Delhi District Court
State vs Accused on 17 May, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0368352010 SC NO.109/13 Date of Institution :11.03.2011 FIR No.112/10 Date of Argument :02.05.2013 PS Sonia Vihar Date of Order :17.05.2013 U/S 376/378/506/34 IPC State Versus Accused 1. Kamal Kapoor S/o Sh. B.K. Kapoor R/o B-804, Gali No. 11, Sonia Vihar, Delhi. 2. Lalita Kapoor @ Laxmi W/o Kamal Kapoor R/o B-804, Gali No. 11, IInd Pushta, Sonia Vihar, Delhi. JUDGMENT
The facts in brief of the prosecution case are that accused Kamal Kapoor is husband of accused Laxmi @ Lalita Kapoor and they were residing at H.No. ________________Z_____________ Delhi as a tenant of Ms. ____X___, here in after referred to as the prosecutrix. Husband of the prosecutrix was working in Hindu Rao SC No.109/13 State vs. Kamal Kapoor & Anr. Page 1 of 28 Hospital as class IV employee. The behaviour of both the accused was good with Smt ____X___, initially but in the month of November 2006 at about 9 or 9.30 p.m. accused Laxmi @ Lalita Kapoor offered sweet meal of carrot (Gazar Ka Halwa) for eating to the prosecutrix. After eating the same the prosecutrix lost her consciousness. On next morning, she regained her consciousness and found herself naked and realized that accused Kamal Kapoor with the help of his wife Laxmi @ Lalita Kapoor committed rape on her. She tried to raise alarm but accused Kamal Kapoor told her that before raising alarm she should see the film prepared by him by his mobile phone and threatened her that he would show the film which was prepared while committing rape on her, to others. Due to that reason she could not could not tell this fact to anybody else including her husband. Under that threat accused Kamal Kapoor, in the absence of her husband, started making physical relationship with her. She became pregnant and a female child was born on 15.3.2008. When she solemnized the occasion of birth of a female child, the accused persons asked her that it could happen only due to physical relations made by Kamal Kapoor as her husband was not able to procure a child. They also demanded Rs. One lakh in cash and portion of 25 sq. yards of land out of her plot. She handed over Rs.25,000/- each in June 2007 & July SC No.109/13 State vs. Kamal Kapoor & Anr. Page 2 of 28 2007. She requested the accused persons not to exploit her and vacate her house. They demanded Rs. 50,000/- and accordingly she handed over Rs.50,000/- on 12.10.2009. The accused persons constantly demanding the money and she paid Rs.5,000/- or Rs.10,000/- on many occasions. When the prosecutrix could not bear the exploitation committed on her for commission of sexual intercourse and demand of money and demand of parting of portion of the plot, she narrated all the incident to her husband. The matter was reported to the police. FIR No. 112/10 u/s 376/384/506 IPC was registered at P.S. Sonia Vihar. Accused Kamal Kapoor was arrested on 26.9.2010. His arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. He also pointed out the place of occurrence and pointing out memo was prepared. On the same day he was taken to GTB Hospital for his medical examination. Doctor medically examined him and prepared his MLC and also took the samples and handed over the same to Ct. Sanjay Kumar who handed over the samples to IO and those were taken into possession vide seizure memo. The prosecutrix was got medically examined on 29.9.2010. Her samples were also taken and handed over to Ct. Sudesh who took the prosecutrix for her medical examination. She handed over the samples to the IO which SC No.109/13 State vs. Kamal Kapoor & Anr. Page 3 of 28 were taken into possession. Samples were initially deposited in police malkhana and subsequently those were sent to FSL. IO after recording of statements of witnesses, collecting of FSL result and after completion of investigation, filed a charge sheet against accused Kamal Kapoor for his trial for the offences punishable u/s 376/378/506/34 IPC. The name of accused Lalita Kapoor was mentioned in column No. 12 of the charge sheet. Ld. M.M. issued notice to IO to know status of accused Lalita Kapoor.
2. Co-accused Lalita Kapoor @ Laxmi was arrested on 26.9.2010. The IO filed a supplementary charge sheet against accused Lalita Kapoor. Both the charge sheets were consolidated vide order dated 18.02.2011.
3. Ld. M.M., after supplying of copies, committed this case to the court of sessions and it was assigned to Ms. Nisha Saxena, Ld. ASJ, North East, Karkardooma Courts, Delhi.
4. Vide order dated 10.05.2011, the Court was of the opinion that there was a prime facie case for framing of charge against accused Kamal Kapoor for his trial for the offences punishable u/s 376/384/34 IPC and against SC No.109/13 State vs. Kamal Kapoor & Anr. Page 4 of 28 accused Lalita Kapoor for the offences punishable u/s 376/109/384/34 IPC. Therefore, three charges against both the accused for the said offences were framed and read over to them in vernacular language. Accused persons pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, examined prosecutrix as PW1.
6. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
7. The prosecution also examined W.Ct. Sudesh as PW2; Ct. Rajinder as PW3; HC Rajesh as PW4; Dr. A.K. Gupta, Ex. CMO, GTB Hospital as PW5; Dr. Shagun Sinha, Ex. SR, GTB Hospital as PW6; ___Y____ as PW7; Dr. A.K. Srivastav, Dy. Director (Biology), DNA Unit, FSL, Delhi as PW8; Ct. Geeta Bhati as PW9; SI Mintu Singh as PW10; SI Rakesh Roshan as PW11; and Retd. SI Teg Bahadur as PW12.
8. After closing of prosecution evidence statement of both the accused persons were recorded u/s 313 of the SC No.109/13 State vs. Kamal Kapoor & Anr. Page 5 of 28 Code of Criminal Procedure, here in after referred as the Code. All the material and incriminating evidence was put to them. Both the accused persons admitted that they were residing as tenant in H.No. ______________________Delhi belonging to the prosecutrix and her husband PW-7 ___Y____ and that their tenanted room was situated adjacent to the room of the prosecutrix and there was a wall intervening and that even after vacating the tenanted premises they used to visit the house of the prosecutrix and that the prosecutrix made a call at 100 number in the month of January 2010 and that prosecutrix made a complaint EX.PW1/A to the police and that investigation of that case was assigned to PW-12 ASI Teg Bahadur on 30.6.2010 and that he sent the file for opinion vide letter EX.PW12/E and that on 27.12.2010 on the pointing out of the prosecutrix accused Lalita Kapoor @ Laxmi was arrested and her arrest memo EX.PW1/B and personal search memo EX.PW2/C were prepared and that on 30.01.2010 the matter was compromised with the intervention of Senior police officers and relatives.
9. In fact the prosecutrix was requesting him to have cohabitation at least once in order to have her future generation as her husband was not able to produce a child. He convinced her that it was not proper because in future SC No.109/13 State vs. Kamal Kapoor & Anr. Page 6 of 28 she and he may be defamed as these things are not hidden. The prosecutrix gave a writing to him on stamp paper of Rs.50/-. However, that paper was destoryed consequent upon settlement arrived between them on 30.01.2010. Thereafter, he made physical relations with the prosecutrix with her consent and with her will and subsequently a female child was born out of that relationship. Accused Kamal Kapoor pleaded that prosecutrix leveled false allegations against him regarding theft of her jewelery. Subsequently, he was being forced by the prosecutrix to continue sexual intercourse with her so that she may conceive a male child. This matter was come in the knowledge of his wife Smt. Lalita Kapoor @ Laxmi. She took a promise from him not to accede to the request of the prosecutrix as he refused to continue sexual intercourse with the prosecutrix so she filed a complaint against him and his wife.
10. Smt. Lalita Kapoor @ Laxmi pleaded that she was running a general store shop. ____X_____, her brother in law (devar) and her sister used to take goods without payment. One day a quarrel and altercation took place between them and consequently she made a false case against her.
SC No.109/13 State vs. Kamal Kapoor & Anr. Page 7 of 2811. In their defence accused persons examined HC Manoj Kumar as DW1.
12. After closing of defence evidence by the Ld. Counsel for both the accused, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
Commission of Rape
13. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, the prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; and secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
Commission of Sexual Intercourse with the prosecutrix by the prosecutrix
14. PW1 on this aspect deposed that both the accused present in the court approached her and they were residing as tenants in her house no.
______________Z______________ Delhi. Initially for a period of one year their behaviour was good towards her. One day her husband was on night duty at Hindu Rao Hospital. The accused Lalita Kapoor came to her at about 9 or 9.30 pm. SC No.109/13 State vs. Kamal Kapoor & Anr. Page 8 of 28 and asked her about the duty of her husband. She replied that her husband was on night duty. Accused Lalita Kapoor told her that she had prepared sweet meal of carrot (gajar ka halwa) and she offered the same to the prosecutrix to eat. After eating sweet meal of carrot brought by accused Lalita Kapoor, she lost her consciousness after 5-10 minutes. She regained her consciousness in the morning at about 5 or 5.30 a.m. and she saw that she was lying naked and both the accused persons were standing besides her. She realized that accused Kamal Kapoor raped her. She tried to raise hue and cry but accused Kamal Kapoor pressed her mouth and showed her a film made by them from mobile phone when she was being raped by him. Accused Kamal Kapoor threatened her that if she told the matter to anybody then he would show the film to all persons and also kill her adopted daughter and husband. Her room was adjacent to the room of the accused with a wall intervening. Whenever her husband used to go on duty accused Kamal Kapoor used to come to her room and used to rape her. She asked them as to what they wanted from her. Then the accused disclosed that they wanted a 25 sq. yard plot from her besides payment of Rupees One Lakh. She showed her inability to pay that amount and offered to pay them Rs.50,000/-. Due to repeated rape on her by accused Kamal Kapoor she became pregnant. She SC No.109/13 State vs. Kamal Kapoor & Anr. Page 9 of 28 was told by the accused that she had conceived because of them as she was not having child of her own. She also stated that after reporting the matter to the police she was also taken to GTB Hospital on 29.4.2010 for her medical examination. Sample for DNA test were also taken.
15. In cross examination she admitted that she was married to ___Y____ in the year 2000 and at that time she was aged about 25 years. It was her second marriage with ___Y____ and it was second marriage of ___Y____ also. She had married her second husband ___Y____ since her first husband used to consume liquor and he used not to earn anything. He had taken divorce from her socially. Her husband ___Y____ married her since his first wife left him. He was not having any child from his first wife. Soon after her marriage in the year 2000, she was residing at Malka Ganj, Delhi. She had shifted Sonia Vihar after 2-3 years of their stay at Malka Ganj. Accused persons were residing just opposite to her house and in the year 2005 they shifted in her house as tenants. She also admitted that she was medically fit to produce a child but her husband ___Y____ was medically unfit to produce child. Her husband also took medical treatment in the year 2003. Her husband was otherwise potent. The accused started exploiting her since 2006. When accused Lalita Kapoor left her room SC No.109/13 State vs. Kamal Kapoor & Anr. Page 10 of 28 after leaving her alone she did not close the door as she was having very good relations with them. She denied the suggestion that her husband ___Y____ used to beat her since she was unable to bear a child or that he used to tell her that she would have to leave the house if she did not bear a child. The accused persons told her husband that she conceived through test tube. She disclosed to her husband that baby was conceived by her because of accused Kamal Kapoor. She denied the suggestion that there was an agreement between them and accused persons that baby would be conceived to her with the help of accused Kamal Kapoor. However, she admitted that there was a contract between her and accused persons that if she conceived she would give one fourth of the plot on which they were living to Lalita Kapoor besides a cash of Rupees One Lakh.
16. PW-8 deposed that on 29.10.2010 three blood samples were collected in the office of FSL. The samples were marked to him for DNA profiling on 16.11.2010. He examined the blood samples and the DNA profiling and he was of the opinion that source of EX.1 i.e. blood sample of Kamal Kapoor and EX.2 i.e. blood sample of ____X_____ were biological father and mother of the source of EX.3 i.e. blood sample of baby Chhavi. He proved his report as SC No.109/13 State vs. Kamal Kapoor & Anr. Page 11 of 28 EX.PW8/A.
17. In his statement recorded u/s 313 of the Code accused Kamal Kapoor admitted that consequent upon the physical relationship between him and the prosecutrix a female child was born. Thus, the prosecution evidence coupled with the statement of accused has proved on record that accused committed sexual intercourse with the prosecutrix.
Sexual intercourse was committed with her against her will and without her consent
18. The testimonies of relevant witnesses have already been discussed and narrated here in above. After analysing the evidence on record I come to the conclusion that prosecution has failed to prove that accused committed sexual intercourse with the prosecutrix without her consent and against her will. The reasons which support my decision are firstly that the prosecutrix in her cross examination admitted that there was a contract between her and the accused persons Kamal Kapoor and Lalita Kapoor that if she got pregnant she would give 1/4th of the plot on which they were living to Lalita Kapoor besides a cash of Rupees One Lakh. The prosecutrix also admitted that her husband was unable to bear a child. Her SC No.109/13 State vs. Kamal Kapoor & Anr. Page 12 of 28 husband PW-7 also admitted in cross examination that her sperm count were less. These evidence provide benefit to the accused to show that the sexual intercourse by accused Kamal Kapoor with the prosecutrix was not committed without her consent and against her will.
Extortion
19. In order to prove its case for the offence of extortion punishable u/s 384 IPC the prosecution has to prove firstly, that the accused persons intentionally put the prosecutrix in fear of injury; and secondly, the accused persons dishonestly induced the prosecutrix to hand over more than Rs.1,00,000/- to them.
Putting the prosecutrix in fear of injury by the accused
20. PW-1 on this aspect deposed that when her husband used to go for his duty accused Kamal Kapoor used to come in her room and he used to rape her. He enquired from accused Kamal Kapoor as to what he wanted from her and why he was behaving in such a manner. The accused told her that he wanted a 25 sq. yards of plot from her and that she will also to pay them Rupees One Lakh. She told them that she was not in a position to pay Rupees One Lakh to them and she could manage only Rs.50,000/-. Since she was not having any child of her own and accused SC No.109/13 State vs. Kamal Kapoor & Anr. Page 13 of 28 had told her that she had conceived because of them. She paid Rs.25,000/- to both the accused in the month of June 2007 and also paid Rs.25,000/- in the month of June 2007. A girl child was born to them on 15.3.2008 and she again paid Rs.50,000/- to both the accused on 12.10.2009. Both the accused had also taken Rs.5,000/- or Rs.10,000/- from her since accused Kamal Kapoor was not doing anything and he used to force her to make expenses for his family and she used to make expenses due to fear and coercion. Since the accused persons were repeatedly asking money from her so she did not have any other option but to tell the entire episode to her husband. Her husband became angry.
21. In cross examination she admitted that there was a contract between her and both the accused persons namely Lalita Kapoor and Kamal Kapoor that if she got pregnant she would give 1/4th of plot on which they were living to Lalita Kapoor besides a cash of Rupees One Lakh. The prosecutrix denied the suggestion that she visited the parental house of Kamal Kapoor as she did not wish to disclose to her husband regarding sexual torture and harassment at the hands of accused persons. She further stated that she did not lodge the complaint against the accused persons prior to the registration of the present SC No.109/13 State vs. Kamal Kapoor & Anr. Page 14 of 28 case. She changed her testimony immediately and stated that she filed a complaint on 30.01.2010 against the accused since accused persons threatened her to extort money from her. She admitted that she compromised that matter on 30.02.2010 in the presence of police. The compromise was entered into under the pressure of brother in law (jija) of Lalita Kapoor who was a senior officer in Traffic Police. As the accused persons started passing on comments and threatening her after the said compromise so she consulted a lawyer and filed a complaint against them.
22. It has been argued on behalf of Ld. Defence Counsel that whatever amount was given to accused persons, it was given consequent upon a contract between the parties and it was not given because the prosecutrix was put under fear.
23. On the other hand, it has been argued on behalf of Ld. Addl. Public Prosecutor for state and Ld. Counsel for complainant that said contract was illegal and it should be treated as no contract at all.
24. I am convinced with the arguments of Ld. Addl. Public Prosecutor for state and Ld. Counsel for complainant SC No.109/13 State vs. Kamal Kapoor & Anr. Page 15 of 28 that the said contract was illegal and it was unenforceable in law because it was against the public policy and it was opposite to the law as per provisions of Section 23 of Indian Contract Act. However, if the parties have given any such amount that cannot be treated as an amount under duress or under putting the complainant/prosecutrix in fear. Thus, the prosecution evidence on record could not establish one of the ingredient of Section 384 IPC that the accused persons put the prosecutrix under fear and they dishonestly induced her to give Rupees One Lakh to them. Conversely the defence of accused persons seems to be convincing that said amount was paid to them as she wanted conceivement of a child from accused Kamal Kapoor.
Other reasons for decision: Delay in lodging the FIR
25. In addition to the reasons and discussion and evidence on record and particularly discussed here in above, the other reasons which support my decision that prosecution could not prove its case against both the accused persons beyond any reasonable suspicion and shadow of doubt for proving the case of offence of rape punishable u/s 376 IPC and offence of extortion punishable u/s 384 IPC, are firstly, that there is long unexplained delay in lodging of case against the accused persons.
SC No.109/13 State vs. Kamal Kapoor & Anr. Page 16 of 2826. The prosecutrix stated that her sexual exploitation was started in the month of November 2006 but the matter was reported to the police only in the year 2010. The reasons for delay has been shown that she did not want to bring the sexual exploitation, etc. of the prosecutrix by the accused in the notice of her husband. This explanation is not convincing. Long delay of about four years in reporting the matter to the police has created reasonable suspicion and shadow of doubt in the truthfulness of prosecution case.
27. My decision finds support by principles of law laid down in a case Jagdish v. State, (Delhi), 1987(1) R.C.R. (Criminal) 613 : 1987(1) AICLR 465, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 :- "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to police in respect of commission of an offence is to obtain early information regarding the circumstances SC No.109/13 State vs. Kamal Kapoor & Anr. Page 17 of 28 in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite after results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to."
Standard of proof of prosecution case
28. Secondly, the prosecution could not prove its case as per the standard required for proving case of rape and heinous offences.
29. My discussion finds support by a case Ashok Narang v. State, 2012 II AD (Delhi) 481. In that case of the prosecution was that the accused along with the co- accused (since declared a proclaimed offender) had in furtherance of a common intention kidnapped the victim from the lawful guardianship of her parents. They then wrongfully confined the victim in a shop where they SC No.109/13 State vs. Kamal Kapoor & Anr. Page 18 of 28 committed rape upon her. The accused was charged with the offences punishable under Sections 363/342/376 read with Section 34 of IPC. The Court convicted the Appellant based on the testimony of the victim. In appeal the Delhi High Court held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence. In other words, the prosecution was required to prove its case beyond reasonable doubt against the Accused in a criminal case and not merely dwell upon the shortcomings of the defence. The human semen and blood group found in the semen was not established to be of the accused. Also the prosecutrix was found to have given contradictory statements at different stages of the investigation and trial. There was a long distance between the phrase "may be true" and "must be true". It was difficult to rely on the sole testimony of the victim of sexual assault to convict the Accused. The appeal was allowed.
SC No.109/13 State vs. Kamal Kapoor & Anr. Page 19 of 2830. Thirdly, the prosecutrix herself admitted that a report against the accused on 30.01.2010 was lodged and that dispute was settled. PW-12 SI Teg Bahadur on this aspect deposed that on 30.6.2010 he was posted at P.S. Sonia Vihar as SI. On that day investigation of this case was handed over to him on the complaint of Smt. ____X___. He made enquiries and recorded the statement of ____X___ EX.PW12/A, ___Y____ EX.PW12/B, Kamal Kapoor EX.PW12/C and Lalita Kapoor EX.PW12/D. Thereafter the enquiry papers were sent to the prosecution for obtaining opinion vide letter dated 13.9.2010 EX.PW12/E.
31. DW-1 on this aspect deposed that DD No. 8A EX.DW1/DA was recorded by him as he received a call of quarrel from B-Block on 30.01.2010. He alongwith constable arrived at the spot i.e. B-Block where ____X___ met him and disclosed the facts as recorded in DD No. 8A and the matter was compromised.
32. On perusal of these documents, I find that these are silent about the commission of rape by accused Kamal Kapoor in connivance with his wife on the prosecutrix. This has further created doubt about the truthfulness of the case about commission of rape by accused Kamal Kapoor with the connivance and help of his wife Smt. Lalita Kapoor.
SC No.109/13 State vs. Kamal Kapoor & Anr. Page 20 of 2833. Fourthly, the conduct of the prosecutrix and nature of her testimony further creates doubt about the truthfulness of the prosecution case. Her testimony remained inconsistent, unreliable and unworthy of trust. She could not pass the test as laid down in case Pardeep @ Sonu v. State, 2011 [2] JCC 1031, wherein the Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
34. Fifthly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is SC No.109/13 State vs. Kamal Kapoor & Anr. Page 21 of 28 held that accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
35. Sixthly, the accused persons have succeeded in creating doubt in prosecution case so they are entitled to get benefit of doubt.
36. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
37. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused persons are given benefit of doubt as the prosecution has failed to prove its case against them beyond any reasonable suspicion or shadow of doubt.
Adultery
38. It would be appropriate to reproduce provisions SC No.109/13 State vs. Kamal Kapoor & Anr. Page 22 of 28 of Section 497 IPC which deals with the offence of adultery. These run as under:
"497 IPC. Adultery-Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both. In such case the wife shall not be punishable as an abettor."
39. In order to prove its case for the offence of adultery the prosecution has to prove firstly, that accused Kamal Kapoor knew that the prosecutrix was wife of another person i.e. ___Y____; secondly, that without the consent or connivance of ___Y____, accused Kamal Kapoor committed sexual intercourse with the prosecutrix; thirdly that commission of such sexual intercourse does not amount to offence of rape.
40. Turning to the present case, I find that PW-7, inter alia, stated that in the year 2009 his wife the prosecutrix told him that accused persons had tortured her. He informed the police by dialing number 100. During cross examination by Ld. Addl. Public Prosecutor he admitted that in his absence accused Kamal Kapoor after giving sweet meal of carrot raped her in the year 2008. He SC No.109/13 State vs. Kamal Kapoor & Anr. Page 23 of 28 was blessed with a daughter. In cross examination he admitted that sperm count of his semen were less. However he denied the suggestion that accused Kamal Kapoor did not commit rape on her and he had committed sexual intercourse with his wife only with her consent or that a girl child was born due to that relationship.
41. There is no cross examination on behalf of accused Kamal Kapoor that PW-7 ___Y____ either gave his consent or he was in connivance with his wife for the sexual intercourse with her. As mentioned above, accused in his statement u/s 313 of the Code stated that In fact the prosecutrix was requesting him to have cohabitation at least once in order to have her future generation as her husband was not able to produce a child. He convinced her that it was not proper because in future she and he may be defamed as these things are not hidden. The prosecutrix gave a writing to him on stamp paper of Rs. 50/-. However, that paper was destoryed consequent upon settlement arrived between them on 30.01.2010. Thereafter, he made physical relations with the prosecutrix with her consent and with her will and subsequently a female child was born out of that relationship.
42. Thus, on the basis of evidence on record, it SC No.109/13 State vs. Kamal Kapoor & Anr. Page 24 of 28 stands established that the accused Kamal Kapoor was aware that the prosecutrix was not his wife. There was no consent of ___Y____ for sexual intercourse by him with the prosecutrix. The sexual intercourses as discussed here in above do not amount to commission of rape. Thus, it stands proved that accused Kamal Kapoor committed offence of adultery u/s 497 IPC.
43. Now, it has to be seen whether the accused may be held guilty and convicted for the offence of adultery of the prosecutrix without framing a formal charge against the accused.
44. In this regard it would be appropriate to refer provisions of Section 222 of the Code which run as under:
"222.When offence proved included in offence charged.--(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions SC No.109/13 State vs. Kamal Kapoor & Anr. Page 25 of 28 requisite for the initiation of proceedings in respect of that minor offence have not yet been satisfied."
45. My attention also goes to a case Shamnsaheb M. Multtani v. State of Karnataka, 2001 SCC CRI 358 wherein the Apex Court had an occasion to deal with Section 222 of the Code. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available.
46. In view of the provisions of Section 222 of the Code and the principles of law laid down in case Tarkeshwar Sahu v. State of Bihar, (supra), it is held that accused can be held guilty and convicted for the lighter offences if the charge has been framed for grave offence.
47. The other reasons which support my decision that accused Kamal Kapoor committed adultery on the prosecutrix are firstly, that delay in reporting the matter to the police has become immaterial when the accused himself admitted that he committed sexual intercourse with the prosecutrix several times and out of that a female baby was born.
SC No.109/13 State vs. Kamal Kapoor & Anr. Page 26 of 2848. Secondly, neither it was pleaded nor there is cross examination of PW-7 husband of the prosecutrix that he either gave his consent or he was in connivance with his wife prosecutrix for conceiving a child from accused Kamal Kapoor. Thus, husband of the prosecutrix was totally unaware about the relationship between his wife and accused Kamal Kapoor.
49. Thirdly, the testimony of defence witness has failed to create any reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case so far as commission of offence of adultery is concerned or to prove the defence of the accused that he was falsely implicated by the complainant in connivance of her husband.
50. Fourthly, the complaint EX.PW11/A was signed by both Sh. ___Y____ Singh, husband of the prosecutrix and the prosecutrix, therefore, the provisions of Section 198(2) of the Code stand satisfied.
51. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of SC No.109/13 State vs. Kamal Kapoor & Anr. Page 27 of 28 Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396.
CONCLUSION
52. Consequent upon the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt against both the accused i.e. Kamal Kapoor and Lalita Kapoor that they both or either of them committed offence of rape punishable u/s 376 IPC or offence of extortion punishable u/s 384 IPC. Therefore, both the accused are acquitted for the offences punishable u/s 376/384 IPC.
53. It is further held that prosecution evidence on record has proved beyond reasonable suspicion and shadow of doubt that accused Kamal Kapoor committed offence of adultery. Therefore, he is held guilty and convicted for the offence of adultery punishable u/s 497 IPC. He is on bail. He be taken into judicial custody.
Announced in the Open Court Dated:17.05.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.109/13 State vs. Kamal Kapoor & Anr. Page 28 of 28 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC No.109/13 State vs. Kamal Kapoor FIR No.112/10 PS Sonia Vihar State Versus Kamal Kapoor ORDER ON SENTENCE 21.05.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused in J.C. Sh. Satish Sharma Advocate for the convict/accused.
Sh. Sanjay Rajpal Advocate for the complainant with Sh. ___Y____, husband of the complainant. I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict is aged about 42 years; he belongs to a poor family; he has two minor children in the age group of 9 to 15 years of age to maintain; he has no other family member to look after his children; he is the only bread earner in the family; he has no previous criminal record; he has already been in jail for about 15 SC No.109/13 State vs. Kamal Kapoor & Anr. Page 29 of 28 months; and if he is again sent to jail his life and life of his children may be ruined. It has been prayed that lenient view in sentence may be taken and accused may be released on the sentence which he has already undergone. It has also been argued that accused may be given benefit of Probation of Offenders Act.
3. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that deterrent punishment may be awarded to the accused as the lenient view is undesirable and it goes against the society. It has also been argued that it would not be proper to release the accused on Probation keeping in view the breach of trust he has committed with the complainant.
4. Keeping in view the submissions and all relevant factors and circumstances in which the accused committed crime, it would be just and appropriate if moderate view in sentence is taken. However, keeping in view the nature of crime he has committed, it would not be just fair and appropriate to release the accused on probation of good conduct as provided U/Section 360 of the Code and Section 4 of the Probation of Offenders Act, 1958.
5. Accordingly, convict/accused Kamal Kapoor is SC No.109/13 State vs. Kamal Kapoor & Anr. Page 30 of 28 sentenced to undergo rigorous imprisonment for 3 years and he is further sentenced to pay a fine of Rs.20,000/- in default simple imprisonment for 9 months for the offence punishable under section 497 IPC.
6. It is further ordered that if convict/accused Kamal Kapoor has undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C.
7. The convict/accused Kamal Kapoor be sent to imprisonment to serve the sentence.
8. A copy each of judgment and order on sentence is supplied to convict/accused Kamal Kapoor free of cost.
File be consigned to Record Room.
Announced in the Open Court Dated:21.05.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.109/13 State vs. Kamal Kapoor & Anr. Page 31 of 28