGO as Ex. PW16/B. She also proved the FSL report.
18. Statement of the accused was recorded U/s.313 Cr.P.C. He denied the entire incriminating evidence. About his arrest, he said that he received a call from PS Nihal Vihar and went there, where he was arrested.
SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 8 of 32 St. Vs. Ramesh Kumar He stated that since he had seen the prosecutrix and her brother in law, while her husband was shouting and abusing at them having found them in a compromising condition they implicated him falsely in this case to save their honour.
19. Arguments were advanced by Ms. Madhu Arora Ld. Additional PP and Sh. Vikram Dua Adv. Ld. Counsel for the accused. ● Ld. Counsel for the accused argued that the FSL report does not support the prosecution case.
● There is contradictory evidence of the prosecution witnesses on the presence of the brother in law of the prosecutrix in the house at the time of incident.
● There is an unexplained delay in registration of FIR. ● prosecutrix has given contradictory versions regarding her going to the terrace as also on how she was caught by the accused. ● She says that she was unconscious when the rape was committed; she, therefore, cannot say who committed the offence with her. ● There are contradictory statements on how the police ws informed and where the complainant and her husband met the police. ● He argued that the prosecutrix was married to her husband for five years and they did not have any children, which shows that the married life was not satisfactory; in this regard he also put forward the defence of the accused that the prosecutrix was in fact caught by her SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 9 of 32 St. Vs. Ramesh Kumar husband in a compromising condition with her brother in law; and because the accused had seen and heard this, to save the family honour he was falsely implicated.
● No injury was suffered by the prosecutrix though she claims that she was dragged in an unconscious state from stairs till the room of the accused.
● Husband has deposed that the prosecutrix had informed her about the incident in the morning itself... why was the complaint not given then? ● There is contradiction regarding the place where the mother of prosecutrix was informed . All the witnesses are contradicting each other.
Ld. Addl. PP on the other hand argued that: ● The mother and the prosecutrix have corroborated each other. There are some ignorable minor contradictions ● Human semen was detected in the cloths of the prosecutrix. Though DNA could not be extracted.
20. Arguments heard. Record perused.
21. The findings on the points relevant for a case of sexual assault and points raised by Ld. Counsel for accused are as under: IDENTITY OF THE ACCUSED: SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 10 of 32 St. Vs. Ramesh Kumar
22. There is no dispute regarding the identity of the accused Ramesh Kumar, who has been identified in the Court by PW1, the prosecutrix, PW6 Mr. Umed Singh, owner of the rooms taken on rent by the accused & prosecutrix, PW11Mr. Radhey Shyam, husband of prosecutrix, PW13 Ms. Tarawati mother of the prosecutrix and PW16 who is the police witnesses of investigation. It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR, as they both were tenants in the same house for a long time. Accused is also named in the FIR (Ex.PW7/A). The identity of the accused thus stands established.
AGE OF THE PROSECUTRIX:
23. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her statement (Ex.PW1/A), her MLC (Ex.PW10/A) and in her particulars in her evidence, the prosecutrix has mentioned her age as 25 years and she has mentioned her age as 30 years at one place i.e in her statement under section 164 of the Cr.P.C. (Ex.PW1/E). None of the disclosed age, however, makes her a minor under the law. As per the prosecution, she was major at the time of the alleged incident. Her age is not disputed by the accused or by the prosecution. Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED:
24. PW9 Dr. Binay Kumar had medically examined the accused SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 11 of 32 St. Vs. Ramesh Kumar vide MLC (Ex.PW9/A). It is mentioned in the MLC of the accused (Ex.PW9/A) that "there is nothing to suggest that Patient is not capable of performing sexual intercourse". The doctor had taken and seized the blood sample, and undergarment of the accused. The accused did not have any fresh external injury. The accused as such was capable of performing sexual intercourse and could have committed the rape.
DELAY IN FIR:
25. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
The counsel for the accused has argued that there is an unexplained delay in lodging the FIR which was lodged after due deliberation and consultation.
The contention of the prosecution is that there is no delay in lodging the FIR as the prosecutrix lodged the complaint as early as possible.
The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR has to be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 12 of 32 St. Vs. Ramesh Kumar offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses/relevant witnesses present at the scene of occurrence.
It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
Parties have relied upon judgments on the aspect of the delay and condonation wherever possible.
In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 13 of 32 St. Vs. Ramesh Kumar are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 3036 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 14 of 32 St. Vs. Ramesh Kumar Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgment but 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"
The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh , 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them. It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
26. Coming to the facts of the case, it is claimed by the accused that SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 15 of 32 St. Vs. Ramesh Kumar as the FIR has been lodged after a delay of about one day i.e on 06.05.2013 at 04:15 hours while as per the allegations made by the prosecutrix in her complaint (Ex.PW1/A) accused committed rape upon her in the night of 04.05.13 The delay in lodging of the FIR has not been explained by the prosecution.
The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible.
Here, the judgment of the Hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.
Not only a reasonable explanation of delay has come forward there are contradictions in the testimony of witnesses as to when the information was shared amongst themselves also. The prosecturix in her statement to the police stated that she had gone to her mother's house on 05.05.13 where she told her about the incident. Before the court she says that her mother had come to her house and she told her about the incident in her house. The mother says that she came to the house of her daughter at 9 am. Her daughter told her about the incident and she called her son inlaw SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 16 of 32 St. Vs. Ramesh Kumar and narrated the incident to him. If the mother is to be believed, the husband was informed somewhere around 9 am telephonically about the incident. The prosecutrix in her crossexamination says that her mother informed her husband since he had not come for lunch that day. Which means that the husband would have been informed after the lunch time and would have come back thereafter. The husband himself seems completely lost and confused, who in his crossexamination says that his wife had informed him in the morning itself that the accused had committed the offence with her. He also says that he had told this fact to the police also. The statement was confronted with his statement u/s. 161 Cr.P.C. If the husband is to be believed he had the knowledge of offence having been committed with his wife early in the morning. Instead of lodging of complaint, he went for his work as stated further in his crossexamination, which appears to be a very unnatural conduct on part of a husband. In his crossexamination he further says that after he came back to his home on receiving the call of his mother inlaw, he had gone to her house, where she informed the incident to him. This statement is not corroborated by either the prosecutrix or her mother. There is thus a complete confusion on the time at which the information had been shared between the family member. It therefore, becomes difficult to ascertain by what time the information ought to have reached the PS. If the husband is to be believed the information should have reached the PS in the morning hours itself and there is no explanation for delay of whole day of 5 th and uptill 4.15 hours of 06.05.13. Even if the mother and daughter are SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 17 of 32 St. Vs. Ramesh Kumar believed that the information was not disclosed to the husband early in the morning, they are not giving a clear statement on when and where the information was shared between the two of them and when exactly was the husband informed. The prosecutrix and the prosecution have not been able to justify the delay and why the prosecutrix did not report the matter immediately and allowed the time to lapse till the evening of next day.
EVIDENCE AND OTHER STATEMENTS OF THE PROSECUTRIX:
27. It is very essential and important to discuss and analyse the different statements of the prosecutrix.
The main contention of the defence is that the testimony of prosecutrix given at the three stages is contradictory and so untrustworthy.
The prosecutrix gave her first statement to the police on 0605 2013. Her statement was that on 04052013, when she was going to sleep with her husband around 12 of night and was on the stairs, the accused, who was also a tenant in the same house and was known to her as both he and her family were living in the same house for last 34 years, came from behind and caught her. He closed her mouth with his hand and took her to his room, where he made her lie on the cot and raped her. He silenced her by putting his hand on her mouth when she tried to raise alarm. He threatened her that if she would disclose anything to anyone, he would kill her. On next day when she went to meet her mother to her house then on asking of her mother, she disclosed the incident to the mother. Her mother called her SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 18 of 32 St. Vs. Ramesh Kumar husband, who then informed the police.
Her statement under section 164 Cr.P.C was recorded one month 20 days later on 26062013. Her version in this statement was that she was residing in the house for 34 years and accused came to live there later. On 4th of the previous month her husband was sleeping on the terrace and she was going to wake him up for the dinner. Accused caught her tightly from behind. He put his hand, which had some cloth, on her face. Before she could raise alarm, she fell unconscious. She deposed that the accused took her to his room. She was unconscious but could feel that her cloths were being removed. She deposed that when physical relations were being made with her, she was not in a situation to defend and she became fully unconscious. When she got her senses back she was in the room of the accused on his bed with no cloths on her body.
In her statement before the court she gave a statement similar to the one given to the Ld MM.
28. There are apparent contradictions in the testimony of prosecutrix visavis the manner in which she was taken to the room of the accused i.e whether or not by intoxicating her (regarding which there is no evidence otherwise on record except for her oral testimony). She has also given contradictory statement on the purpose for which she was going to the terrace. In Ex.PW1/A she says that she was going to sleep with her husband; to the Ld. MM she says that she was going to wake him up for the SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 19 of 32 St. Vs. Ramesh Kumar dinner and in the court in chief examination she says that she was going to sleep with the husband while in crossexamination she again said that she was going to call her husband for taking dinner (page 3 of crossexamination dt. 30.07.14).
Ld. Counsel for the accused has argued that if the husband had not taken the dinner and the prosecutrix was going to call him for taking the dinner, in all probabilities,the husband was expected to come down to take the dinner. The prosecutrix has also stated that her brother inlaw was on the ground floor and was awake, though he had taken his dinner. It is strange also that the brother inlaw also did not try to find out why the brother and sister inlaw did not come back to take the dinner.
The fact, which could have been ignorable under ordinary circumstance, is very relevant in the facts of the case. If the husband was sleeping and she was also going to sleep, there would not have been any issue. But if the husband had not taken the meal and she was going call him for the same, there was a possibility of husband having come down for taking the dinner at any point of time. Further the brother in law, who according to the prosecutrix was in the room and was not sleeping, would have known that both husband and wife had to take the dinner. It is hard to believe that prosecutrix was brought in an intoxicated condition to the room and the brother inlaw, who was in the adjoining room and was not sleeping did not find out anything.
Could under theses circumstances, the accused have taken the SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 20 of 32 St. Vs. Ramesh Kumar risk of grabbing the prosecutrix and dragging her to his room and further in having allowed her to remain in his room whole night without cloths (not fearing of being caught by either the husband or the brother in law).
It appears highly improbable that the accused having full knowledge of the fact that the husband and the brother in law of the prosecutrix are in the same premises very close to him could have taken her to his room and have kept her there whole night. Relevantly the prosecutrix does not say in her statement to the police Ex.PW1/A that she was intoxicated.
The prosecutrix says that she had regained her consciousness around 5 am and had come back to her room. She however, added that her husband and brother inlaw had left by then. She, however, also says that her husband used to leave at 9 am. The husband says that he used to leave at 9 am usually and at 6 am on Sundays. The timings are very relevant in this matter since it needs to be found as to when and how the prosecutrix found that she had been raped and when and how she told this fact to her husband. The husband says in her crossexamination that when he came down he met his wife, though the wife is saying that he did not meet the husband as he had left. The husband also says that his wife had disclosed the fact of rape to him. Why did he not confront her or the accused or report the matter to the police has remained unexplained throughout. How is it that husband is saying that he met the prosecutrix but she says that he and brother inlaw had left already when she came to her room. How is it that neither the SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 21 of 32 St. Vs. Ramesh Kumar husband nor brother inlaw tried to find out where she was and left the home just like that. Turning to the present case, carefully scrutiny of her different statements shows that the prosecutrix has made several improvements, contradictions and inconsistencies in her evidence and her deposition is contrary to her earlier statements.
29. There are contradictory statements of the witnesses regarding the first disclosure of the allegations. The prosecutrix in Ex.PW1/A says that she had gone to her mother's place where she told her the incident. In her statement u/s. 164 Cr.P.C she says that her mother came to her house and then she told her the fact. The mother says that she had come to the house of her daughter when the fact was disclosed to her. The mother says that she called the husband who came back immediately from his office and then they called the police. The husband says that the mother inlaw had told him about the rape when he returned from his work (crossexamination page 2 dt. 23.02.15). The husband says that mother inlaw had called him to her house and told him about the incident, though the mother inlaw says that she had telephoned her son inlaw and narrated the incident to him. She does not say about her son inlaw having visited her house. The wife is also silent on her husband's visit to the mother's house and says that husband had come home immediately and then they informed about the incident to the police.
The husband has unnecessarily tried to hide the factum of presence of brother inlaw in the house, though the prosecutrix is saying that SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 22 of 32 St. Vs. Ramesh Kumar he was present in the house and was awake at the time of incident and he landlord also says that the brother of Radhey shyam was living with husband and wife in the same room.
30. Coming to the incident, the prosecutrix says that she could see the accused only when he had put his hand on her mouth, whereafter she lost her consciousness. She was unconscious when accused allegedly removed her clothes and raped her. Apparently, she cannot say with certainty that it was accused who committed rape upon her. She presumed it when she woke up and found that there were no clothes on her body. She is silent in her examination inchief about the presence of accused in the room when she woke up in the morning. She says in her crossexamination that she could feel that she had been raped by accused after regaining consciousness and she could understand it because there were no clothes on her body and she had a sense that she had been raped. To the Magistrate(statement under section 164 Cr.P.C), the prosecutrix stated that there was no one in the room when she regained consciousness and a confronted version came in cross examination when she said that accused was present in the room. If the accused was present in his room and as per the husband he was informed about the incident by the wife; the conduct of husband in having not confronted the accused and having left for his work raises a doubt about the incident, if at all, having taken place in the stated manner. Further, if the presence of accused in the room at the time of offence is doubtful, the SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 23 of 32 St. Vs. Ramesh Kumar benefit of the same has to be given to him.
31. Additionally, there are several minor contradictions on other issues. The prosecutrix says that her clothes were torn during the incident, which were not found so, when opened in the court. She says in her examination in chief that she regained consciousness at 5 am but denied the same in her crossexamination. Her statement that she had gone to the house of her mother was confronted as in the court she stated that the mother had come to her house. She gave contradictory statements regarding her knowledge about the place of residence of accused as also the time period for which the accused and her family were living in the house.
Medical and Scientific Evidence:
32. There is no medical evidence supporting the intoxication of the prosecutrix. If she remained under intoxication for almost 45 hours, there was a possibility of finding that out through medical examination. The MLC, though it records the history as of intoxication, however, does not speak of anything further. The effect of such long intoxication remain in the body even after the person regains the consciousness.
The report of FSL is that semen was found on the vaginal swab of the prosecutrix, however, the same could not be matched with the semen of accused on technical ground and therefore, does not connect to the accused with the positive evidence. Relevant fact is that the prosecutrix is a SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 24 of 32 St. Vs. Ramesh Kumar married woman and therefore, semen being found in her vaginal swab is not to be looked with suspicion unless the same is related to the accused. Ld Addl PP has argued that the ocular evidence has to given importance over the scientific evidence as per law. For being worthy of consideration n its own with no corroboration the testimony the witness has to be of the highest quality, which is not so in the present case, in view of the discussion hereinabove.
The prosecutrix and the prosecution have not been able to furnish any explanation regarding the contradictions which are too major to be ignored and strike at the very root of the case due to which the prosecution case appears to be false. The above mentioned overwhelming contradictions and glaring inconsistencies in the evidence of the prosecutrix and the other statements of the prosecutrix cannot be ignored. The veracity of the testimony of the prosecutrix stands shattered.
The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution story appears highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations of rape SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 25 of 32 St. Vs. Ramesh Kumar against the accused.
In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance has been placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was raped by the accused.
In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 26 of 32 St. Vs. Ramesh Kumar substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
33. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable.
34. In the present case, a story has been projected that the accused has raped the prosecutrix in the night of 04.05.13. This version appears to be untrue as there is no reason why he would do so. No reason is shown as to why the accused would jeopardize his future. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution. He is a mature man aged about 28 years (as per his MLC Ex.PW9/A) and capable of understanding the implications of his acts. He SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 27 of 32 St. Vs. Ramesh Kumar has completely denied having physical relations with the prosecutrix at any point of time.
35. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. There does not appear to be any criminal intention and mens rea on the part of the accused.
DEFENCE OF THE ACCUSED:
36. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has denied all the evidence of the prosecution. He stated that prosecutrix alongwith her husband and brother inlaw was residing in the same premises in the adjoining room of accused. He further stated that on the day of incident at around 5 am, he heard a loud voice with abusive language. He went out of his room and saw that Mr. Radhey Shyam husband of prosecutrix was abusing his wife and brother. Prosecutrix and her brother in SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 28 of 32 St. Vs. Ramesh Kumar law were without clothes and brother inlaw of prosecutrix was apologizing saying " Bhai Maaf Kar doh, galti ho gai". On seeing the accused, Mr. Radhey Shyam shouted at him and asked to go from there and thereafter, in the evening he received a call from PS. Nihal Vihar. He stated that prosecutrix and her husband had falsely implicated him just to make him shut his mouth and not to disclose the incident, he witnessed in the morning, to anyone. He has prayed that he may be acquitted as he has been implicated in a false case. Accused has preferred not to examine any witness in his defence.
The defence of the accused has also been put to the prosecutrix that she was involved with her brother inlaw, which has been denied by her in her cross examination.
It is also clear while discussing the different statements of the prosecutrix, that her version is neither reliable nor believable.
Therefore, the defence of the accused although is not proved properly but considering the unreliable evidence of the prosecutrix which suffers from overwhelming contradictions and glaring inconsistencies, the prosecution version is not believable and reliable.
37. The case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.
SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 29 of 32 St. Vs. Ramesh Kumar FINAL CONCLUSION:
38. The prosecution has failed to furnish any explanation in respect of the numerous contradictions and inconsistencies in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.
39. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.
40. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.
41. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 30 of 32 St. Vs. Ramesh Kumar alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.
42. It is a case of heinous crime of rape which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place. Here in the present case, is a prosecutrix who is not truthful. She has given different statements and made numerous contradictions and inconsistencies which remain unexplained.
43. The prosecution has miserably failed to prove that in the night of 04.05.13 , the accused had raped her on the false pretext of marriage with her.
44. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Ramesh Kumar.
SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 31 of 32 St. Vs. Ramesh Kumar
45. Accordingly, Ramesh Kumar , the accused, is hereby acquitted of the charges for the offences u/s. 376 and section 506 of the IPC.
46. COMPLAINCE OF SECTION 437AOF THE CR.P.C. AND OTHER FORMALITIES Compliance of section 437A Cr.P.C. is made in the order sheet of even date.
47. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
48. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
49. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on this 30th day of March, 2016.
(ANURADHA SHUKLA BHARDWAJ) Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
SC No.121/13, St. Vs. 148/13, PS. Nihal Vihar, U/s. 376/506 IPC Page 32 of 32 St. Vs. Ramesh Kumar