Delhi District Court
State vs Satyendra @ Bablu on 28 March, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. : 1214/16
FIR No. : 54/16
PS : Jaitpur
U/s : 376/506 IPC
State Versus Satyendra @ Bablu
S/o Sh. Inder Pal
R/o H.No. 665, Abu Nagar,
Khalil Ganj, Fateh Pur,
Kanpur, UP.
Date of Institution : 02.06.2016.
Judgment reserved for orders on : 27.03.2018.
Date of pronouncement : 28.03.2018.
J U D G M E N T
BRIEF FACTS OF THE CASE:
1. The case of the prosecution is that on the directions of Ms. Neha, Ld. Metropolitan Magistrate, Saket Courts, New Delhi case was registered. Complainant/prosecutrix 'X' (name withheld to keep her identity confidential ) had given her complaint that around sixseven months back she went to her relatives at Gopalpur, Kanpur, Uttar Pradesh to attend a marriage ceremony where she met accused SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 1 of 24 Satyender Kumar @ Bablu and he took her mobile phone number and residential address and he thereafter started talking to her on phone. He came to Delhi in search of work and as he was not having any place to live he started staying in her house. In the meantime, on 27.11.2014 when she was alone at house accused took benefit and committed wrong act with her and threatened her that if she disclose the incident to anybody than its repercussions would be bad. She got scared and kept mum because she was married and it would have spoiled her married life. After some time accused went from her house and she was in a state of shock and confused. Thereafter, one day she felt pain in her stomach and went to the doctor. Then she came to know that she is pregnant. She contacted accused Satinder @ Bablu on phone who abused her and threatened to kill her. She told the entire facts to her parents and thereafter lodged her complaint to the police. Site plan was prepared at the instance of prosecutrix by the police. Medical examination of prosecutrix was got conducted in the hospital where prosecutrix refused for her internal examination. Thereafter, her statement under Section 164 Cr.P.C was got recorded by the police. Accused was thereafter arrested by the police. Accused was medically examined and his potency test was got conducted by the police. Exhibits were taken into possession by the police. During investigation, it came to light that prosecutrix is also having one baby boy aged about six months. Blood sample of complainant/prosecutrix SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 2 of 24 and baby boy was taken for DNA profiling from AIIMS Hospital was taken into possession by the police. Exhibits were sent to FSL, Rohini for examination and after completion of investigation, chargesheet was filed in the court under Section 376/506 IPC against the accused. CHARGE :
2. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 25.07.2016 prima facie case was made out against the accused for the offence u/s 376/506 IPC. The charge was framed to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
3. To substantiate its allegations against the accused, prosecution examined the following witnesses: MATERIAL WITNESSES:
4. PW1 prosecutrix had deposed that she had first met the accused at Gopalpur, District Kanpur, UP in a marriage ceremony. Accused had taken her mobile number. Thereafter, accused came to Delhi on 27.11.2014. Accused stayed with them for 23 days at her Delhi house. He told her that he has come to Delhi for an interview. Accused went for interview for two days and after his return told her that he has not been selected. On the day when accused was scheduled to leave her house, he touched her from behind while she was in the kitchen. When she came to her room, he followed her. He SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 3 of 24 touched her breast. She slapped him. Thereafter accused told her that he wants to have sexual intercourse with her as there is no one in the house except her and the accused. Her husband was not in the house. She told the accused that I am married. The accused did not listen to her. She told the accused that if any one would come to know, her marriage life will be spoiled but the accused insisted and persisted. Thereafter, the accused committed sexual intercourse with her forcefully and without her consent. She was married to her husband on 30.03.2012 and she did not have any children. After three four months she started not keeping well. The neighbouring aunty told her that she should get her medical checkup done. She checked her up and found herself pregnant. She called the accused and informed him that she is pregnant from him. Accused told her that he is busy. Sometimes he used to tell her that he is going to Saudi Arabia and sometimes he made lame excuses. She told the accused about keeping of her pregnancy. The accused did not extend any help to her and after two three months she informed her mother. Thereafter, she delivered a baby boy in a Haryana Hospital who is still with her. She had also given her blood for DNA sampling. She filed the present complaint Ex.PW1/A and had also shown the place of occurrence where accused raped her. IO prepared the site plan Ex. PW18/B at her instance. She was also medically examined in AIIMS Hospital and the doctor told him that even if she agree for her internal examination, SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 4 of 24 nothing will come out of it and therefore, she refused for her internal examination and wrote on the MLC Ex.PW1/C that she is not willing for her medical examination. She has duly identified her statement under Section 164 Cr.P.C Ex.PW1/D in the court. She did not have good relations with her husband who used to quarrel with her. He did not have regular job. During cross examination, witness resiled from her statement and Ld. Addl. PP cross examined the witness but nothing incriminating come out of her cross examination.
5. PW14 W/SI Sarika Sharma, Investigating Officer, deposed that on 30.01.2016 SHO assigned this case to her for investigation vide endorsement Ex.PW14/A. She collected the copy of FIR Ex.PW2/A, complaint Ex.PW1/A and other relevant documents. She joined the prosecutrix in the investigation and got her counseled on 31.01.2016. Prosecutrix was taken to AIIMS Hospital for her medical examination and got her medically examined vide MLC Ex.PW1/C. Prosecutrix refused to get her internal examination done. Prosecutrix pointed out the place of incident and she prepared the site plan Ex.PW1/B. On 04.02.2016 she got the statement of the prosecutrix u/s164 Cr.P.C Ex.PW11/A recorded before the Magistrate. On 06.03.2016 accused was got arrested by the police vide arrest memo Ex.PW1/E and his personal search memo was conducted vide Ex.PW8/A. She interrogated the accused and recorded his disclosure statement Ex.PW8/B. Accused was medically examined in AIIMS Hospital qua SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 5 of 24 his potency test vide MLC Ex.PW12/A and the examining doctor gave some sealed exhibits of the accused to Ct. Dharmender who further handed over the same to her and she seized the same vide Ex.PW13/A. The prosecutrix alleged that she gave birth to a baby boy from the relations of the accused. She took the prosecutrix and her baby to AIIMS where their samples were taken by the doctor vide MLCs Ex.PW5/A and Ex.PW5/B. The doctor handed over the same to her which were seized by her vide seizure memo Ex.PW14/B and Ex.PW14/C. She deposited the exhibits in the Malkhana and sent the exhibits of prosecutrix, her baby and the accused to FSL, Rohini for examination and recorded the statement of witnesses. Since the FSL result is pending, she completed the investigation and prepared the chargesheet and filed the same in the court. She collected the FSL result Ex.PW14/D and filed the same in the court. FORMAL WITNESSES:
6. PW2 HC Bhim Singh had deposed that on 30.01.2016 he was posted at PS Jaitpur as Duty Officer. On that day at 12.15 AM, SHO, PS Jaitpur had produced him the rukka of the case for registration of FIR. Accordingly, he recorded the FIR whose computer generated copy is Ex.PW2/A. Investigation was given to W/SI Sarika and he had handed over the copy of FIR and rukka to her. He also endorsed the rukka vide Ex.PW2/B and certificate u/s65B of the Indian Evidence Act Ex.PW2/C. SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 6 of 24
7. PW3 W/Ct. Soni Kumari had deposed that on 31.01.2016 she was posted as Constable at PS Jaitpur. On that day on the directions of IO, she took the prosecutrix to AIIMS for her medical examination. The prosecutrix refused to get her medical examination done. She returned to police station and handed over the MLC of prosecutrix to the IO who recorded her statement.
8. PW4 Ct. Sudhir had deposed that on 18.04.2016 he was posted as Constable at PS Jaitpur. On that day on the direction of IO/W/SI Sarika he took the sealed exhibits with sample seal and some documents for Malkhana and deposited the same in FSL, Rohini vide RC No. 59/21/16. After depositing the same in FSL, she returned to police station and handed over the copy of receipt to the MHC(M). She deposed that so long as exhibits remained in his custody, same were not tampered in any manner.
9. PW6 ASI Hari Singh had deposed that on 07.03.2016 he was working as MHC(M) at PS Jaitpur. On that day IO W/SI Sarika Sharma had deposited the exhibits in the Malkhana of which she made entry in Register No. 19 at serial number 1304. On 23.03.2016 IO W/SI Sarika Sharma had deposited the exhibits in the Malkhana vide entry in Register No. 19 at serial number 1341. On 13.04.2016 he got sent the exhibits to FSL through Ct. Sunil Kumar vide RC No. 59/21/16 and received its acknowledgment. He has proved the relevant entries made in Register No. 19 are Ex.PW6/A and B and SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 7 of 24 copy of RC Ex.PW6/C. He deposed that so long as exhibits remained in his possession, their seals were intact and no one tampered with the same.
10. PW8 Ct. Arvind had deposed that on 06.03.2016 he was posted as Constable at PS Jaitpur. On that day, accused Satender @ Bablu was arrested after interrogation in the police station Jaitpur vide arrest memo Ex.PW1/E. His personal search memo was conducted vide memo Ex.PW8/A. IO recorded the disclosure statement of the accused vide Ex.PW8/B.
11. PW10 Mother of prosecutrix had deposed that she does not know anything about this case. He does not know accused present in the court nor she met him ever. She deposed that she never met the police regarding this case. During examination, witness resiled from her statement and Ld. Addl. PP cross examined the witness but nothing incriminating come out of her cross examination.
12. PW11 Ms. Anu Aggarwal, Ld. MM had deposed that on 04.02.2016 she was posted as MM, South East. On that day an application Ex.PW11/A was assigned to her for recording the statement of prosecutrix and he recorded her statement Ex.PW1/D, put certain questions to her to ascertain her voluntariness to make the statement and also appended a certificate. She deposed that after recording the statement, its copy was supplied to IO and Ahlmad was directed to keep the statement in sealed cover and send it to the court SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 8 of 24 concerned.
13. PW13 Ct. Dharmender had deposed that on 07.03.2016 he on the instructions of IO, took the accused to AIIMS for his medical examination and after his examination doctor handed over the MLC and sealed exhibits of accused along with sample seal to him which he handed over to IO vide memo Ex.PW13/A. MEDICAL WITNESSES:
14. PW5 Dr. Antara Deb Barma had deposed that on 28.03.2016 the prosecutrix had come for giving blood sample for DNA analysis. She took consent of the prosecutrix on the consent form which was witnessed by W/SI Sarika Sharma. She took her blood sample in gauze, sealed it and labelled it in her presence. She handed over the sample along with sample seal to the IO. On the same day, she also took the blood sample of a baby namely Noni who was brought by the prosecutrix. She took consent of the prosecutrix on the consent form which was signed and witnessed by W/SI Sarika Sharma. She sealed the samples and labelled it in her presence. She handed over the samples along with sample seal to the IO and proved on record MLCs Ex.PW5/A and Ex.PW5/B.
15. PW7 Dr. Deepak Gupta had deposed that on 31.01.2016 at about 08.18 PM prosecutrix aged about 26 years was brought by W/Ct. Soni to their department for her medical examination. She gave history that her distant relative namely Satyendra was staying in her SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 9 of 24 house for the purpose of giving an interview and on 27.11.2014 between 12 PM he got drunk and had forceful vaginal intercourse with her. After this, she became pregnant and had an LSCS on 01.09.2015 and a baby boy was born who is living with her. He had medically examined the prosecutrix vide Ex.PW1/C. He deposed that prosecutrix refused to get her internal medical examination.
16. PW9 Dr. Sunil Kumar had deposed that on 06.03.2016 patient Satender @ Bablu was brought by the police for medical examination. He examined him and prepared the MLC Ex.PW9/A.
17. PW12 Dr. Deepak Prakash had appeared on behalf of Dr. Jasbir Singh and deposed that he can identify handwriting and signatures of Dr. Jasbir Singh who has left the services of hospital and his whereabouts are not known. He deposed that he has seen the MLC Ex. PW12/A of accused Satender @ Bablu prepared by Dr. Jasbir Singh and as per the MLC accused was found capable of performing sexual intercourse under normal circumstances. His blood in gauze was taken, preserved and sealed and handed over to the police along with sample seal.
STATEMENT OF ACCUSED AND DEFENCE TAKEN BY ACCUSED:
18. Statement of accused was recorded under Section 313 Cr.P.C wherein accused deposed that prosecutrix got registered the case against him falsely under the influence of her family members.
SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 10 of 24 Physical relations between him and prosecutrix were consensual and were not on any assurance. They both were living in livein relationship. Accused in his defence had not produced any witness on record.
19. I have heard the submissions of the Ld. Counsel for accused and the Ld. Addl. PP for the State and perused the record. CONCLUSION:
20. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence of rape by resorting to the provisions of section 375 read with section 376 IPC. Section 375 IPC provides as under: "375. Rape. A man is said to commit "rape" if he (a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : First. against her will.
Secondly. Without her consent Thirdly. With her consent, when her consent has been SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 11 of 24 obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent. Explanation 1. For the purpose of this section, "vagina" shall also include labina majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
21. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced upon a woman SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 12 of 24 against her will. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Lett. 130b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials"
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the seven clauses in Section 375 IPC.
22. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended b y any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
23. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 13 of 24 significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
24. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word ' consent' and 'submissions' as shown below: "(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be " consent" as understood in law.
(2) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 14 of 24 (4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
25. The essence of rape is absence of consent. The consent means intelligent and positive concurrence of woman. A woman is said to consent, only when she freely agrees to submit herself while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under influence of fear or terror or false promise is not consent. If the physical relations are made with consent, that cannot be termed as rape.
26. SECTION 506 IPC PROVIDES AS UNDER:
506. Punishment for criminal intimidation. Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 15 of 24 with fine, or with both.
If threat be to cause death or grievous hurt, etc. And if the threat to be the cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or (imprisonment for life) or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
27. To prove the offence the most material witness in this case is the prosecutrix. To ascertain whether the accused had sexual intercourse with her without her consent, it is necessary to peruse her statement given in the court. In her statement prosecutrix has deposed that accused come to stay in her house for an interview and on the day when he was scheduled to leave her house he committed sexual intercourse with her forcibly and without her consent despite the fact that the prosecutrix had told him that she is married. Her husband was not in the house. Admittedly she was married on 30.03.2012 and was not residing with her husband since last one year as she was not having good relations with her husband who used to quarrel with her. As per the statement of the prosecutrix she got pregnant from the relations with the accused and later on delivered a baby boy. The blood sample of the prosecutrix, baby boy and the accused was sent to FSL and as per the report from FSL the DNA profiling was sufficient to conclude that the accused is the biological father and the SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 16 of 24 prosecutrix is the biological mother of the child.
28. Prosecutrix turned hostile and she was cross examined by the Ld. Addl. PP for the State. During her cross examination she has admitted various facts as per prosecution story with regard to the threat given by the accused not to disclose the incident to anybody, with regard to her pregnancy and with regard to the refusal of the accused to sign on the medical documents. Later on during the cross examination of the prosecutrix from the side of accused she totally resiled from her statement given in examination in chief before the court. She had deposed that even after her marriage she and her husband had been living at the house of her parents. Accused had visited her house twice. Her husband became suspicious about her relations with the accused. She admitted that she knew the accused for about six months prior to the incident. She also admitted that she and the accused used to love each other and used to talk on phone. She also deposed that on 27.11.2014 the accused made physical relations with her with her consent and she has admitted that accused did not force upon her nor beaten her nor threatened her. She deposed that she was tutored by the police to state as per the complaint Ex.PW1/A. She has admitted that accused did not commit sexual intercourse with her forcefully and that sexual intercourse was made with her consent. She has stated that accused never abused her. She also deposed that there used to be quarrel between her and her SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 17 of 24 husband and during that period she came in contact with the accused and developed intimacy with him. She also deposed that when she made the complaint she was not divorced and as she had become pregnant from the accused, due to the fear that her husband would leave her, she made the complaint against the accused making allegations that he committed sexual intercourse with her without her consent, though, their relations were consensual. She deposed that she wanted to conceal her pregnancy from her husband but when her pregnancy exposed, she made complaint due to the fear and under the pressure of her husband and family members.
29. Prosecutrix was reexamined by the Ld. Addl. PP but nothing incriminating could come in her reexamination. It is denied by her that she has been won over by the accused as he is the biological father of her son.
30. Though it is settled law that conviction can be based on the sole testimony of the prosecutrix but the same must inspire the confidence.
31. Who can be termed as sterling witness has been dealt in the case of Rai Sandeep @ Deepu Vs. State of NCT of Delhi, 2012 (131) DRJ, 3 SC, it was held: "In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 18 of 24 status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 19 of 24 to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged".
32. The inconsistencies, improvements, embellishments and contradictions coming in the testimony of the prosecutrix go to the root of the case. Her testimony cannot be said to be of sterling quality. The things appear to have not happened in the manner they have been projected. It was held in the case of Dev Kumar Juneja Vs. The State (Delhi Administration) 1996 JCC 638 that 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 be discarded. However, vital omissions, merit consideration and if on vital points it appears to the court that witness has tried to improve the case, such a witness will have to be discarded.
33. The court, while evaluating the facts of a case, is supposed to form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 20 of 24 termed unreliable:
a) the witness's statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
34. It is for the court to consider in each case whether as a result of cross examination, the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
35. In Sada Shiv Ram Rao Hadbe Vs. State of Maharashtra and Anr., 2006 (10) SCC 92, Apex Court has observed :
"It is true that in rape case, the accused could be convicted on the sole testimony of the prosecutrix, if it SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 21 of 24 is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or "the whole surrounding circumstances" are highly improbable and belie the case, the case set up by the prosecutrix, the court shall not act on the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
36. In Raju Vs. State of Madhya Pradhesh, (2008) 15 SCC 133, the Supreme Court stated that the testimony of the victim of rape has to be tested as if she is an injured witness, but cannot be presumed to be gospel truth. The court observed : "It cannot be lost sight of 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, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailant, but there is no presumption of any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
37. Since the prosecutrix had retracted from her statement and has given wavering statement twice in the court, the said statement of the prosecutrix does not inspire confidence. Moreover, it is pertinent to SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 22 of 24 mention here that offence of rape was committed on 27.11.2014 but she made the complaint on 30.05.2015. No explanation is forthcoming from the side of the prosecutrix as to why she lodged the complaint after about six months of the incident. The prosecutrix was already married and living with her parents. As per the case she was threatened by the accused not to disclose the incident to anyone. If that was the position who prompted her later on after six months of incident, to lodge the complaint against the accused.
38. In her cross examination from side of the accused she has specifically stated the relations with the accused to be consensual out of love and she had given the reason for not making the complaint earlier on account of th leaving her by her husband but later on when the pregnancy got exposed and she was forced to make the complaint against the accused. This statement of the prosecutrix, if taken together gives the explanation of her not making the complaint at the earliest at the time when the offence was committed.
39. Apart from the prosecutrix even the mother of the prosecutrix had not supported the case of the prosecution and has turned hostile. The remaining witnesses cannot prove the offence against the accused. The retracted testimony of the prosecutrix is not convincing and trustworthy and the same is not reliable. Accordingly, the prosecution has failed to prove its case beyond reasonable doubt against the accused. Giving the benefit of doubt, accused Satyendra @ Bablu is SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 23 of 24 acquitted of the offences framed against him.
40. In view of the Section 437A of Cr.P.C., accused is directed to furnish bail bond in a sum of Rs. 20,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any.
41. File be consigned to Record Room.
Announced in the open court today i.e. 28.03.2018 ( Renu Bhatnagar) ASJSpl. FTC / SED/Saket Courts New Delhi SC No. 1214/16 State Vs Satyendra @ Bablu Page No. 24 of 24