Delhi District Court
Rajan vs State Of Kerala Hon'Ble Supreme Court ... on 2 November, 2017
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
SC NO. : 125/14
STATE
versus
1.Rajesh @ Raju son of Sh Mangat Ram r/o Jhuggi near Gauri Shanker Mandir Near 12 yards, Tilak Nagar New Delhi.
2. Gullu son of Mangat Ram r/o Jhuggi near Gauri Shanker Mandir Near 12 yards, Tilak Nagar New Delhi.
FIR No. : 582/14 Offence U/S : 376D/323/506/34 IPC Police Station : Tilak Nagar DATE OF RECEIPT OF FILE AFTER COMMITTAL: 08.12.2014 DATE OF JUDGMENT:02/11/2017 JUDGMENT
1. Accused persons namely Rajesh @ Raju and Gullu have been charge sheeted by Police Station Tilak Nagar, Delhi for
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the commission of offence under sections 376D/323/506/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that Accused Raju and Gullu are neighbours of the Prosecutrix (name mentioned in the file but withheld to protect her identity) and they instigated her son to help them in the commission of theft and pickpocketing in the buses. When her son had refused for the same, both accused persons had given beatings to her and threatened her of dire consequences. She had reported the matter to PS Rajouri Garden. When both accused persons came to know the registration of complaint against them, they in connivance with Parveen had called her in the park behind police booth and they had committed gang rape upon her. They gave injury on her left wrist by sharp edged object. They had also threatened the complainant to implicate both her sons in rape case. Thereafter she had gone to the police booth & lodged complaint. She was taken to hospital for medical treatment. Thereafter present FIR was registered against both the accused persons on the above said complaint of the complainant.
2. After hearing arguments, vide order dated 17/12/2014, charge for offences under section 376D/323/506/34 IPC was framed against the present accused persons , to which they pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined 2
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witnesses in all to prove its case.
4. PW1 is the prosecutrix. The prosecutrix, as PW1, has deposed that she has five sons and three daughters. The incident had taken place with her about 5-6 months ago. At about 5.00 p.m she had been selling the vegetables on rehri at 12 Gaj, Raghubir Nagar, Delhi and her son Mohd. Suleman was also with her. She had forgotten the coriander leaves (dhania) at home and she asked her son Mohd. Suleman to get the same from her house which was kept in the refrigerator. When her son Mohd. Suleman went to her residence, accused Gullu met him near the park situated in the vicinity of police booth in the area of Tilak Nagar. Accused Gullu asked her son Mohd. Suleman to accompany him for committing theft. Mohd. Suleman refused to accompany him and told him that he had to collect coriander leaves (dhania) from the house and had to give the same to her. Accused Gullu gave beatings to her son Mohd. Suleman and Mohd. Suleman got so scared that instead of going home to collect corainder leaves, he returned to her. At that time, Mohd. Suleman was bleeding from his nose and he narrated the entire incident to her. In the meantime, one Mamu Pradhan resident of 12 Gaj Raghubir Nagar passed from that place where she was selling the vegetables. She narrated the incident to Mamu Pradhan and told him that she was very upset, as accused Gullu had beaten her son Mohd. Suleman. In the meantime accused Gullu along with his few associates reached Mandi having an iron rod with him. Accused Gullu started beating her with fist and blows and he took out the knife to stab her son Mohd. Suleman but during this time someone from
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Mandi called the police at number 100 and accused Gullu along with his associates fled away from the spot before the arrival of the police. After sometime police reached there. By that time it had become dark . The police had conducted inquiries from witness as well as from some other persons of Mandi. Police asked her to take the police to the house of accused Gullu. She took the police to the house of accused Gullu which was inside the temple (mandir) situated at Sikri Bhatta, Shyam Nagar. Accused Gullu was not present in his house at that time. However, his associates who had accompanied him at the time when accused Gullu gave her beatings, were present outside his house. The mother of accused Gullu was present inside his house and she had switched off the electricity inside and outside the house. She along with two police person came near her khoka. The mother of accused Raju along with two other persons reached near her khoka. The accused Raju asked from her how she had entered in the parking along with the police. Accused Raju was also called at that place by his mother. Accused Raju and Gullu had pressed her neck. The police officials had tried to save her by using dandas with them. Thereafter accused Raju was apprehended by the police and was asked to reach at the PS but he did not accompany the police. She along with her son Sulemaan had gone to the PS along with the police official. She stayed at the PS till 3.00am. She had lodged the complaint at PS and came back to her house. The police officials had left her to her house. The electricity was connected in the morning at about 4.00- 5.00am. The police official namely Praveen and accused Raju had knocked her door and when she opened the door, she was asked to
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reach at Police booth by Ct. Parveen. She accordingly reached at police booth. She did not notice whether accused Gullu had hid himself at that place or not. The police booth was situated near the park and there was small boundary wall of the park. The accused Gullu and Raju had caught hold of her from her breast and thrown her inside the park from the boundary wall. The accused Gullu laid upon her. Her clothes were torn by accused Gullu. She had given teeth bite on the hand of accused Gullu. There were two gates on the boundaries of the park. The police official Parveen was standing as a guard on one gate of the park. She tried to escape from that place from the gate of the park, but she was attacked on her head by the knife blow given by accused Gullu. Witness had also stated that she could not say whether she was attacked by knife or by the rod, as she fell down on the ground and became unconscious. Before that accused Gullu had opened the string of her salwar, & had attempted to commit rape upon her, but she rescued herself after giving teeth bite on his hand. Meanwhile the police official Parveen served her water to show the public that he was helping her. She was taken to the DDU Hospital & her MLC was conducted. Her statement Ex.PW1/A was recorded by police, on which present FIR was registered. Her statement u/s 164 Cr.P.C was recorded by Ld M.M, which is Ex.PW1/B.
5. PW-2 is Inspector Renuka. She is the IO of the case. She has deposed that on receipt of DD no 30A and 35A, she had gone to the DDU hospital and collected the MLC of the prosecutrix.
Thereafter she had recorded the statement of the prosecutrix, which is Ex.PW1/A. Thereafter she had prepared tehrir and
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got the case registered through Ct Yogender. Statement of the prosecutrix u/s 164 Cr.P.C was recorded by Ld MM. Later on she had collected the FSL result, which is Ex.P.X. After completion of investigation, charge sheet was prepared and filed in the court.
6. Sh U.K. Giri, Ld counsel for accused persons has admitted the statements of ASI Om parkash, Dr Pallavi, Dr Shefali, W.Ct Laxmi, Ct Meera, HC Pushpa, HC Mnaresh, HC Sultan, Ms Ekta Gauba, Ld MM, HC Rajiv, Ct Anil,. Ct Jaswant, ASI Sukhram, Ct Rahul, HC Ajay and Ct Yogender, hence their statements were not recorded.
7. Thereafter, prosecution evidence was closed.
8. Statement of accused persons u/s 313 Cr.P.C were recorded wherein they have denied the allegations. They have submitted that they have been falsely implicated in the present case. Accused persons had stated that they want to lead evidence in defense.
9. DW1 is Smt Mamta. She has deposed that before 22 ½ years back Suleman was coming after having committing the theft. Gulu and Raju caught hold of Suleman and they produced him before the police officials. Thereafter mother of Suleman and sister of Suleman came there along with jeeja of suleman and they quarrled with Gulu and Raju. Thereafter, prosecutrix torn her clothes and she is in the habit of making false cases against persons.
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10. DW2 is Smt Shanti. She has deposed on the same lines as deposed by DW1.
11. I have heard arguments from Sh U.K. Giri, Ld counsel for accused as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
12. It is submitted by Sh U. K. Giri, Ld counsel for accused persons that this is a false case filed by the prosecutrix against the accused persons, as there was some dispute between the parties and one case was filed by the accused persons against the prosecutrix. As a counter blast, present case was filed by the prosecutrix against accused persons. It was further submitted by Ld counsel for accused persons that there are material contradictions in the statement made by the prosecutrix at different stages, which makes the case of the prosecutrix unbelievable,hence benefit of same should be given to the accused persons. With these submissions, it is prayed by Ld counsel for accused persons that accused persons be acquitted.
13. On the other hand, Sh Subhash Chauhan, Ld Additional P.P had submitted that prosecutrix had specifically stated that accused persons had tried to commit rape upon her on 04/06/16. Accused persons have been named in the present case and has been properly identified by complainant/prosecutrix, to be the offender of the crime, therefore, it was prayed by ld Additional P.P that accused
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persons be convicted for the offences, they are charged with.
14. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
15. In order to prove the case u/s 376D IPC it is settled principle of law, that the court has to primarily consider the testimony of the prosecutrix. If the testimony of the prosecutrix is uncontroverted and trustworthy, same could have been relied upon for convicting the accused persons. It is also settled principle of law that absence of medical evidence for proving the rape and absence of corroborating evidence will not make the case of the prosecution unproved, unless the testimony of the prosecutrix is dented with inconsistencies, irregularities or is not trustworthy.
16. In the case (2013) 9 Supreme Court Cases113Kaini Rajan vs State of Kerala Hon'ble Supreme Court has held that "conviction can be based on the sole testimony of prosecutrix if her version does not arouse doubt in mind of court. When facts and circumstances cast a doubt on the veracity of the prosecution case. It would be unsafe to convict the accused relying on uncorroborated version of prosecutrix"
17. In the present case after considering the evidence led by the prosecution specifically the testimony of the prosecutrix, PW1, it is clear that testimony of the prosecutrix is full of inconsistencies and prosecutrix had deviated from
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her statement at many stages in material particulars, which makes the testimony of the prosecutrix unreliable.
18. In the present case FIR was filed against accused persons for the commission of offence punishable u/s 376D/323 and 506 read with section 34 IPC on the ground that on 04/06/14 at about 22.30 p.m in the park near Police Booth Khyala Road, both accused persons along with their associate Parveen (not charge sheeted) in furtherance of their common intention committed rape upon the prosecutrix and has also given her beatings with sharp edged weapon and had further threatened her to implicate her sons in rape case. Therefore, in order to prove the case against accused persons, prosecution has to prove the commission of offence u/s 376D IPC ie gang rape upon the prosecutrix. For proving the offence of gang rape, it is required from the prosecution to prove the ingredient of rape as per section 375 IPC and has also to prove the presence of all accused persons at the place of incident, at same time. In order to prove the offence u/s 323/506 IPC also, prosecution is required to prove that some beatings, as alleged, were given to the prosecutrix or that any threat was extended by the accused persons to the prosecutrix.
19. In view of the settled preposition of law for proving the offence of rape, I will examine the evidence as led by the
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prosecution.
20. Prosecution has examined two witnesses. PW1 is the prosecutrix and PW2 is IO of the case. Rest of the prosecution witnesses have been admitted by Ld counsel for accused persons, hence their statements were not recorded. However, the testimonies of these witnesses are formal in nature as they are either doctors, who had medically examined the prosecutrix and accused persons or are the police officials who have joined investigation with IO. In cases of Rape, admittedly, testimony of prosecutrix is most relevant, as she is the victim of alleged offence and only she can narrate and prove the actual incident.
21. As per the complaint Ex.PW1/A, which was filed by the prosecutrix, offence was allegedly committed by accused persons on 04/06/14 at about 2 p.m, when in the park accused Gullu along with third person Parveen had caught hold of the prosecutrix & accused Raju had committed rape upon her after opening the string of her salwar. Whereas in her statement u/s 164 Cr.P.C, Ex.PW1/B, prosecutrix had stated that accused Raju had lied upon her and had opened the string of her salwar but she did not permit him to remove her salwar and thereafter she had pushed accused Raju and in this process, accused Raju had hit her with some sharp object on her head and arm. Thus, it is clear from the statement of the prosecutrix recorded u/s 164 Cr.P.C (Ex.PW1/B), that
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prosecutrix is silent about the commission of rape or attempt of rape committed by accused Raju with her. This is a material contradiction in the testimony of the prosecutrix. In Ex.PW1/B, prosecutrix had also not stated that accused Gullu or other person Praveen had caught hold of her. Thirdly in the examination in chief, which was recorded on 26/10/15 in the court, prosecutrix had again changed her version and has stated that when she was taken to the park, firstly she was attacked by accused Gullu with knife, and then she became unconscious. She had stated that accused Gulu had opened her salwar and had attempted to commit rape upon her. From the bare reading of these three statements of the prosecutrix, it is clear that in all three statements, prosecutrix had given different versions of the incident.
22. In complaint Ex.PW1/A, she had stated that Raju had committed rape upon her, while she was being caught held by accused Gullu and third person. In Ex.PW1/B, she had stated that accused Raju had opened her salwar and had torn her salwar but she pushed him and in the process accused Raju gave blow with some sharp edged weapon, whereas in the examination in chief, she had entirely changed the version and had stated that accused Gullu had attempted to commit rape upon her and no allegation has been levelled by her against accused Raju. It is difficult to believe that prosecutrix, who is matured lady having two major sons,
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will not be able to differentiate between the "attempt of rape" or "commission of actual rape" or that she will not be able to identify her assailants when admittedly accused persons and the prosecutrix were residing and working for gain in the same locality.
23. Further, it is the allegation of the prosecutrix that she was hit by some sharp edged weapon on her head but there is no incise wound received by the prosecutrix on her head, as per the report on MLC, Ex.PW1/C, this again shows the inconsistencies in her statement.
24. As per the FIR, on the date of the incident accused Rajesh @ Raju , Gullu and their brother Praveen had called the prosecutrix to the place of incident after taking the name of Ct Praveen, who is police man. But in her statement given under section 164 Cr.P.C prosecutrix had stated that Praveen police man had called her from her house at police booth where accused Gullu and Rajesh @ Raju were already present. But in the examination in chief she had again changed her version and has stated that Praveen police man and accused Raju had knocked her door to bring her to police booth. In this evidence, she has not stated anything about the presence of accused Gullu. But she had alleged that accused Gullu had tried to commit rape upon her. This is again material improvement/contradiction made by the prosecutrix in her statement. By reading all three statements of the
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prosecutrix, Ex.PW1/A, Ex.PW1/B and examination in chief, it is clear that in all the material particulars, testimony of the prosecutrix is differing & shaking the case of the prosecution as she has given different version at different stages.
25. In the MLC, Ex.PW1/C, prosecutrix had stated that third person Praveen also tried to rape her (whose name she did not know), but she started to run away. A confusion has been created by different testimony of the prosecutrix in respect to the actual incident and the manner in which the incident has taken place. At one place, ie in the complaint Ex.PW1/A, prosecutrix had alleged that the rape has been committed upon her by accused Raju. In the other statement ie Ex.PW1/B, prosecutrix had not stated that she was raped by any accused persons but had stated that only her salwar was torn by accused Rajesh @ Raju and in third statement i.e the statement recorded in court, she had stated that attempt of rape was committed by accused Gullu. Prosecution has also not been able to properly explain the presence of third person namely "Praveen", whether he was the brother of the accused persons or he was the police man of local Police Station and what was the role of that police man, has not been explained either by the prosecution or by the IO.
26. One more important aspect of contradictions in the statement of the prosecutrix is that as per the FIR, alleged incident had taken place at 22.30 p.m ie in the afternoon
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whereas, as per the examination in chief, incident had taken place in the morning ie at 5 a.m.
27. As regards the commission of offence u/s 506 IPC, although it has been alleged by the prosecutrix in her complaint that she was threatened by accused persons to falsely implicate her sons in a rape case but no such evidence has been led by the prosecutrix in the presence case. In the statement recorded u/s 164 Cr.P.C the complainant/prosecutrix has no where alleged that accused Gullu or Rajesh @ Raju had ever threatened her to falsely implicate her sons in rape case. She has only alleged that accused persons were asking her sons to accompany them for commission of theft, which was refused by her son Suleman. Similarly in the examination in chief, prosecutrix has no where stated that acused Rajesh or Gullu has given any threat to her to falsely implicate her sons in rape case. Rather, in the cross examination conducted by Ld counsel for accused on 14/02/2017 it has been admitted by prosecutrix that since a case FIR no. 580/14 was registered against her by Narender, due to the grudge, she has lodged the present case ie FIR no 582/14 against present accused persons. She had also stated in the crossexamination that no rape was committed upon her and she has named accused persons in the present case as one case bearing FIR no 580/14 was registered against her. This vitiate the entire case of the prosecution and therefore
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testimony of prosecutrix cannot be relied upon.
28. In the case AIR 1979 SUPREME COURT 1408 SURAJ MAL VS THE STATEHon'ble Supreme Court has held that "Where the witnesses make two inconsistent statement in their evidence either at one stage of at two stages, or testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
29. In view of the judgment of Suraj Mal (mentioned above) and my above discussion and preposition of law, as discussed above, it is clear that when the testimony of the prosecutrix, who is material witness in the case is suffering from inconsistencies and contradictions, testimony should not be believed and benefit of this should be given to the accused persons. Considering the same, I am of the opinion that prosecution has not been able to prove beyond reasonable doubt that accused Rajesh and Gullu had committed gang rape upon the prosecutrix. It has also not been proved by the prosecution that prosecutrix was hit by sharp object on her head by any of the accused persons or that accused persons had ever threatened the prosecutrix to falsely implicate her sons in a rape case.
30. In view of my above discussion, I am of the opinion that prosecution has failed to prove its case beyond reasonable
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doubt the accused persons. Hence accused persons namely Rajesh @ Raju and Gullu are acquitted of the offence u/s 376D/323/506/34 IPC. As per provisions of 437A Cr.P.C, bail bonds of the accused are extended for further six months on the same terms and conditions.
31. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 2nd November, 2017. Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi
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