Delhi District Court
State vs . Arun Kumar on 29 July, 2016
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.8694/16
FIR No.439/13
PS Vasant Vihar
U/s 376/506 of IPC
State Vs. Arun Kumar
S/o Sh. Basawaraj
R/o H.No.213, Shivaji Colony,
C/o Neeraj, Gandhi Nagar
Abu Road, Distt. Sirohi, Rajasthan
Permanent Address:-
Hoalke Road, Near Sharadmma
Choutary, Distt. Chitradurga
Karnataka-577501
Date of Institution 22.11.2013
Argument heard/order reserved 29.07.2016
Date of judgment 29.07.2016
Final Order Acquitted
JUDGMENT
FACTS OF THE CASE Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Criminal Procedure Code (for short Cr.P.C), are that the prosecutrix/complainant was married in the year 1991 in Utranchal and thereafter they came to Delhi in 1995 with her husband. They were living with her husband comfortably till 2010 but because of drinking habits of her husband and prosecutrix being issue-less, the relationship between them started having become estranged. Thereafter, prosecutrix started working at the clinic of accused at Katwaria Sharay where accused was practicing as Dentist. She was doing cleaning and dusting work in FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 1 of 19 the said clinic between 2010 upto May, 2012. On 07.05.2012, as usual prosecutrix went to for her work to the said clinic of accused. Accused convinced her to travel Mount Abu with him. On being convinced, she accompanied the accused to Mount Abu without informing her husband. In Mount Abu, they stayed at Rathore Bhawan, Maliwat near Ambika Bhawan. Accused entrapped her stating that her husband is addicted to liquor and established physical relationship with her making false promise of marriage. Thereafter, he continued to make physical relationship with her till September, 2013 giving assurance to marry her and whenever she used to object his wrong deed, accused used to threat to kill her. Later on, accused refused to marry her, gave beatings to her and left her to her native place. Accused was also stated to have taken FD of Rs.90,000/-, mobile phone, gold chain and Jhumka of the prosecutrix. These are the allegations of the prosecutrix upon which present FIR was registered against accused on 10.10.2013 u/s 376/406/506 of Indian Penal Code (for short IPC).
INVESTIGATION During investigation, IO got conducted medical examination of prosecutrix at Safdarjung Hospital, collected Exhibits, seized it, got recorded statement of prosecutrix u/s 164 Cr.P.C before learned MM, got conducted counseling of prosecutrix by NGO, arrested accused on the identification of prosecutrix's brother, conducted personal search of accused in which one Laptop black make Meachine Model D-7292, Wallet containing cash Rs.2890, SBI ATM Card, PNB ATM Card and his DL were seized along with some loose papers. FD of Rs.90,000/-, gold chain and Jhumka were also recovered and seized. Accused was medically examined in AIIMS Hospital, IO collected the Exhibits, seized it and got deposited Exhibits to FSL, After completion of investigation, challan was filed before the learned MM on 22.11.2013 for the offences punishable u/s FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 2 of 19 376/406/506 IPC against the accused. The case was committed to learned Predecessor Court and thereafter, it was transferred to this court on 20.08.2015.
CHARGE The challan was filed for the offences punishable u/s 376/406/506 IPC against the accused, however, the charge was framed by the learned Predecessor Court on 21.02.2014 against accused for the offences punishable u/s 376/506 IPC to which accused pleaded not guilty and claimed trial. Thereafter, matter was posted for prosecution evidence.
PROSECUTION EVIDENCE In order to substantiate the allegations, the prosecution examined Sh. Shankar Joshi and Prem Chand Joshi, brothers of prosecutrix as PW1 and PW2 respectively, Duty Officer/SI Om Prakash as PW3 who registered present FIR, Sh. Hem Chand husband of prosecutrix as PW4, Sh. Praveen Sansanwala, the owner of shop where accused was running his clinic as PW5, Sh. Rajesh Kumar as PW6 with whom husband of prosecutrix was working and his uncle has given a room on rent to accused, HC Jai Prakash as PW7 who joined the investigation, accompanied the IO to Mount Abu to arrest the accused, Dr. Deepak Prakash as PW8 who conducted potency test of the accused, SI Sunil Kumar as PW9 who went to Mount Abut, arrested the accused and recovered case property, Dr. Sanjeev Kumar as PW10 who medically examined the accused, the prosecutrix as PW11, Dr. Jahanvi Meena as PW12 who prepared the MLC Ex.PW11/B of prosecutrix, HC Manoj (MHCM) as PW13, Ct. Prem Prakash as PW14 who accompanied the accused to AIIMS Hospital for his medical examination, Ct. M. Balaji as PW15 who got deposited the Exhibits to FSL, CBI Lodhi Road, WSI Asha Singh the IO of the case as PW16, Ct. Umed Singh from Distt. Sirohi, Rajasthan as PW17 who proved the relevant entry FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 3 of 19 regarding arrival/departure entry Ex.PW17/A and Ex.PWA17B regarding visit of SI Sunil Kumar along with Ct. Jai Prakash to Distt. Sirohi, Rajasthan in relation to present case for search of accused. Witnesses were cross examined at length. After completion of prosecution evidence, matter was posted for statement of accused.
STATEMENT OF ACCUSED Statement of accused was recorded u/s 313 Cr.P.C separately. In his statement, accused admitted that the prosecutrix was doing cleaning and sweeping work in his clinic but denied rest of the allegations. Accused further denied that on 12.09.2013, he left the prosecutrix to her native place at Pithoragarh. He further denied recovery of any articles at his instance or from his possession. Accused further submitted that he is innocent and has been implicated in this case but he did not opt to lead any defence evidence. Thereafter, matter was posted for final arguments.
FINAL ARGUMENTS
1. Final arguments heard on behalf of both the parties. I have gone through the records as well as written submissions filed on behalf of accused. I have also gone through the relevant provisions of law.
2. It is argued on behalf of the State that the prosecutrix/complainant the prosecutrix and her husband came to Delhi in 1995 with her husband and was living with her husband comfortably till 2010 but because of his drinking habits and prosecutrix being issue-less, the relationship between them have become estranged. Thereafter, prosecutrix started working at the clinic of accused who was Dentist by profession. After knowing the facts of her marital life as well as financial condition, accused convinced the prosecutrix to travel Mount Abu with FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 4 of 19 him. Accordingly, on 07.05.2012, after convincing her, accused took the prosecutrix to Mount Abu Rajasthan, stayed at Rathore Bhawan, Maliwat near Ambika Bhawan. Accused entrapped her stating that her husband is addicted to liquor and made physical relationship with her making false promise of marriage. Thereafter, he continued to make physical relationship with with her till September, 2013 giving assurance to marry her and whenever she used to object his wrong deed, accused used to threat to kill her. Accused also took the three FDs of Rs.30,000/- each, mobile phone, gold chain and Jhumka of the prosecutrix which were later on recovered at the instance/possession of the accused. All these facts have been well corroborated by the prosecutrix in her statement before the learned MM as well as in her evidence before the court. Other witnesses have also well corroborated the prosecution story and recovered case properties have also been correctly identified by the prosecutrix as well as other recovery witnesses. Therefore, accused may be held guilty for the alleged offences.
3. On the other hand, apart from several other arguments, learned defence counsel argued that accused is innocent and has been falsely implicated in this case. It is further argued that the prosecutrix is married women and obtaining consent of married women for sex on assurance of marriage is incomprehensible and therefore her complaint stands falsified. Learned defence counsel also placed reliance upon the judgments reported in "(i) Rohit Tiwari vs State (Delhi) Crl.A. 928/15, (ii) 2013 CRI L.J. 2990 (iii) 2009 CRI L.J. 1204 (iv) 2009 CRI L.J. 1207 (v) 2012 CRI L.J. 4418 and (vi) "Prashant Bharti vs State of NCT of Delhi, AIR 2013 SC 2753".
4. It is further argued that the testimony of the prosecutrix is not reliable and trustworthy as there are discrepancies and variations in the facts disclosed by FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 5 of 19 the prosecutrix to the police and in her statement recorded u/s 164 Cr.P.C, statement made to Counselor. Even her medical examination is not lending any support to her statement. As per prosecutrix, she was beaten and was left to her native village but there is no record of any injury sustained by her due to said beatings given by the accused nor the IO of the case has made or examined any witness from her native place to support the version of the prosecutrix.
5. It is further argued that there is a considerable delay in lodging FIR. The prosecutrix has not been able to explain as to what prevented her from coming to Delhi or lodging complaint even at her native place. There are contradictions in the testimonies of prosecution witnesses. Prosecutrix was not missing nor any missing report was lodged as the prosecutrix was residing with accused of her own and her family including her husband were well aware of this fact. PW4/her husband has also filed a divorce petition due to which he has not bothered to searcg the prosecutrix for about one year.
6. It is further argued that the prosecutrix has not disclosed in her statements that while going with accused, she also took the seized articles with her. The seized articles were implanted at the instance of prosecutrix on the accused in order to make the case more forceful against the accused. No independent witness of the locality from where the accused was arrested and the recoveries of the aforesaid articles were effected, was joined. Non-joining of independent witness is fatal to the prosecution story qua alleged recovery of articles from or at the instance of accused. On these grounds, it is prayed that accused persons may kindly be acquitted.
RELEVANT PROVISIONS OF LAW AND CASE LAW
1. Section 375 IPC defines rape with a woman against her will. Relevant provision FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 6 of 19 of section 375 IPC are reproduced for ready reference as under:-
375. Rape. - A man is said to commit "rape" if he -
a) ....
b) ....
c) ....
d) .....
under the circumstances falling under any of the following seven descriptions:-
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - ....
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. - ....
Sixthly. - ....
Seventhly. - ....
Explanation 1. - ....
Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
2. Consent is not defined in positive terms in Indian Penal Code but the provisions of section 90 of IPC clearly indicates that what cannot be regarded as consent.
FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 7 of 19 Consent given firstly under fear of injury and secondly under a misconception of fact is not a consent at all. The relevant provision of section 90 of IPC is reproduced for ready reference:-
"90. Consent known to be given under fear or misconception. - A consent is not such a consent as is intended by 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."....
3. In the case of "Pradeep Kumar @ Pradeep Kumar Verma vs State of Bihar and Anr., Crl. Appeal No.1086 of 2007 decided on 17.08.2007, Hon'ble Supreme Court held as under:-
10. In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. And other legal dictionaries.
Stroud defines consent as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. Jowitt, while employing the same language added the following:
Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.
In words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American courts are found:-
Adult female's understanding of nature and consequences of sexual act must be of intelligent understanding to constitute consent.
FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 8 of 19 Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.
4. In the case of "Jayanti Rani Panda vs State of WB, MANU/WB/0299/1983", the Hon'ble Calcutta High Court has held as under:-
Para 7:
Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is ... Why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.
The discussion that follows the above passage is important and is extracted hereunder:-
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry. We do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 9 of 19 pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC can not be called in aid in such a case to pardon the acts of girl and fasten criminal liability on the other, unless the court can be assured that form the very inception the accused never really intended to marry her.
5. In the case of State of H.P. Vs Mango Ram, MANU/SC/0527/2000 : 2000 Cri. LJ 4027, the Hon'ble Supreme Court observed as under:-
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 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 fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances".
6. The Hon'ble Supreme Court further opined in the case reported as "Uday vs State of Karnataka MANU/SC/0162/2003 (2003 Cri LJ 1539)" as under:-
"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the test laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weight the evidence FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 10 of 19 keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them".
7. Further, factum of presumption of no consent on behalf of prosecutrix u/s 114A of Evidence Act, 1872 was discussed in case where there allegation of rape is on account of false promise of marriage in case of Deepak Gulati vs State of Haryana (2013) 7 SCC 675) : AIR 2013 SC 2071 and it was observed as under:-
"15. Section 114-A of Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved therein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of sections 417, 375 and 376, IPC have to be taken into consideration along with the provisions of Section 90 of the Act, 1872. Section 90 of the Act, 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, that thus, such a physical relationship would tantamount to committing rape".
8. In "AIR 2012 Supreme Court 2281, titled as Narender Kumar vs State (NCT of Delhi), the Hon'ble Supreme Court has held that :-
23.The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case, the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 11 of 19 own legs and can not take support from the weakness of the case of defence. However, 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. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against accused by reliable evidence. The accused is entitled to the benefit of doubt.
Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of the defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecution on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
The court must act with sensitively and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasions complained of.
9. In Prashant Bhart case (supra), the Hon'ble Supreme Court has held as under:-
"16...It is apparent from irrefutable evidence, that during the dates under references and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecutrix, that the appellant-accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal.
FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 12 of 19 Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the judgment and decree dated 23.09.2008 produced before us by the complainant/prosecutrix herself is taken into consideration along with the factual position depicted in the supplementary statement dated 21.02.2007, it would clearly emerge, that the complainant/prosecutrix was in a relationship of adultery on 23.12.2016, 25.12.2016 and 01.01.2007 with the appellant- accused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecutrix, that she was induced to a physical relationship by Prashant Bharti, the appellant-accused, on the basis of a promise to marry her, stands irrefutably falsified".
10. In the light of above discussed principles of law, I propose to examine the evidence available on record whether in present case the consent for physical relationship by the prosecutrix was given to the accused under misconception ie on false promise of marriage by the accused.
FINDINGS:
A) In the present case, the accused has been charged with allegation that from 07.05.2012 to 12.09.2013 at Katwaria Sarai, Delhi and at Mount Abu, Rathor Bhawan, Maliwat, New Ambika Bhawan, Rajasthan, accused committed rape upon the prosecutrix and criminally intimidated her with death. From the complaint Ex.PW11/A, statement under section 164 Cr.P.C Ex.PW11/C and in examination in chief of prosecutrix before the court, it is discernible that accused has been charged for establishing physical relationship with prosecutrix after obtaining her consent giving misrepresentation of promise of marriage. It is to be noted here that according to her own testimony, the prosecutrix/PW11 was a married lady during the period she has been alleged to have been subjected to sexual assault by the accused. It has come on record in her own examination in FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 13 of 19 chief that she was living with her husband after her marriage in the year 1991 and she started working in the clinic of the accused in the year 2010. It is clear from the record that she has not been divorced by her husband. Instead in the testimony of witness PW4 Sh. Hem Chand Joshi who happens to be husband of prosecutrix, it has come on record that the prosecutrix is the legally wedded wife of PW4 and though he had filed a divorce petition but the same was filed in the month of November, 2012 ie after the missing of the prosecutrix and even that petition was withdrawn by him later on.
B) In the present case, though the witness PW1 Sh. Shankar Joshi, PW2 Sh. Prem Chand Joshi and PW4 Sh. Hem Chand Joshi have stated that a missing report of the prosecutrix was filed but no such document has been placed on record that any missing report of the prosecutrix dated 07.05.0212 was made to any Police Station. In her own examination in chief, the prosecutrix has stated that accused used to talk with her sweetly and asked her to accompany her after 5-6 months of her employment and her friendship with the accused carried till 2012 when she was taken by the accused to Mount Abu stating that she should not inform to her husband and accordingly as told by the accused, she accompanied him to Mount Abu alone. She has further deposed that accused told her that he would marry her and she should leave her husband as she was not having child and her husband was alcoholic and accused established physical relationship with her till October, 2013 but did not marry her, though, he continued to have sexual relationship with her on the false promise of marriage. Thus, from her own testimony, it is clear that she is a well grown lady aged about 40 years and in fact she was elder to accused at the time of entering into relationship with the accused and therefore, she must be aware of the consequences of the relationship with accused. Further, she being the legally wedded wife of PW4, could not marry with accused while her marriage was still subsisting and at the FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 14 of 19 best this relationship can be regarded as adultery.
C) In the present case, as per the prosecution case, the accused brought the prosecutrix back and dropped her at her native place at Pithoragarh on 12.09.2013 and the present complaint was made on 10.10.2013. However, none of the witness has explained any reason for delay in lodging the complaint. In her cross examination, the prosecutrix has deposed that she lodged the complaint on 10.10.2013 and on that date her brothers were accompanying. She further testified that she does not remember who write her complaint in the PS and does not remember the whole fact written in that complaint and she only remember the some material thereof. From the above testimony of the prosecutrix, it can be seen that there is material omission of the facts in her examination in chief like that she does not depose anything before the court that when she was dropped by the accused at her native place, she was beaten by the accused.
D) Though, no charge has been framed against the accused for the offence punishable under section 406 IPC but it has been argued on behalf of the State that it appears that charge under section 406 IPC has not been framed inadvertently. However, the detailed order dated 21.02.2014 was passed by learned Predecessor Court and therefore, it can not be said that there was any inadvertence in framing of the charge. But since the arguments has been advanced on behalf of the State, I propose to examine the testimony led on behalf of the State on the aspect of commission of offence under section 406 of IPC. For proving the case under section 406 IPC, the prosecution is required to prove that the property belonging to the prosecutrix was entrusted with the accused or he was having any dominion over the property or he dishonestly misappropriated or converted the property for his own use or dishonestly used FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 15 of 19 or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, expressly or impliedly which he has made touching the discharge of such trust or willfully suffers any person so to do.
E) In the present case, in her testimony, PW11 has not made it clear that she had taken all her aforesaid articles while leaving her home with the accused on 07.05.2012 to Mount Abu nor she has deposed anything that these properties were ever entrusted with the accused. Furthermore, in the entire testimony of the prosecutrix, it has not come on record that the said properties were misappropriated by the accused. Even if the evidence led on behalf of the prosecution is believed to be true, at the best it can be held that those properties which were recovered from the possession of the accused, were simply lying with the accused at the time of its recovery. Though, she has deposed that she had told to the police that jewelery was given by her parents at the time of her marriage but there is no such averments in the complaint. Even in her cross examination, she has stated that she got all three FDs of Rs.30,000/- each done from her own saving. However, if the testimony of the prosecutrix and her husband are taken into consideration, her husband was earning Rs.4000/- per month and according to her, the house expenses were Rs.200/- per day and thus the salary of the husband of prosecutrix was not sufficient to run the daily expenses of the house hold. According to prosecutrix, she was earning Rs.6000/- per month prior to joining the clinic of the accused in Export Company. However, she has failed to disclose the name and exact address of that Company. She has further deposed that she had RD account for the purpose of saving but she has failed to prove RD account with Central Bank of India, Malviya Nagar, Delhi. She has further testified that she has told to the police at the time of lodging of complaint that she was having recurring deposit FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 16 of 19 in the said bank and she was working in an Export Company and she herself went to deposit the amount. However, perusal of the complaint makes it clear that no such averment was made by the prosecutrix in her complaint and it appears to be the improvement on the part of the prosecutrix.
F) It is to be noted here that at the time of arrest of the accused, witness PW1 was also accompanying with the police. However, in his testimony, he has not deposed anything about the recovery of jewelery articles or FDs from the place of arrest of the accused at Mount Abu. Accused is stated to have been arrested from the house of one Neeraj Singh by PW7 HC Jai Prakash who was also accompanying along with IO but said Neeraj Singh has not been arrayed as a witness of arrest or of recovery. PW9 SI Sunil Kumar has stated that accused was residing in house owned by a landlady but he does not remember her name nor he recorded her statement. Further in her cross examination, PW16/IO WSI Asha Singh has stated that she did not verify from the call details of the brother of the prosecutrix as to whether she was in touch with them during her alleged absence from Delhi and she has gone to depose to the extent that prosecutrix was not aware of the mobile number of her brothers nor they were aware of the number of the prosecutrix. However, in her cross examination, the prosecutrix has clearly deposed that she called her brother from Mount Abu through previous landlord Sh. Ranjeet Singh and after about 2-3 days of her calling to her brothers, she returned to her native village. Thus, in the circumstances, recovery of the above said articles from the possession of the accused appears to be doubtful and possibility of planting of case property can not be ruled out.
11. The Hon'ble Supreme Court has held in case titled as " Harchand Singh and Another vs State of Haryana" reported in AIR 1974 SC 344 as under:-
"11. The function of the court in a criminal trial is to find whether the person arraigned before it as the accused is FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 17 of 19 guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be unreliable, the result would necessarily be that the court wold be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation".
12. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. In this case also, the evidence of the prosecutrix is suffering from serious infirmities and inconsistencies with other material and she had also made deliberate improvements on material point in her statement before the court.
13. It is relevant to mention at this stage that it is necessary for the prosecution to FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 18 of 19 prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
14. Thus, in view of the aforesaid discussions and facts and circumstances of the case, it is held that the prosecution has failed to prove its case u/s 376/506 IPC against the accused persons beyond reasonable doubt. Accordingly, accused stands acquitted for the said offences. He is directed to furnish fresh bail bond in the sum of Rs.25,000/- in terms of section 437A Cr.P.C.
At this stage, fresh bail bond furnished u/s 437A Cr.P.C and accepted for a period of six months. His earlier bail bond stands cancelled. Surety stands discharged. Original documents, if any be returned back to the rightful applicants after endorsement cancelled thereupon.
File be consigned to the Record Room after due completion.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/29.07.2016 Announced in open court on 29.07.2016 (Total number of page 19) (One spare copy attached) FIR No. 439/13 State vs Arun Kumar PS Vasant Vihar U/s 376/506 of IPC 19 of 19