State vs Venktanjaneya Partap Singh. -:: Page 1 ... on 28 July, 2014

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Delhi District Court

State vs Venktanjaneya Partap Singh. -:: Page 1 ... on 28 July, 2014

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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number : 69 of 2013.
Unique Case ID Number : 02401R044081011.

State

versus

Mr. Venktanjaneya Partap Singh
Son of Mr. Bindeshwari Parshad Singh,
Resident of Village Hari Har Pur, PO Karai Heer Shah,
PS Munshi Ganj, Distt Chatterpati Shahuji,
Maharaj Nagar, UP.

First Information Report Number : 57/11
Police Station Hari Nagar
Under section 376/306 of the Indian Penal Code.

Date of filing of the charge sheet before : 20.09.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 26.09.2011.
in the Sessions Court
Date of transfer of the file to this Court : 28.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 28.07.2014.
Date of judgment : 28.07.2014.

Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr.Rajiv Taneja.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.

Sessions Case Number : 69 of 2013.
Unique Case ID Number : 02401R044082011.
FIR No. 57/11, Police Station Hari Nagar,
Under sections 376/306 of the Indian Penal Code.
State versus Venktanjaneya Partap Singh. -:: Page 1 of 47 ::-
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JUDGMENT

"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.

1. This case falls in the list of twenty oldest cases pending before this Court and is listed at serial number 9. A sincere endeavour has been made to dispose this case as expeditiously as practically possible.

2. This is a case of an unfortunate unnatural death of a young girl aged 19 years and it is alleged that the accused had physical relations with her on a false assurance of marriage and had abetted her suicide.

PROSECUTION CASE

3. Mr. Venktanjaneya Partap Singh, the accused, has been charge sheeted by Police Station Hari Nagar, Delhi for the offence under sections 376 and 306 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that sometime during period of four years prior to 23.02.2011, he had raped the deceased (name mentioned in the file but withheld to protect her identity) (hereinafter referred to as the prosecutrix) at his house 1/36, Press Colony, Rajouri Garden, Delhi and he had instigated and abetted her to commit suicide which she attempted Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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by firstly drinking acid and then pouring petrol on her and setting herself on fire in her house (address mentioned in the file but withheld to protect the identity of the deceased prosecutrix) within the jurisdiction of Police Station Hari Nagar and subsequently expired on 03.03.2011.

4. Initially the FIR was lodged under section 309 of the IPC. Later, after the death of the prosecutrix on 03.03.2011 and after obtaining legal opinion, sections 306 and 376 of the IPC were added.

CHARGE SHEET AND COMMITTAL

5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 20.09.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 26.09.2011 of the learned Sessions Judge, West, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 28.01.2013 vide circular number 20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013 of the learned District and Sessions Judge, Delhi.

CHARGE

6. After hearing arguments, charge for offence under sections 376 and 306 of the IPC was framed against the accused Mr.Venktanjaneya Partap Singh by the learned predecessor on 09.12.2011.

Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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PROSECUTION EVIDENCE

7. In order to prove its case, the prosecution has examined as many as 29 witnesses i.e. Mr. Rajesh Chopra, father of prosecutrix as PW1; Mr. Ravi Chopra, uncle of prosecutrix as PW2; Ms. Babita, mother of prosecutrix as PW3; Ms. Mona, friend of prosecturix as PW4; Mr. Rama Shanker Pandey, neighbour of accused as PW5; Mr. Rameshwar Dass, who is the DD writer as PW6; Mr. Amit Kumar, colleague of the prosecutrix and the accused as PW7; Mr. Israr Babu, Nodal Officer as PW8; Mr. Raj Kumar Singh, colleague of the prosecutrix and the accused as PW9; ASI Azad Singh, Mobile Crime Team as PW10; HC Dhyan Singh, who received the information the prosecutrix commit suicide and admit in the hospital as PW11; Mr.Vicky, colleague of the prosecutrix and the accused as PW12; Mr. Aji C.V, colleague of the prosecutrix and the accused as PW13; HC Fateh Chand, who is the duty officer who had recorded the FIR of the case is PW14; Dr. Alok Kumar, who had examined the prosecutrix and proved the MLC as PW15; Dr.Santosh Kumar, who had deputed in place of Dr.Sabreena Majeed to prove the post mortem report no. 229/11 dt.04.03.2011 as PW16; Dr. Bhavna who had deputed in place of Dr.Manish Kumar to prove the MLC report of prosecutrix as PW 17; HC Kaushlender, who recorded the DD No.27A as PW18; HC Sanjay Kumar, who is the MHC(M) is PW19; HC Brahm Singh, who got verified the permanent address of accused as PW20; Ct.

Ajay Kumar, who recorded DD No.7PP as PW21; Ct. Sanjay, witness of investigation as PW22; Ct. Kishan Lal, who had taken the sealed parcels to the FSL is PW23; Mr. Manish Kumar, colleague of the prosecutrix and the accused as PW24; Ct. Satyanarayan, witness of investigation as Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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PW25; SI Ashok Kumar, the investigation officer as PW26; Mr. M.L.Meena, Scientific Officer, who had proved the FSL reports, is PW27; Mr. Gyanender Singh, Finger Print Expert, who has proved the finger print report as PW28 and Dr. Avdhesh, who had assessed prosecutrix regarding her fitness for statement as PW29.

8. The accused has preferred not to cross examine PWs 4, 5, 10, 13, 15, 16, 17, 27, 28 and 29 and therefore their evidence as well as the documents proved by them can be presumed to have been admitted as correct by the accused since their evidence remains uncontroverted and unrebutted.

STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.

9. In his statement under section 313 of the Cr.P.C., accused Venktanjaneya Pratap Singh has controverted and rebutted the entire evidence against him submitting that he was working as a Supervisor in Citi Collections Company where the prosecutrix also used to work as a tele caller. Apart from them, there were many other boys and girls employed for various works some of whom were Mr.Manish, Mr.Vicky, Mr.Amit, Mr.Raj Kumar, Ms.Mona, Ms.Dimple, Ms.Pooja etc. All of them used to be on friendly terms and during holidays and leisure time they used to go for lunch, movies etc. He did not know anything regarding why the prosecutrix tried to end her life. He came to know later on that she used to like him and on objections from her parents, she took the extreme step of trying to end her life. This was a very unfortunate Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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incident in which he had no part to play. He also came to know later on that since the prosecutrix was an earning member of her family and was helping her household financially her parents did not want to marry her off due to which she remained frustrated. Although they were good friends and colleagues, they never went out alone and were always surrounded by other friends and colleagues. He had joined the investigation many times but once on calling of the I.O, he had gone to the police station where to his shock, he was arrested after considerable time of the incident. He is absolutely innocent. He has not committed any offence nor has done any wrong. He is suffering for no fault of his. None of the public/ independent witnesses have deposed anything against him. He has preferred not to examine any witness in his defence.

ARGUMENTS

10. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused.

11. The Additional Public Prosecutor for the State has requested for convicting accused Mr.Venktanjaneya Pratap Singh for having committed the offence under sections 376 and 306 of the IPC as the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable. The three dying declarations of the prosecutrix are in continuity and the role of the accused is clearly elaborated. The investigation Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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conducted in the case also proves that the accused is guilty of the charged offences.

12. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There are several glaring inconsistencies and contradictions revealed in the evidence of the parents of the deceased prosecutrix. The first two dying declarations of the prosecutrix are correct but the so called third dying declaration is manipulated and fabricated in order to falsely implicate the accused. The colleagues of the prosecutrix and the accused have not supported the prosecution case and had turned hostile. The story of the prosecution is so full of improbabilities, contradictions and untrustworthy that it is hard to believe.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

13. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

14. Under this sphere, I now proceed to test the submissions of both the sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS PROVED IN EVIDENCE

15. The prosecution story unveils with Mr. Rajesh Chopra (PW1) bringing his daughter (name mentioned in file but withheld to protect her identity) while she was still alive after attempting suicide by first drinking acid and then pouring petrol on herself and setting herself on fire her, to Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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DDU hospital, Hari Nagar and got her admitted. On 25.02.2011, an information was received from duty officer that a girl had tried to commit suicide and was admitted in bed no. 4 ward no.2 RML Hospital and she wanted to give her statement and request for sending an IO had been made and HC Dhyan Singh (PW11) had made the relevant DD entry i.e. 27 A (Ex.PW11/A). On 24.02.2011, the prosecutrix was taken by her father (PW1) to the DDU hospital at about 12.55 midnight with the history of self inflicted burn after putting on petrol and ingestion of acid as told by prosecutrix where she was medically examined by Dr. Alok Kumar (PW15) vide MLC (Ex. PW15/A). On 24.02.2011, Ct. Surender gave information from DDU hospital that one injured Ms. Lovely Chopra (prosecutrix) was admitted by her father in the burnt condition and said information was recorded by Ct. Ajay Kumar (PW21) and true copy of the same is (Ex.PW21/A). On 25.02.2011, an information was received that a girl friend of caller had tried to commit suicide and she wanted to give her statement who is under treatment at RML hospital and said call was recorded vide DD no.27A (Ex. PW18/A). The call was marked to HC Kaushlender (PW18) on which he along with Ct. Rajiv() went to RML hospital. At DDU hospital IO/ASI Ashok Kumar (PW26) reached and had recorded the statement (Ex.PW1/A) of the prosecutrix in the presence of her parents Mr. Rajesh Chopra (PW1) and Ms. Babita Chopra (PW3) on moving an application for recording the statement of prosecutrix (Ex.PW26/A) and doctor certified that prosecutrix was fit for statement and after that statement (Ex.PW1/A) of prosecutrix was recorded in the presence of her parents. On 24.02.2011 at DDU hospital, Dr. Avdhesh (PW29) had medically examined the prosecutrix regarding Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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her fitness for statement and found her fit to give statement at that time and same is (Ex. PW29/A).

16. On 25.02.2011, at about 10.00 -10.30 p.m, one boy namely Mr.Amit (PW-7), colleague of the prosecutrix was also in the hospital and called the police and the police had again recorded the statement of the prosecutrix. On 25.02.2011 an information was received by IO SI Ashok Kumar from RML hospital that the prosecutrix wanted to give her statement again (Ex.PW6/A) and copy of the same was duly attested by SHO and ACP (Ex.PW26/B1) and Ct. Rameshwar Dass (PW6) recorded this message in daily diary vide DD no.32 (Ex.PW6/B).

17. On 04.03.2011, Mr. Amit Kumar (PW7) had given complaint (Ex.PW7/A) to the police. On 01.03.2011, the prosecutrix told Mr. Rajesh Chopra (PW1) and Ms. Babita Chopra (PW3) that she was in love with the accused and he also used to work in the same company and he maintained physical relations with her on the pretext of marriage but on 23.02.2011 in the afternoon when the prosecutrix came to know that the accused was getting married with some other girl, which he refused, and later on, admitted to be correct. The prosecutrix had asked the accused as to why he had spoiled her life to which he said, Zindagi Kharab Ho Gai Hai, To Atam Hatya Kar Le, Zahar Khaa Le, Aur Agar Muh Khola, To Tujhe Jaan Se Maar Doonga". On the dictation of the prosecutrix, the facts were reduced into writing by Mr. Rajesh Chopra (PW1) and prosecutrix had put her thumb impression on the same and said complaint (Ex.PW1/B) was running into two pages.

Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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18. On 03.03.2011 at about 5.45 -6.00 p.m, the prosecutrix expired and the statement (Ex. PW1/C) of Mr. Rajesh Chopra (PW1) was recorded regarding identification of dead body and handing over the same vide memo (Ex.PW1/D). The prosecutrix had told her father (PW1) that the accused was residing at Press Colony, Rajouri Garden and he had committed "Galat Kaam" upon her after taking her to his house at Press Colony, Rajouri Garden in the absence of his parents. At the time of recording (Ex.PW1/B) by Mr. Rajesh Chopra (PW1) as per version of prosecutrix, she was fit for statement (Hosho Hawas Mein Thee). The statement (Ex.PW3/A) of the prosecutrix was recorded in RML hospital, was signed by her mother Ms. Babita (PW3) and the prosecutrix had also put her thumb impression. The prosecutrix had told Ms. Babita (PW3) in the hospital that one boy namely Partap i.e. the accused who was working in the same company where she was working, was going to marry with other girl and she had also told this fact was told to her by her (the prosecutrix) other colleagues working in the same company. Prosecutrix had also told her mother (PW3) that the accused told her that 'Main Tujhe Jaan Se Maar Doonga Aur Atamhatya Kyon Nahi Kar Leti". The prosecutrix also told Ms. Babita (PW3) that the accused had made physical relation with the prosecutrix on the pretext that he will marry with her.

19. IO/SI Ashok Kumar along with Ct. Satya Narayan went to the spot i.e. the house of the prosecutrix where her uncle Mr. Ravi Chopra (PW2) was found present and scene of crime was inspected by the crime Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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team and photographs of the spot were taken. ASI Azad Singh (PW10) prepared crime team report (Ex.PW10/A). In one room of the house, two bottles of toilet cleaner were lying on the bed, one filled up completely and other was half filled and were seized vide seizure memo (Ex.PW25/A) and thereafter two bottles containing acid (Ex.P-1 collectively), one burnt plastic bottle (Ex.P-4), one half burnt umbrella(Ex.P-2) and one match box with unburnt match sticks (Ex.P-3 collectively) were taken into separate pullandas and were seized vide seizure memo (Ex.PW2/A).

20. The rukka (Ex. PW26/B) was prepared and handed over to Ct. Satya Naryan (PW25) for lodging of the FIR. The FIR (Ex. PW 14/A) was recorded by HC Fateh Chand (PW14). The site plan (Ex.PW26/C) was prepared at the instance of Mr. Ravi Chopra (PW2).

IO/SI Ashok Kumar recorded the statement (Ex. PW3/A) of prosecutrix in DDU hospital in the presence of her mother Ms. Babita (PW3). On 01.3.2011 IO/SI Ashok Kumar (PW26) received an application (Ex. PW1/B) by father of the prosecutrix (Mr. Rajesh Chopra-PW1) addressed to SHO, PS Hari Nagar and found that there were allegations against the accused. The prosecutrix was examined by Dr. Manish Kumar (who had since left the services of hospital) in the Department of Plastic Surgery at DDU hospital as the prosecutrix was having burn injuries which was proved by Dr. Bhawna (PW17). On 03.03.2011, an information regarding death of prosecutrix was received vide DD no. 32 (Ex PW6/B) and dead body of the prosecutrix was sent to mortuary, DDU hospital and statements of Mr. Rajesh Chopra (PW1) and Mr. Bhusan Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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Arora with regard to the identification of dead body of the deceased was recorded (Ex.PW1/C and Ex. PW26/D). The postmortem of the prosecutrix (since deceased) was conducted and after that dead body was handed over to father of the deceased (PW1) vide receipt (Ex. PW1/D).

21. On 04.03.2011, four applications (Ex. PW7/A Ex. PW9/C and Ex. PW12/A, Ex. PW24/A) written by four colleagues of the prosecutrix namely Mr. Amit Kumar (PW7), Mr. Raj Kumar Singh (PW9), Mr. Vicky (PW12) and Mr. Manish Kumar (PW24) in which prosecutrix had told certain facts to prior to her death were received by the father of the prosecutrix. On 17.09.2011 the police of PS Hari Nagar had come to the office of the company to ascertain about the employment of prosecutrix and the accused on which Mr. Aji C.V (PW13) had issued the certificate on the letter head of company confirming that the prosecutrix was an employee of the company during the period w.e.f.

16.04.2009 to 23.03.2011 and the accused were an employee of the company during the period w.e.f. 20.08.2004 to 25.02.2011 and certificate is (Ex. PW13/A). IO/ASI Ashok Kumar had visited the house no. 1/36 Press Colony, Rajouri Garden as this address was mentioned in the statement of prosecutrix and one invitation card of marriage has been produced by occupant of the house Mr. Ram Shankar Pandey stating that he was invited to the marriage of the accused and his statement was recorded (Ex.PW26/E). IO/SI Ashok Kumar had sent HC Brahm Singh (PW20) to the native village of the accused i.e. Village Hariharpur, District Chaarpati Sahu Ji Maharaj Nagar (U.P) for the verification of his marriage and address and one marriage card (Ex.PW20/A) was given to Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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HC Brahm Singh by the father of the accused. On 23.06.2011, IO/SI Ashok Kumar had visited the residence of Ms. Mona (PW4) who was the colleague of the prosecutrix and the accused and statement of Ms. Mona under section 161 Cr.P.C. was recorded (Ex. PW26/G). In statement (Ex.PW26/G) of Ms. Mona (PW4) had stated that the prosecutrix had sent message on her mobile prior to her death that 'Mere Gunahgar ko saja jaror dilana' and Ms. Mona, friend of prosecutrix, had also stated regarding the relationship between the accused and the prosecutrix. The accused was arrested vide arrest memo (Ex. PW22/A) and his personal search was taken vide personal search memo (Ex PW22/B) and his disclosure statement (Ex.PW22/C) was prepared. IO/SI Ashok Kumar (PW26) had examined Mr.Amit Kumar (PW7), Mr.Raj Kumar (PW9), Mr.Vicky (PW12) and Mr.Manish Kumar (PW24) and recorded their statements.

22. On 24.02.2011 three sealed pullandas with the seal of AKS and one acid bottle pullanda were deposited in the malkhana vide serial no. 2975 in register no.19 (Ex.PW19/A). On 23.06.2011, the personal search articles of the accused were deposited in malkhana by ASI Ashok vide serial no. 3250 in register no. 19 (Ex.PW19/B). On 01.07.2011, four sealed pullandas with the seal of AKS were sent to FSL, Rohini through Ct. Kishan Lal vide RC no. 79/21/11 (Ex.PW19/C) and Ct. Kishan Lal handed over the acknowledgement receipt (Ex.PW19/D) of the deposit of sample at FSL office. On 01.07.2012, Ct. Kishan Lal (PW23) deposited four sealed pullandas vide RC no. 79/21/11 and deposited in the office of FSL, Rohini. The exhibits of this case were sent to the office of FSL, Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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Rohini and were examined by Mr. M.L Meena, Senior Scientific Officer (Chemistry) (PW27) vide his report (Ex.PW26/X1). The thumb impressions of the prosecutrix on the application was submitted by her father (PW1) were got compared with thumb impression on two other statements of prosecutrix as well as thumb impression on the MLC through expert from Finger Print Bureau and report (Ex.PW26/L) was prepared by Mr. Gyanendar Singh (PW28).

23. The prosecutrix had sent a message on the mobile phone of the accused that she is going to commit suicide but the accused had not replied the same and on the analysis of call detail record (Ex.PW8/G) proved by Mr. Israr Babu (PW8) which was collected by IO /SI Ashok Kumar, it was clear that on 23.03.2011 at about 23.35 hrs., one SMS from the mobile phone of prosecutrix was sent on the mobile phone of the accused. Mr. Israr Babu (PW8) had brought the record pertaining to mobile phone number 9811533558 and produced the photocopy of the customer application form (Ex.PW8/A), photocopy of driving licence (Ex.PW8/B), CDR of the mobile (Ex.PW8/C), certificate regarding authenticity of this mobile phone (Ex.PW8/D) and also brought the record of mobile no. 9953622645 and photocopy of customer application form (Ex.PW8/E), photocopy of election card (Ex.PW8/F), CDR of the mobile (Ex.PW8/G) and certificate regarding authenticity of mobile (Ex.PW8/H). The information regarding the residential address and mobile contact number of accused was provided by Mr. Sunil Bhatia of Manager of the company of the accused in writing (Ex.PW26/M and Ex. PW26/N). The postmortem of the prosecutrix was conducted at DDU Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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hospital by Dr. Sabreen Majeed (who had since left the services of hospital) vide postmortem report no. 229/11 dated 04.03.211(Ex.PW16/A) which was proved by Dr. Santosh Kumar (PW16).

24. The allegations against the accused are that sometime during period of four years prior to 23.02.2011, he had raped prosecutrix at his house 1/36, Press Colony, Rajouri Garden, Delhi and he had instigated and abetted the prosecutrix to commit suicide which she attempted by firstly drinking acid and then pouring petrol on her and setting herself on fire in her house and subsequently expired on 03.03.2011.

IMPORTANT ISSUES

25. The important issues and the points in dispute are being discussed hereinafter.

TESTIMONIES OF THE PARENTS OF THE DECEASED PROSECUTRIX

26. At the outset, it is necessary to discuss and analyse the testimonies of the parents of the deceased prosecutrix who are the most material witnesses of the prosecution.

27. PW1, Mr.Rajesh Chopra, father of prosecutix, has deposed that his daughter/prosecutrix used to work at City Collection India Private Limited, Janakpuri. In the intervening night of 23/24.02.2011, first his daughter/prosecutrix consumed acid, thereafter she set her on fire on the Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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roof of his house. He took her to DDU Hospital, Hari Nagar and got her admitted there. At DDU Hospital, ASI Ashok of local police arrived and had recorded the statement of his daughter (Ex.PW1/A) in his presence and in the presence of his wife, Ms.Babita Chopra. From DDU hospital, his daughter was referred to RML hospital. On 25.02.2011, at about 10 or 10.30 pm, he left the hospital and his wife was there at the hospital along with prosecutrix. One boy namely Mr.Amit, colleague of his daughter, was also there. He called the police by dialing number 100. Police arrived there and again recorded the statement of her daughter. In this regard, his wife had told him. On 01.03.2011, he and his wife were present at RML Hospital along with his daughter. On that day, his daughter told him that she was in love with one persona namely Partap who also used to work in the same company and Partap regularly maintained physical relations with her on the pretext of marriage but on 23.02.2011 in the afternoon, when she came to know that Partap is getting married with some other girl, she asked Partap as to whether he is going to marry with some other girl, to which initially Partap refused and later on admitted that yes, he is going to marry. His daughter asked Partap as to why he had spoiled her life, to which Partap said "Zindagi Kharab Ho Gai Hai, To Atm Hatya Kar Le, Zahar Khaa Le, Aur Agar Muh Khola, To Tujhe Jaan Se Maar Doonga". On the dictation of his daughter, the abovesaid facts were reduced by him in writing in his own hand and his daughter put her thumb impression on the same at two places and he also signed the same. The said letter/complaint which was written by him on the dictation of his daughter running in two pages (Ex.PW1/B) bearing thumb impression of his daughter. On that day i.e. 01.03.2011, no one else was there except Sessions Case Number : 69 of 2013.

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himself, his wife and his daughter/prosecutrix. On 03.03.2011 at about 5.45 or 6.00pm, his daughter expired. On 04.03.2011, he identified the dead body of his daughter at Mortuary and after postmortem, he received her dead body. His statement regarding identification of dead body (Ex.PW1/C) and the dead body handing over memo (Ex.PW1/D) were prepared. He had not seen accused Partap as such he can not identify him.

He had written Ex.PW1/B as per the version given by his daughter/prosecutrix. His daughter had told him that the said Partap Singh is residing at Press Colony, Rajouri Garden. She also told him that accused Partap Singh had committed "Galat Kaam" upon her (prosecutrix) after taking her to his house at Press colony, Rajouri Garden in the absence of his parents. At the time of recording of Ex.PW1/B by him, as per her version, prosecutrix i.e. his daughter was fit for statement (Hosho Hawas Mein Thee).

28. PW3, Ms. Babita, mother of prosecutix, has deposed that the prosecutrix since deceased was my daughter. At the time of incident, she was doing job in City Collection India Private Limited, Janakpuri. On the night intervening 23/24.02.2011, her daughter had set herself on fire on the roof of her house. She was taken to DDU Hospital by her husband and thereafter she was referred to RML Hospital, Delhi. Her daughter was having burn injury on her hands and other parts of the body and therefore she was not able to write, however, she was in fit state of mind and was speaking properly. The statement of her daughter was written by her husband Mr. Rajesh Chopra as per dictation and version given by her injured daughter and thereafter the said statement was signed by her Sessions Case Number : 69 of 2013.

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husband and her daughter had put her thumb right impression on the same. Her daughter did not give any statement in DDU Hospital in her presence. The statement of her daughter was recorded by the police only in RML Hospital and the said statement was signed by her and her daughter had put her right thumb impression on her statement (Ex.PW3/A). Her injured daughter had told her in the hospital that one boy namely Partap who is working in the same company where she was working, is going to marry with other girl and she also told her that this fact was told to her by her other colleagues working in the same company. Her daughter also told her that as Partap had ruined her life (Meri Zindagi Barbad Kar Di) and when she asked Partap, what will happen with her in future "Mera Kaya Hoga". On this fact, Partap had told her that "Main Tuje Jaan Se Maar Doonga Aur Atamhatya Kyon Nahi Kar Leti". She also told her that accused Partap had made physical relation with her on the pretext that he will marry with her. Accused Venketanjaneya Partap Singh was not known to her prior to the incident. IO recorded her statement in this regard.

29. As per the prosecution, there are three dying declarations of the prosecutrix i.e. Ex.PW1/A on 24.02.2011, Ex.PW3/A on 25.02.2011 and Ex.PW1/B on 01.03.2011. She expired on 03.03.2011.

30. PW1 has deposed that the statement of the prosecutrix, Ex.PW1/A, was recorded by the IO in DDU Hospital in the presence of PWs 1 and 3. PW3/A was recorded in RML Hospital by the IO in the presence of PW3 and he (PW1) had already left the hospital. PW1/B was Sessions Case Number : 69 of 2013.

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written by him (PW1) on the dictation of his daughter and he also put his signatures on the same. His wife (PW3) was also there. However, in his cross examination, he has deposed that "The first statement given by my daughter was in my presence. No magistrate was present at that time of recording of the statement. I was informed that the IO had recorded the statement of my daughter on 25.02.2011 but I was not present. My wife had informed me about the same. ..........I do not know anything about the first two statements of my daughter. .....At the time when she had made her statement on 01.03.2011 the police official was not present but he had instructed to me to take down the statement in writing. I did not call any doctor as there was no doctor present at that time. My daughter was in ICU when I had recorded her statement. I had recorded the statement at about 2.30 to 3.00pm. There was nobody present (doctor, nurse or ward boy) in the ICU. Except my wife, nobody else was present....."

31. When PW1 has deposed that he did not know anything about the first two statements of his daughter, the same would indicate that he was not present when Ex.PW1/A and Ex.PW3/A were recorded. Admittedly, he was not present when Ex.PW3/A was recorded.

32. PW3 has deposed that "No police officer visited DDU Hospital." If this was the situation, then Ex.PW1/A could not have been recorded.

33. As regards Ex.PW1/B (third and the most important dying Sessions Case Number : 69 of 2013.

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declaration), when PW1 has deposed that the police official was not present but he had instructed to him to take down the statement in writing, the same indicates that the IO was aware that the prosecutrix wanted to make a fresh statement on 01.03.2011 but the IO did not bother to go inside the hospital and meet the prosecutrix and record her statement after taking fitness certificate from the doctor, as he had done at the time of recording of Ex.PW1/A and Ex.PW3/A.

34. Now coming to the evidence of the mother of the prosecutrix (PW3), she has deposed that the statement of her daughter was written by her husband Mr. Rajesh Chopra as per dictation and version given by her injured daughter and thereafter the said statement was signed by her husband and her daughter had put her thumb right impression on the same. Her daughter did not give any statement in DDU Hospital in her presence. The statement of her daughter was recorded by the police only in RML Hospital and the said statement was signed by her and her daughter had put her right thumb impression on her statement (Ex.PW3/A).

35. PW3, in her cross examination has deposed that "My statement was recorded by police officer namely Mr. Ashok Kumar on 24.02.2011 at RML Hospital. My statement was not recorded at DDU Hospital. I had signed my statement. My daughter had affixed her thumb impression on the statement (Ex.PW3/A) but I do not remember if the thumb impression was of right hand or left hand. I had also accompanied my husband and my daughter to the DDU Hospital. No Sessions Case Number : 69 of 2013.

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police officer visited DDU Hospital........... I did not ask anything from my daughter at that time as her condition was not good and we were also shocked due to the incident. My daughter was shifted from DDU Hospital to RML Hospital as the facilities at DDU hospital were not available. My husband was also present with me at the time of the statement of my daughter Ex.PW3/A. I do not remember as to who recorded statement (Ex.PW3/A). I do not remember if any doctor was present near the bed of my daughter in the hospital when the statement of my daughter Ex.PW3/A was recorded. ........My daughter remained in ICU Ward throughout and my husband did not go inside and I used to sit inside........"

36. PW1 has deposed that he had left the RML hospital when the IO had recorded the statement of the prosecutrix (Ex.PW3/A) in the presence of PW3. However, PW3 has contradicted the evidence of PW1 when she had deposed that her husband, PW1, was also present with her at the time of the statement of her daughter (Ex.PW3/A). This fact indicates the possibility of manipulation of the document (Ex.PW3/A) during the investigation.

37. Further, PW1 has deposed that he had written Ex.PW1/B on the dictation of the prosecutrix but PW3 has deposed that her daughter remained in ICU Ward throughout and her husband did not go inside and she used to sit inside. When PW1 did not go inside the ICU where the prosecutrix was admitted, then there was no occasion for him to meet the prosecutrix and write Ex.PW1/B on the dictation of the prosecutrix. This Sessions Case Number : 69 of 2013.

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contradiction in the evidence of PWs 1 and 3 indicates that Ex.PW1/B is a fabricated and manipulated document.

38. PW1 has deposed that "I used to visit the ICU during the visiting hours. I also had access to my daughter as were in attendance."

PW3, on the other hand, has deposed that "My daughter remained in ICU Ward throughout and my husband did not go inside and I used to sit inside."

39. PW3 has deposed that "I did not ask anything from my daughter at that time as her condition was not good and we were also shocked due to the incident." This conduct does not appear to be natural as the first thing after hospitalization of the prosecutrix would have been to ask her the reason for the suicide.

40. PW1 has deposed that when he recorded Ex.PW1/B at about 2:30 to 3:00 pm in the ICU of RML Hospital, there was nobody present (doctor, nurse or ward boy) in the ICU. Except his wife, nobody else was present. However, PW3 has deposed that PW1 did not even go inside the ICU. Also, it is unbelievable that in an ICU where a burn patient i.e. the prosecutrix was admitted, there was no doctor, nurse or ward boy or any other staff on duty. Also, it is not believable that in the ICU of RML Hospital, no other patient was admitted there nor any other attendant of any patient was there. These facts indicate that the evidence of PW1 regarding recording the statement of the prosecutrix (Ex.PW1/B-third dying declaration) is false, fabricated and manipulated. The so called Sessions Case Number : 69 of 2013.

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third statement of the deceased prosecutrix appears to be generated at the instance of the parents of the deceased.

41. Now regarding the statement under section 161 of the Cr.P.C. of PWs 1 and 3, it may be observed that the prosecutrix expired on 03.03.2011. PW1 has deposed that "The police recorded my statement in this case in the hospital. I am not certain about the date on which my statement was recorded. My statement was recorded prior to demise of my daughter. .....My statement was not recorded after the demise of my daughter. .........." PW3 has deposed that "I do not remember whether I told the police in the statement under section 161 Cr.P.C that my daughter was in fit state of mind and was speaking properly. My statement was again recorded by the same police officer. I do not remember that date of such statement, however, I can not say whether it was after some days, week or month. That statement was also recorded by the police officer at RML Hospital."

42. As per the record, the statement of PW1 was recorded on 05.05.2011 and the statement of PW3 was recorded on 03.05.2011. Both PWs 1 and 3 have deposed that their statements were recorded in RML Hospital but the record shows otherwise. This fact also indicates the possibility of the evidence of PWs 1 and 3 being fabricated and motivated.

43. It is clear that the evidence of PW1 and 3 is full of glaring confrontations, overwhelming contradictions, improbabilities and Sessions Case Number : 69 of 2013.

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improvements which are too material to be ignored and same strike a fatal blow to the prosecution story.

THREE DYING DECLARATIONS OF THE DECEASED

44. As per the prosecution, there are three dying declarations of the prosecutrix i.e. Ex.PW1/A on 24.02.2011, Ex.PW3/A on 25.02.2011 and Ex.PW1/B on 01.03.2011.

45. It is argued that when she made Ex.PW1/A on 24.02.2011, she was hopeful that she would be saved and shall remain alive so she did not even mention the name of the accused and only said that "Mujhe kuch pareshani thi.....mujhe kissi se kuch pareshani nahi hai, main apni zindagi se pareshan ho gai hun aur jeena nahi chahti". Even when she made Ex.PW3/A on 25.02.2011, she was hopeful that she would be saved and shall remain alive so she only said that "Mere ve Pratap ke beech sharirik samanband bhi rahe hain.......Pratap ki shadi 11.3.2011 ko honi hai main is baat se bahut nirash hui aur marne ka faisla kar liya". However, when she realized that she shall not live, she said very clearly in her third dying declaration, Ex.PW1/B, on 01.03.2011, that accused had physical relations with her on a false promise of marriage and he abetted her suicide.

46. The counsel for the accused has vehemently argued that the first two dying declarations, which have been recorded by the IO, PW26, are correct and the third one, Ex.PW1/B on 01.03.2011, which is written by the father of the prosecutrix, is false and fabricated. The requisite Sessions Case Number : 69 of 2013.

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fitness certificate of the prosecutrix from the doctor has not been taken nor the investigation has been conducted by the police regarding the genuineness of Ex.PW1/B.

47. As regards Ex.PW1/A, it transpires that IO, PW26, had gone to DDU Hospital where he recorded the statement of the prosecutrix on which she put her thumb impression and her parents put their signatures. He had also moved an application (Ex.PW26/A) and the doctor had certified the patient fit for statement.

48. As regards Ex.PW3/A, it transpires that IO, PW26, had gone to RML Hospital where he recorded the statement of the prosecutrix on which she put her thumb impression and her mother put her signatures. He had also moved an application (Ex.PW26/C) and the doctor had certified the patient fit for statement.

49. As regards Ex.PW1/B, it transpires that IO, PW26, was given an application by the father of the prosecutrix, in allegations were leveled against the accused. It had the thumb impressions of the prosecutrix and the signatures of her father.

50. On careful perusal of the record, it is revealed that the IO, PW26, neither cared to go inside the RML Hospital to the ICU where the prosecutrix remained admitted from 25.02.2011 to 03.03.2011. Ex.PW1/B was given to the IO, PW26, by PW1, father of the prosecutrix on 01.03.2011 when he had gone to the RML Hospital on receipt of Sessions Case Number : 69 of 2013.

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telephone call from her father (as per PW26). The prosecutrix expired on 03.03.2011 at about 5:45 or 6:00 pm (as per PW1). It transpires from the record that the IO did not even care to verify about the genuineness of Ex.PW1/B and whether or not the prosecutrix had actually dictated the same to PW1. He did not make any enquiry from any doctor or hospital staff about Ex.PW1/B. He did not even bother to meet the prosecutrix while she was alive from 01.03.2011 till 03.03.2011 evening to enquire whether or not she had actually made Ex.PW1/B. As he had done earlier while recording Ex.PW1/A and Ex.PW3/B, the IO did not care to go to the doctor between 01.03.2011 till 03.03.2011 to take the fitness of the prosecutrix and then record her next dying declaration.

51. The least which was expected from the IO in such a serious case was that on receipt of Ex.PW1/B, the IO should have gone to the doctor, obtained the fitness certificate of the prosecutrix, met the prosecutrix and then recorded her next dying declaration and made verification of the veracity of Ex.PW1/B from the prosecutrix.

52. As per the prosecution story the prosecutrix allegedly made three statements/ dying declarations out of which the first two were recorded in the presence of police officials by the IO where as the last one, Ex.PW1/B, which is in the hand writing of the father of the deceased, PW1, on the basis of which the present case was registered, has been recorded in the absence of the police, hospital staff or any Magistrate. If the prosecutrix had to implicate the accused, she could have revealed his name at the first or second dying declarations in the presence Sessions Case Number : 69 of 2013.

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of the police. The third statement of the prosecutrix has apparently been generated at the instance of the parents of the deceased.

53. Here it may also be mentioned that PWs 7, 9, 12 and 24 had gone to the hospital but could not meet the prosecutrix as she was unconscious. If the prosecutrix was unconscious in the ICU, then Ex.PW1/B could not been dictated by her to PW1, who as per PW3, did not even enter the ICU.

54. Ex.PW1/A and Ex.PW3/A at the most show that the prosecutrix who had physical relations with the accused was upset and committed suicide as the accused was getting married. She has not stated that the physical relations were not with her consent or that the accused had promised to marry her and her consent for physical relations was taken on a false pretext of marriage or misrepresentation of facts. The possibility of one sided love cannot be ruled out. If she had to put the blame on the accused for her suicide, she would have done it in her first two dying declarations, Ex.PW1/A and Ex.PW3/A. No criminal role is assigned to the accused in the first two dying declarations of the prosecutrix, Ex.PW1/A and Ex.PW3/A, and as such, he cannot be held liable for having committed any offence under sections 376 and 306 of the IPC on the basis of the same.

55. It has already been discussed above that the evidence of PWs 1 and 3 indicates that Ex.PW1/B is a fabricated and manipulated document and therefore no reliance can be placed on the same and no role Sessions Case Number : 69 of 2013.

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can be attributed to the accused in the suicide by the prosecutrix or the reason for the suicide. The prosecutions has failed to prove that the accused had raped and the prosecutrix and had abetted her suicide.

FITNESS CERTIFICATE BEFORE DYING DECLARATION AND RECORDING BY SDM / MAGISTRATE

56. The counsel for the accused has argued that Ex.PW1/B, the third dying declaration of the prosecutrix, has been recorded without taking the fitness certificate from the doctor and is recorded by the father of the prosecutrix and therefore, it cannot be relied upon.

57. The Additional Public Prosecutor has argued that there is no prescribed manner of recording a dying declaration and any person can record it. It is only to be seen whether or not it is consistent, voluntary and in conscious and oriented condition.

58. It is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the Court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinize all the relevant circumstances.

Sessions Case Number : 69 of 2013.

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59. It has been observed by the hon'ble High Court of Delhi in a recent case reported as Jagbir Singh v. State, 2014 (1) JCC 172, that "The law does not provide that a dying declaration should be made in any prescribed manner or in form of questions and answers; it may be in narrative form also, it is also not necessary that the dying declaration has to be recorded by a Magistrate and non-recording of dying declaration by a Magistrate would not per se be a ground to disbelieve the version of prosecution."

60. Relying on the above mentioned judgment, it can be said that merely because the father, PW1, has recorded the dying declaration, Ex.PW1/B, it cannot be said that it is not believable.

61. Further, regarding the non- obtaining of the fitness certificate from the doctor, the same also can be ignored provided a reasonable explanation is given for the same and it is proved that the third dying declaration, Ex.PW1/B, was given voluntarily by the prosecutrix when she was conscious and well oriented.

62. On perusal of the record, it transpires that as per PW3, the mother of the prosecutrix, PW1, father of the prosecutrix, never went inside the ICU while their daughter was admitted in hospital. PWs 4, 7, 9, 12 and 24 have deposed that she was unconscious. PW2 has also deposed that she was not talking. PW1 has deposed that there was no doctor or hospital staff when he recorded Ex.PW1/B on the dictation of his daughter and this deposition is not believable as the ICU is of RML Sessions Case Number : 69 of 2013.

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Hospital and it cannot be true that no hospital staff, doctor or nurse were there.

63. Neither PW 1 nor PW26 have deposed that the prosecutrix was conscious, well oriented and had made Ex.PW1/B voluntarily. In fact PW1 has deposed that "It is only when her condition deteriorated that she made her statement." The satisfaction of the PW1 that the prosecutrix was fit to make her statement is not proved by the prosecution.

64. Further, PW1 has deposed that "At the time when she had made her statement on 01.03.2011 the police official was not present but he had instructed me to take down the statement in writing."

However, who this police official was and whether or not it was PW26 has not been proved. Also PW26 has not made any such deposition of instructing PW1 to record the statement of the prosecutrix i.e. Ex.PW1/B on 01.03.2011.

65. All the above facts show that although Ex.PW1/B has not been recorded by a Magistrate but the same does not vitiate the same. However, still it cannot be relied upon as the fitness of the prosecutrix to give her statement has not been proved. Also, as already discussed above, as PW1 had not gone into the ICU, he could not have recorded Ex.PW1/B. Sessions Case Number : 69 of 2013.

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EVIDENCE OF COLLEAGUES OF THE PROSECUTRIX AND ACCUSED

66. The prosecution has examined the colleagues of the prosecutrix and the accused to prove its case. The prosecution has examined Ms. Mona, friend of prosecturix, as PW4; Mr. Amit Kumar, colleague of the prosecutrix and the accused as PW7; Mr. Raj Kumar Singh, colleague of the prosecutrix and the accused as PW9; Mr.Vicky, colleague of the prosecutrix and the accused as PW12; Mr. Aji C.V, colleague of the prosecutrix and the accused as PW13; and Mr. Manish Kumar, colleague of the prosecutrix and the accused as PW24.

67. As per the prosecution story, PW1, father of the prosecutrix, had given four applications written by PWs 7, 9, 12 and 24 (Ex.PW7/A, Ex.PW9/A, Ex.PW12/A and Ex.PW24/A) on 04.03.2011, one day after the death of the prosecutrix, to the IO, PW26. It was alleged on all the four applications that the prosecutrix had an affair with the accused and they were to marry but accused cheated her as he was to marry another girl due to which the prosecutrix committed suicide.

68. During evidence, PWs 7, 9, 12 and 24 turned hostile and did not support the prosecution case. They were cross examined at length by the Additional Public Prosecutor but nothing material came forth. They have infact deposed that they had given the applications at the instance of the father of the prosecutrix as he was crying and pleading after her death due to which they got emotional and wrote the applications They have denied about the affair. They have even stated that they did not visit the Sessions Case Number : 69 of 2013.

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prosecutrix in the ICU, as they were not permitted or she was unconscious, nor they talked to her. Here it may be mentioned that if the prosecutrix was unconscious in the ICU, then Ex.PW1/B could not been dictated by her to PW1, who as per PW3, did not even enter the ICU.

69. PW4, Ms.Mona, friend of the prosecutrix has also turned hostile and has denied that the prosecutrix told her that she was going to marry the accused. She had met the prosecutrix in the hospital but the prosecutrix was not in a position to speak to her and did not tell her anything. Nothing material came forth in her cross examination on behalf of the State.

70. PW13 has only proved the certificate, Ex.PW13/A that the prosecutrix and the accused were the employees of the company during the relevant period.

71. It becomes clear from the evidence of PWs 7, 9, 12 and 24 as well as of PW4 that the version of the prosecution is untrustworthy and unbelievable.

CONTRADICTIONS IN EVIDENCE

72. Several contradictions in the testimonies of the parents of the prosecutrix, PWs 1 and 3, have already been discussed above and are not being repeated.

73. There are some contradictions in the evidence of PW25 and Sessions Case Number : 69 of 2013.

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PW26 regarding the signatures of the parents of the prosecutrix on Ex.PW1/A, the vehicle of the prosecutrix, presence of the doctor and of PW25 at the time of recording Ex.PW1/A, signatures of PW25 on Ex.PW1/A, keeping of seal by the IO after use, etc. which are too material to be ignored as they strike the very root of the prosecution case and also give a shattering blow to the prosecution story.

74. There are also some contradictions between the evidence of PW1 and PW2 regarding the knowledge about the affair of the prosecutrix with the accused as PW1 has denied the same while PW2 has deposed that he had come to know about the same from his children that she had an affair with a boy, whose name he did not know. PW1 has deposed that neither he nor his wife, PW3, had discussed about marriage with the prosecutrix nor she had informed him her choice. As per PW1, the prosecutrix was talking while PW2 has deposed that she did not utter a word in his presence although he was with her for 15/20 minutes.

75. PW2 has also deposed that the site plan was not prepared in his presence by the IO or any other police official which is contradiction to the evidence of PW26.

76. All the above mentioned overwhelming contradictions and inconsistencies give a shattering blow to the case. These blemishes are too major to be ignored and strike at the root of the prosecution case.

Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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CASE PROPERTY IN TORN CONDITION

77. The case property i.e. two bottles, Ex.P1 collectively, umbrella, Ex.P2 and match box with match sticks, Ex.P3 were produced in the Court in torn condition and some of the seals were also torn and broken. These articles are also easily available in the market, as per PW2 in whose presence the same were seized.

78. The above facts throw a shadow of doubt on the prosecution version and the possibility of false implication of the accused cannot be completely ruled out.

MENS REA / MOTIVE

79. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

80. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

81. 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. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. 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.

82. In the present case, a story has been projected that the accused Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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has raped the prosecutrix and abetted her suicide and this version appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution.

83. There does not appear to be any criminal intention and mens rea on the part of the accused.

DEFENCE OF THE ACCUSED

84. 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 by the prosecutrix. He has admitted that he and the prosecutrix were working in the same office. He did not know anything regarding why the prosecutrix tried to end her life. He came to know later on that she used to like him and on objections from her parents, she took the extreme step of trying to end her life. This was a very unfortunate incident in which he had no part to play. Although they were good friends and colleagues, they never went out alone and were always surrounded by other friends and colleagues.

85. The defence of the accused appears to be plausible considering the unreliable evidence of the prosecution which suffers from overwhelming contradictions and glaring inconsistencies.

86. However, the prosecution has to stand of its own legs and is Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.

87. It has already been discussed above that the evidence of prosecution is not reliable and is unworthy of credence. Therefore, the defence of the accused appears to be plausible.

INVESTIGATION

88. The investigation conducted in the present case has been deposed by PWs 6, 10, 11, 18, 19, 20, 21, 22, 23, 25 and 26. PW26 is the IO of the case. The MLCs of the prosecutrix and the accused have been proved by PWs 15, 17 and 29. The post mortem report of the prosecutrix, Ex.PW16/A, has been proved by PW16. The FSL reports have been proved by PW27 28. The FIR has been proved by PW14. The CDRs have been proved by PW8.

89. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.

90. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.

91. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the Sessions Case Number : 69 of 2013.

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investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.

92. However, it can be seen from the record that the investigation has not been conducted properly, fairly and impartially. In fact this is a case of complete dereliction of duties and deviation from all rules of prudence and law by the IO. This was a case where the investigation should have been conducted with great responsibility as a human life has been lost and the accused, in the event of conviction, would have received a severe sentence. The (mis) conduct of the IO is deplorable.

93. The reason for the suicide of the prosecutrix has not been investigated properly by the IO. The IO did not make the doctor remain with the prosecutrix and join the investigation while he recorded Ex.PW1/A and Ex.PW3/A. He did not seek the permission of the doctor to lower the bandage on the thumb of the prosecutrix before taking her thumb impression on the first two statements. He did not even ask the doctor to remove or lower her bandage. He did not even ask any doctor or nurse to counter sign on them.

94. The IO has deposed in his cross examination that "the prosecutrix had mentioned about her physical relations with the Sessions Case Number : 69 of 2013.

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accused in her second statement but I felt that she was not telling the complete truth." However, still the IO has preferred not to conduct any investigation despite forming the opinion that the prosecurix was not telling the complete truth.

95. The IO had retained the seal after seizing the articles from the spot of incident (as is deposed by PW25) and no explanation is coming forth from the prosecution regarding the same.

96. It is shocking to note that the IO failed to go inside the ICU of RML Hospital on 01.03.2011 despite going there on receipt of a telephonic call from the father of the prosecutrix where he was handed over Ex.PW1/B. He failed to go to the prosecutrix between 01.03.2011 till 03.03.2011 evening, till she was alive. He failed to verify the genuineness of Ex.PW1/B from the prosecutrix and whether or not she had actually dictated the contents of the same to her father. He even failed to examine any doctor to ascertain her medical condition and fitness for giving Ex.PW1/B. He even did not care to read Ex.PW1/B at the hospital. Even receiving Ex.PW7/A, Ex.PW9/A, Ex.PW12/A and Ex.PW24/A (applications from the colleagues of the prosecutrix and the accused) on 04.03.2011 from PW1, the father of the prosecutrix, the IO did not record their statements or make investigation from them till 28.05.2011, 06.06.2011 and 23.06.2011. The IO did not care too issue any notice to PWs 7, 9, 12 and 24 to join the investigation when he had not met them in the office. No explanation is furnished for the same.

Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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97. He also did not deem it appropriate to call the Magistrate or SDM for recording the statement/ dying declaration of the prosecutrix, as per the convention and practice while she was alive between 24.02.2011 and 03.03.2011. The IO has deposed that "I did not find it necessary to call SDM for the purpose of recording the statement." He also failed to call any senior officer for the said purpose. Neither the IO nor the prosecution has been able to give any explanation for the same.

98. The explanation given by the IO, in his cross examination is that "I did not meet prosecutrix on 01.03.2011 as I had to go to the PS since I was on duty....... I was busy doing investigation in other cases and also as I could not meet them since they (PWs 7, 9, 12 and 24) were busy in their official work". He has not furnished any explanation as to why after receiving Ex.PW1/B on 01.03.2011, he did not meet the prosecutrix till she was alive i.e. till 03.03.2011.

99. Although it is alleged that on the night of 24.02.2011 before the suicide, a message was sent from the mobile phone used by the prosecutrix to the mobile phone of the accused but no voice recording was obtained by the IO during investigation. Even the transcript of the message was neither produced nor proved. The records produced by PW8 show that the message was received on the next day, after the suicide was attempted by the prosecutrix and as such the accused could not have done anything to stop her from making such an attempt. Even otherwise, the prosecution has failed to prove that the particular numbers (as mentioned above) were used by the prosecutrix and the accused.

Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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100. The IO did not even care to record the statements of parents of the prosecutrix before and after her death immediately. He admittedly recorded the statement of PW3, mother of the prosecutrix, on 03.05.2011 i.e. after two months of the demise of the prosecutrix and the statement of PW1, father of the prosecutrix, on 05.05.2011 i.e. after more than two months of her demise. The explanation given by the IO is that "...I was busy in investigation of other cases".

101. The IO did not take any opinion regarding the handwriting on Ex.PW1/B (although the same is not disputed by the accused). No explanation is furnished for the same.

102. The IO did not issue any notice to the accused or his office prior to 23.06.2011 for his appearance before him despite this being a case of very heinous offences of rape and abetment to suicide.

103. The IO also did not verify the records of the mobile phones of the prosecutrix and the accused. The records of mobile phone numbers 9811533558 and 9953622645 which are in the names of Gurpreet Singh and Deepak were produced by PW8. It is clear that the IO has not made any verification regarding these two mobile phone numbers. Although in information given by Mr.Satish Jain (Ex.PW26/M and Ex.PW26/N), the mobile numbers of the prosecutrix and the accused are mentioned but the IO has not made Mr.Satish Jain a witness in the case nor the prosecution has examined him. The IO has failed to make any investigation regarding the mobile phone number of the accused, despite the stand of the Sessions Case Number : 69 of 2013.

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prosecution being that the prosecutrix had sent a message to him that she was going to commit suicide.

104. The prosecution has also failed to make Ms.Dimple a witness or produce and examine her despite her being a material witness who could have deposed about the present case.

105. The prosecution has also failed to make Mr.Sunil Bhatia, Manager in the company where the prosecutrix and the accused worked, a witness or produce and examine him despite her being a material witness who could have deposed about the present case.

106. It appears that a very casual approach rather a negligent approach has been taken by the IO for investigation in this case which was required to be investigated with great responsibility and sincerity.

107. It is clear that from the investigation or in fact lack of investigation, the version of the prosecution appears to be unreliable and untrustworthy.

FINAL CONCLUSION

108. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be Sessions Case Number : 69 of 2013.

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drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

109. Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix nor abetted her suicide. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.

110. This was a case which rested mainly on the third dying declaration of the prosecutrix, Ex.PW1/B, the genuineness, authenticity and veracity of the same has not been proved by the prosecution, primarily due to the negligence and failure of the IO to investigate properly.

111. When the dying declaration of the prosecutrix has not been proved by the prosecution, the reason for her suicide i.e. rape by accused Sessions Case Number : 69 of 2013.

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also remains unproved. The prosecution has miserably failed to prove that sometime during period of four years prior to 23.02.2011, the accused had raped the deceased prosecutrix at his house 1/36, Press Colony, Rajouri Garden, Delhi and he had instigated and abetted her to commit suicide which she attempted by firstly drinking acid and then pouring petrol on her and setting herself on fire in her house and subsequently expired on 03.03.2011. The role of the accused in the suicide of the prosecutrix has not been proved by the prosecution.

112. 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.

113. 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.

114. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is 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. Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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115. It is a case of heinous crime of rape and abetment of suicide, 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 an incident ever took place.

116. All the above facts indicate that there is no veracity in the prosecution case in respect of the offence of rape and abetment of suicide of the prosecutrix and the accused merits to be acquitted for the offence under sections 306 and 376 of the IPC.

117. 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 Mr.Venktanjaneya Pratap Singh.

118. Accordingly, Mr.Venktanjaneya Pratap Singh, the accused, is hereby acquitted of the charges for the offence punishable under sections 376 and 306 of the IPC.

Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

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COMPLAINCE OF SECTION 437-AOF THE CR.P.C.

119. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

120. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

121. Also, considering the fact that the IO SI Ashok Kumar has not conducted the investigation properly, as elaborated above, and his (mis) conduct is deplorable, copies of this judgment be sent to the DCP, West and the Commissioner of Police for information and to ensure that no such lapses are committed by any Investigation Officer in future.

122. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

123. 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 (NIVEDITA ANIL SHARMA) this 28th day of July, 2014. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.

*********************************************************** Sessions Case Number : 69 of 2013.

Unique Case ID Number : 02401R044082011.

FIR No. 57/11, Police Station Hari Nagar, Under sections 376/306 of the Indian Penal Code. State versus Venktanjaneya Partap Singh. -:: Page 47 of 47 ::-

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