Delhi District Court
State vs . Akbar Ali @ Pappu Khan Page No. 1/14 on 29 August, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0019962014
SC No. : 115/14
FIR No. : 164/13
U/s. : 328/376/506 IPC
PS : Jaitpur, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Akbar Ali @ Pappu Khan
S/o Late Shri Amanat Hussain
R/o House no. 50, Gali no. 4,
Ismailpur Faridabad .........................Accused
Date of Institution : 24.05.2014
Judgment reserved for orders on : 29.08.2016
Date of pronouncement : 29.08.2016
J U D G M E N T
1.The prosecution case is that on 06.05.2013, the prosecutrix (name withheld to protect her identity) reached the police station Badarpur and got recorded her statement interalia that she was married to Mahoj in the year 2000. She has two daughters. After the marriage, she had been working as maid. In the year 2010, her husband introduced her to the accused, owner of IRMA Enterpris placement agency. They asked the accused to arrange a suitable job for her in a foreign country. They exchanged their numbers. In the year 2012, she had been working as maid in Indirapuram, Ghaziabad. On 17.02.2012, she contacted the FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 1/14 accused on phone and asked him about the job in a foreign country. He asked her to come at his house at Jaitpur and told her that he would get her passport prepared. On 18.02.2012, she went to Jaitpur Gurudwara Road where the accused came. From there, at about 8 p.m., they went to his house. He took her on the first floor and asked her to stay at night and go in the morning but she insisted to leave. He brought cold drink for her. After some time, she felt giddy. He thereafter committed sexual intercourse with her without her consent. She could not resist him since she was giddy. After getting consciousness, on the next day, she went to her house but did not tell the incident to anyone since the accused had threatened to kill her and her husband. She went with her husband to her native village. After few days, she disclosed the incident to her husband but they could not muster courage to lodge the complaint. However, since then, she was feeling ashamed. She alleged that the accused committed sexual intercourse with her against her wishes and without her consent and threatened her and husband to kill.
2. On her statement, the case was registered u/s 328/376/506 IPC. The prosecutrix was got medically examined at AIIMS. The doctor did not collect her vaginal smear as the incident was of one year old. The accused was arrested. The accused was got medically examined qua his potency. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded. After the investigation, the accused was sent for trial for the offences punishable u/s 328/376/506 IPC.
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case committed to this Court. Vide order dated 16.07.2014, FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 2/14 prima facie case was made out against the accused u/s 328/376/506 IPC. Charge was framed. He pleaded not guilty and claimed trial.
4. To substantiate its allegations against the accused, prosecution examined as many as ten witnesses.
PW1 Dr. Piyush Sharma did the medical examination of accused vide MLC Ex.PW1/A. He found him capable of performing sexual intercourse under normal circumstances. PW2 is the prosecutrix. She deposed on the lines of her statement Ex.PW2/A. She stated that the accused used to run a placement agency. On 17.02.2014, she contacted the accused on phone and asked him to arrange a job at some other place / in a foreign country. The accused called her at Faridabad. She met him at Jaitpur colony from where he took her to his house on the first floor at Faridabad. They reached there at about 8 p.m. He gave her cold drink laced with sedative. She started feeling giddy and thereafter, he committed sexual intercourse with her against her wishes. She could not resist him since she was under intoxication. She got up in the morning and did not find clothes on her body. When she asked the accused, he threatened her not to tell any one lest he would kill her and her husband. She started weeping. He broke her sim so that she may not inform anyone.
FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 3/14 He got purchased another sim for her. He dropped her at his friend's house at Chirag Delhi. She informed her husband and told him what had happened to her. Her husband came and took her to his house. She stated that she was not in senses and lost mental balance. Her husband took her to her native place from where they returned in 2013 and then she lodged the complaint Ex.PW2/A on 06.05.2013. She proved her MLC Ex.PW2/B and her statement given to the Magistrate Ex.PW2/E. On being crossexamined, she stated that when the accused took her in his house at Faridabad on 18.02.2012, his wife was not in the house. His son aged about 10 years was there. Her husband was in Delhi at that time. She denied that there was dispute over payment of salary and she made the false allegations against the accused.
On being further crossexamined, she stated that she lodged the complaint under the pressure of her husband. Now, she has not been living with him. She admitted that her husband had dispute with the accused over money. She stated that Jyoti Prakash, uncle of the accused, Sylvester and Kishor who used to run placement agency had pressurized her to lodge complaint against the accused. She stated that she made the statement to FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 4/14 the Magistrate since her husband had threatened her to leave and kill her. She stated that accused did not commit any wrong with her.
She was reexamined by the Ld. Addl. PP.
She stated that she made the complaint and the statement under the pressure of her husband as he had threatened her to leave and kill. He also threatened to do second marriage.
PW3 Ram Karan is the landlord of the house on plot no. C64, Gyan Mandir, Road, Jaitpur Extension, Part1 which the accused had taken on rent at Rs. 4,000/ p.m. He stated that accused used to live there with his wife, brother in law and son and run a domestic agency.
PW4 Mahoj is the husband of the prosecutrix. He stated that he used to work as domestic servant. On 18.02.2012, his wife left her place of work at Ghaziabad at about 3:30 p.m. and did not come back. On 19.02.2012, he lodged the missing report. He stated that on 21.02.2012, she found his wife in a placement agency at Chirag Delhi. He took her to the police station Ghaziabad and found his wife in fear and tears. He asked from his wife as to what happened with her but she started weeping. He took her to his native place since she was mentally upset. In the village, she told him that the accused FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 5/14 had committed rape upon her. He stated that accused used to run a placement agency and he used to treat his wife as a sister. He stated that he does not remember the date when he took his wife to the native place. He denied that no such incident took place and he lodged the complaint through his wife to extort money.
PW5 SI Priyanka is the investigating officer of this case. She deposed on the lines of the investigation. She recorded the statement of the prosecutrix, got her medically examined, got registered the case and arrested the accused. She also got him medically examined. She stated that the prosecutrix had told her that due to fear, she did not lodge the report earlier. She did not collect the CDR of the accused and the prosecutrix. PW6 Ct. Wasim Khan was present when the accused was arrested from his house. He took the accused to AIIMS for his medical examination. PW7 ASI Shiv Ram on receipt of call regarding rape vide DD no. 25A Ex.PW7/A on 06.05.2013 at 11:45 p.m. went to Badarpur border and met the complainant and her husband.
PW8 Ms. Anu Aggarwal recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW2/E. PW9 HC Shansherpal recorded the FIR FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 6/14 Ex.PW5/B on the rukka received from PW6.
PW10 Dr. Darshana proved the MLC Ex.PW2/B of the prosecutrix prepared by Dr. Sujata Rawat. She stated that it was a case of old tear of hymen.
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that the husband of the prosecutrix had sent four boys to him. He got them employed in an air conditioning repair shop. He asked Rs. 20,000/ from him to be sent to the houses of those boys. Those boys did not work long and left the job. When he asked him to return the money, he implicated him in the false case of rape through his wife.
6. In defence, the accused did not examine any witness.
7. I have heard the arguments advanced by Ld. Counsel Sh. Manoj Kumar Singh for the accused and Addl. PP for the State and gone through the material available on record.
8. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.......
Fifthly..........
Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 7/14 the sexual intercourse necessary to the offence of rape.
Exception.......
9. After scanning the evidence led by the prosecution, I find material inconsistencies and contradictions in the testimony of the prosecutrix / PW2. In the complaint given to the police Ex.PW2/A, she had alleged that on 18.02.2012, she went to meet the accused at Jaitpur Gurudwara road. Accused came there and at about 8:00 p.m., he took her to his house. He asked her to stay at night but she insisted to go on the same day. He gave her cold drink. After some time, she felt giddy and accused committed rape upon her. After the incident on the next day after regaining consciousness, she returned from the house of the accused. She did not tell the incident to any one since the accused had threatened to kill her and her husband. Due to fear, she took her husband to his native place at Chattisgarh and after some days, she told him the whole incident. Due to fear, they could not muster courage, however, she was feeling ashamed. In the statement u/s 164 Cr.P.C. Ex.PW2/E, she had stated that on 18.02.2012, she went to Gyan mandir road Jaitpur to meet the accused. She purchased a mobile phone from Badarpur. She called the accused who came there to take her. He gave her cold drink. She then telephoned her husband and told him that she has reached safely in the house of the accused and would come on the next day. Thereafter, she started feeling giddy. She tried to contact her husband but accused snatched her phone and broke the sim. He thereafter, committed rape upon her. He threatened her to kill her husband. She then went to Chirag Delhi, telephoned her FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 8/14 husband and told him the incident. Her husband came there and he took her to his native place. Her husband encouraged her to lodge complaint. In her testimony, she has stated that the accused called her at Faridabad. She met the accused at Jaitpur colony. He took her to his house from Jaitpur colony. They reached there at about 8:00 p.m. He gave her cold drink laced with sedative and she started feeling giddy. He thereafter committed sexual intercourse with her against her wishes. On the next day morning when she came in senses, the accused threatened her not to tell anyone. He broke her sim and got purchased another sim for her. He then dropped her at his friend's house at Chirag Delhi. She informed her husband and told him what had happened with her. He came there and took her to his house. She was not in senses. Her husband took her to his native place from where they returned in 2013.
10. The question arises whether the prosecutrix went to the house of the accused with the intention to stay at night as appearing in the statement Ex.PW2/E or whether she had contacted her husband after reaching the house of the accused. Testimony of PW4 / husband of the prosecutrix would show that the prosecutrix did not inform him when she went to the house of the accused. On 19.02.2012, he lodged the missing report of his wife. On 21.02.2012, he came to know that the prosecutrix was in a placement agency at Chirag Delhi. He took her to the police station Ghaziabad. Since his wife was weeping and in fear, he took her at his native place. There she told him the whole incident. Testimony of PW2 would show that she had informed PW4 about the incident from Chirag Delhi itself. In her complaint, she did not state FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 9/14 that from the house of the accused, she went to Chirag Delhi. In the statement u/s 164 Cr.P.C., she had stated that she became afraid. She thought to leave the house of the accused. She then went to Chirag Delhi from where she informed her husband. In her testimony, she has stated that the accused got purchased another sim for her after the incident and dropped her at Chirag Delhi in his friend's house. It is strange that no investigation was made from the police station Ghaziabad or the son of the accused who was allegedly present in the house. Prosecutrix is also inconsistent as to when she informed her husband about the incident. Whether on the next day of the incident or within few days after the incident at the native place. It is to be noted that the complaint was lodged on 06.05.2013 i.e. after about 15 months of the incident. The reason for delay given by the prosecutrix PW2 / her husband /PW4 does not inspire confidence that they could not muster courage to lodge the complaint. It is also to be noted that prosecutrix was further crossexamined and she has stated that she had lodged the complaint under the pressure of her husband since her husband had dispute with the accused. She has categorically stated that no such incident of rape happened and she was pressurized by her husband, his uncle Jyoti Prakash, Sylvester and Kishor who used to run placement agency. It is also the case of the accused that he had dispute with the husband of the prosecutrix over money which made PW4 lodge the complaint against him through PW2/ prosecutrix.
11. Since in the instant case, the complaint was lodged after about 15 months of the incident, no medical / scientific evidence could be collected to substantiate the allegations of the prosecutrix. Even, the FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 10/14 investigating agency did not collect the CDR of the accused and the prosecutrix mobile to find out whether the accused or the prosecutrix had contacted each other on that day or the prosecutrix had gone to the house of the accused where the alleged incident took place.
12. In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive evidence contributes to the doubt in the prosecution case. In the case of Vijayan vs. State of Kerala (2008) 14 SCC 763, the incident took place seven months prior to the date of lodging of complaint. No complaint or grievance was made either to the police or to the parents prior thereto. It was held that in cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supportive evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape.
13. The improvements and contradictions as discussed above go to the root of the case and create doubt on the veracity of the prosecution case. In the case of Narender Kumar vs. State of Delhi (2012) 7 SCC 171, it was held that where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. In the FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 11/14 case of Ashok Narang vs. State of Delhi (2012)1 JCC 482, it was held that if one integral part of the story put forth by witness was not believable, then the entire case failed.
14. In the case of Dev Kumar Juneja vs. State of Delhi (1996) JCC 638, it was held as under: "Law on the question of variance between different statements of a witness at different stages is that small variations or omissions will not justify a finding that the witness is a lier and his testimony should be discarded. However, vital omissions merit consideration and if on vital points it appears to the Court that the witness has tried to improve the case such a witness will have to be discarded.
15. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
16. In the case of Narender Kumar Vs. State supra it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 12/14 The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
17. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
Conclusion
18. In the light of what has been stated above, I am of the view that FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 13/14 the prosecution has failed to establish its case against the accused beyond reasonable doubt. I therefore, acquit the accused Akbar Ali @ Pappu Khan of the offences punishable under section 328/376/506 IPC giving him benefit of doubt. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 50,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
19. File be consigned to the Record Room.
Announced in the open court today i.e. 29.08.2016 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 164/13 PS : Jaitpur State Vs. Akbar Ali @ Pappu Khan Page No. 14/14