Delhi District Court
State vs Manikant Singh @ Tarun -:: Page 1 Of 97 ::- on 18 December, 2015
-:: 1 ::-
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
State
Versus
Mr.Manikant Singh @ Tarun
Son of Mr. Ram Dhyan Singh,
Resident of 155/B 64, Guru Nanak Pura,
Near Nirman Vihar Metro Vihar, Laxmi Nagar, Delhi.
Permanent address: Village & Post Mujahna Bujuri,
District Maharaj Ganj, PS Kothibhar Mithuar Bazar, U.P.
First Information Report Number : 122/13.
Police Station Anand Parbat
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet : 24.01.2014.
before the Court of the Additional
Chief Metropolitan Magistrate
Date of receipt of file after committal in this : 20.02.2014.
Court of ASJ (SFTC)-01, West, Delhi
Arguments concluded on : 18.12.2015.
Date of judgment : 18.12.2015.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. U.M Tripathi.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission for
Women.
************************************************************
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat
Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 1 of 97 ::-
-:: 2 ::-
JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
PROSECUTION CASE
1. Mr. Manikant Singh @ Tarun, the accused, has been charge sheeted by Police Station Anand Parbat, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on three-four occasions prior to the 12.07.2013 at unknown time at "A" address which is the house of the prosecutrix (address mentioned in file as that of the prosecutrix and withheld to protect the identity of the prosecutrix) within the jurisdiction of Police Station Anand Parbat Delhi and thereafter on 12.07.2013 at about 12.30 a.m. at H.No.V-34/10, DLF, Phase III, in the flat of his friend, he committed rape upon the prosecutrix (name mentioned in file and withheld to protect her identity) under the false promise to marry her.
CHARGE SHEET AND COMMITTAL
2. After completion of the investigation, the challan was filed before the Court of the learned Additional Metropolitan Magistrate on 24.01.2014 and after its committal, the case was assigned to this Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 2 of 97 ::-
-:: 3 ::-
Special Fast Track -01, West Tis Hazari Courts Delhi vide order dated 20.02.2014.
CHARGE
3. After hearing arguments, charge for offence under section 376 IPC read with section 420 of the IPC was framed against the accused Manikant Singh @ Tarun vide order dated 20.02.2014 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, the prosecution has examined as many as 12 witnesses i.e. the prosecutrix as PW1; Ct. Umed Kumar, witness of investigation, as PW2; Ct.Suresh Kumar, witness of investigation, as PW3; Ct. Jaswinder, witness of investigation, as PW4; W/Ct.
Sangeeta, witness of investigation, as PW5; SI Bal Mukund Rai, initial Investigation Officer, as PW6; Dr. Apekhsha Sahu, who had medically examined the prosecutrix, as PW7; Ms. A, mother of the prosecutrix, (name mentioned in the file and withheld to protect the identity of the prosecutrix) as PW8; Mr. B, father of the prosecutrix (name mentioned in the file and withheld to protect the identity of the prosecutrix) as PW9; SI Bhimsen Kaushik, witness of investigation, as PW10; Mr. Rajeev Ranjan, Nodal Officer, Tata Teleservices Ltd., as PW11; and ASI Kiran Sethi, the Investigation Officer, as PW12.
5. The accused and his counsel have cross examined all the prosecution witnesses except PW5, PW6, PW7, PW10 and PW11. The evidence Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 3 of 97 ::-
-:: 4 ::-
of PW5, PW6, PW7, PW10 and PW11 remains uncontroverted and unrebuuted and can be presumed to have been admitted by the accused.
6. On 16.05.2014, Mr.U.M.Tripathi, counsel for the accused on behalf of accused, had admitted the evidence of Dr. Neeraj and Dr. Arun Singh who had medically examined the accused on 22.11.2013; Ms. Collette Rashmi Kujur, learned Metropolitan Magistrate, who had recorded the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the prosecutrix and HC Jagdish Parsad, duty officer who had lodged the FIR. The accused admitted the evidence of all the abovementioned witnesses and the documents prepared by them and/or bearing their signatures.
7. The following exhibits are put on the documents prepared by the above mentioned witnesses:
i. MLCs of the accused prepared by Dr. Neeraj is Ex. P1 and MLC prepared by Dr. Arun Singh is Ex.P2.
ii. Copy of FIR is Ex. P3.
iii. The statement of the prosecutrix under section 164 Cr.PC
is already exhibited as Ex.PW1/B.
8. It was also ordered on 16.05.2014 that the evidence of the abovesaid witnesses and the documents prepared by them and/or bearing their signatures shall be read against the accused at the time of final disposal of the case.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 4 of 97 ::-
-:: 5 ::-
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
9. In his statement under section 313 of the Cr.P.C.,recorded on 11.08.2015, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and he has not committed any offence. He is not known as Tarun. His name is Manikant Singh. There was a dispute regarding rent between the father of the prosecutrix and himself while he was living as a tenant in their house as he wanted to increase the rent. The prosecutrix had gone away with someone else. Her father had telephoned him on 13.07.2013 and requested to reach railway station as his daughter had come there. When he reached the railway station, he saw that the father of the prosecutrix being scolded by the police as he could not control his daughter. No allegations against him were made by the prosecutrix at the railway station before the police officials.
Thereafter on 15.07.2013, he was implicated in the present case in PS Anand Parbat. He had not committed any offence. The accused also preferred to lead defence evidence and examined Mr.Amit Kumar as DW1 who produced the office records of the office of the accused.
ARGUMENTS
10.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 5 of 97 ::-
-:: 6 ::-
11.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 376 read with section 420 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
12.The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the ac- cused on the record. The name of the accused is Manikant Singh not Tarun and he his identity as the culprit is not established. There is an unexplained delay in lodging of the FIR. He was attending to his duty at the time of the alleged incident. The CDRs show that the pros- ecutrix was not in Gurgaon but in Trans Yamuna area. No public wit- nesses have been examined regarding the visit of the site at Gurgaon nor the owner of the said flat has been cited as a witness or exam- ined. Prosecutrix has refused her gynecological examination and also not given her clothes to the doctor. There is no medical or forensic evidence against the accused. The motorcycle of the accused was not seized nor the place of repairing the motorcycle has been pointed out nor the mechanic who has put the puncture has been examined. There are contradictions in the evidence of the prosecutrix and her parents which have not been justified by the prosecution.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 6 of 97 ::-
-:: 7 ::-
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
13.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 7 of 97 ::-
-:: 8 ::-
conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
14.Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly crime which is inhuman and barbaric when the victim is known to the culprit, as in the present case, since the accused has remained a tenant in the house of the prosecutrix.
15.Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
16.As per the allegations of the prosecution, accused Mr.Manikant Singh @ Tarun had on three-four occasions prior to the 12.07.2013 at unknown time at "A" address which is the house of the prosecutrix Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 8 of 97 ::-
-:: 9 ::-
and thereafter on 12.07.2013 at about 12.30 a.m. at H.No.V-34/10, DLF, Phase III, in the flat of his friend, he committed rape upon the prosecutrix under the false promise to marry her.
17.The prosecution case unveils with the prosecutrix (PW1) coming to the Police Station Anand Parbat along with her father Mr. B (PW9) on 15.07.2013 and she had brought a written complaint (Ex.PW1/A). SI Bal Mukund Rai (PW6) was assigned this case by SHO. SI Bal Mukund Rai had written the rukka (Ex.PW6/A) and had got the FIR (Ex.P-3) registered. The prosecutrix (PW1) was taken to Lady Harding Medical College and Smt. S.K.Hospital by W/Ct. Sangeeta (PW5) and she was medically examined by Dr. Apeksha Sahu (PW7) vide MLC (Ex.PW7/A). The prosecutrix (PW1) was produced before a learned Magistrate, who recorded her statement under section 164 of the Cr.P.C. (Ex.PW1/B). The prosecutrix had pointed out the place of incident to the police and the site plan (Ex.PW1/C) was prepared. She did not know the address of the flat at that time where the accused had raped her but as she knew its location she had taken the police there and pointed out the place of incident vide pointing out memo (Ex.PW1/D). The accused was arrested by the police vide arrest memo (Ex.PW1/E) in the presence of the prosecutrix (PW1) and her mother Ms.A (PW8) and his personal search was conducted vide personal search memo (Ex.PW1/F). Accused gave his disclosure statement (Ex.PW3/A) On 22.11.2013, the accused led IO/ASI Kiran Sethi (PW12) and other police officials to the place of incident and at the instance of prosecutrix IO/ASI Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 9 of 97 ::-
-:: 10 ::-
Kiran Sethi (PW12) prepared site plan (Ex.PW1/C) and pointing out memo (Ex.PW1/D). Accused along with Ct. Umed Kumar (PW2) and Ct. Jasvinder Singh (PW4) had taken the accused to RML hospital for his medical examination and he was examined vide MlC (Ex.P-1) and also taken to Lady Harding Medical College for his medical examination and he was examined vide MLC (Ex. P-2). During investigation, IO/ASI Kiran Sethi (PW12) came to know that the accused had left the prosecutrix at Old Delhi Railway Station, therefore, she along with the prosecutrix and her father went to Old Delhi Railway station and SI Bhim Sen (PW10) had conducted enquiry in this regard, who was found to be on C.L on that day. The counselling of prosecutrix was also got done from the NGO. IO/ASI Kiran Sethi (PW12) had prepared the challan and filed before the Court. Mr. Rajeev Ranjan (PW11) Nodal Officer has proved the CDR (Ex.PW11/A) of mobile phone of the prosecutrix (number mentioned in the file and withheld to protect the identity of the prosecutrix) for the period 01.07.2013 to 15.07.2013, certificate under section 65 of Evidence Act (Ex.PW11/B), photocopy of customer application form (Ex. PW11/C) and photocopy of election card (Ex.PW11/D).
THE EVIDENCE OF PROSECUTION WITNESSES
18.It is essential to elaborate in brief the evidence of the witnesses of the prosecution.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 10 of 97 ::-
-:: 11 ::-
Public Witnesses
19.PW1 is the prosecutrix. Her evidence shall be discussed later on separately.
20.PW8, Ms.B, who is the mother of the prosecutrix, had deposed that her daughter told her about one year ago that when she was admitted in the hospital for 25 days, accused Mr. Manikant Singh @ Tarun used to do galat-galat with the prosecutix and showed her pornographic movies in the computer when she was alone at that time and had removed her clothes and had forcibly raped her. Accused had also threatened her daughter that he would kill her brother if she disclosed about the incident to any one and she had told her these facts about one year ago. In July, 2013, when her daughter had made the complaint to the police, she had come on the same night from her native village and met her daughter on the same night and her daughter had told that accused Manikant had taken her to the flat of his friend at Gurgaon where her daughter was kept by the accused with him for one night and she was raped by the accused. During investigation, the accused was arrested by the police from outside the MCD office, near bus stand Anand Parbat and she and her daughter had duly identified the accused and arrest memo of accused (Ex.PW1/E) and his personal search memo (Ex.PW1F) were prepared.
21.PW9, Mr.A, who is the father of the prosecutrix, has deposed that accused Mr. Manikant Singh @ Tarun used to talk his daughter on Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 11 of 97 ::-
-:: 12 ::-
phone and he had caught her daughter while talking on phone and he had taken the phone from her and it was confirmed that she was talking to accused Manikant. She told him that the accused had telephoned her. He tried to make the accused understand that he should not call his daughter but he did not mend his ways and continued to talk his daughter despite his repeated requests to him. On the night of 12.07.2013, the prosecutrix did not come back home and he made efforts to search her and had doubts that she had gone some where with accused Manikant. He tried the mobile phone number of the prosecutrix but it was found switched off and thereafter, he called on the mobile phone of accused Manikant but he did not pick up his call. On the morning of 13.07.2013, the accused responded to his call and told him that the prosecutrix was with him. On the evening of 13.07.2013, accused Manikant called him on his mobile phone informing him that he had come to Police Sttaion Old Delhi Railway Station with the prosecutrix and after that he received a telephonic call from the police of Police Station Old Delhi Railway Station informing him that the prosecutrix had come to the Police Station with accused Manikant. He told the police official of Police Station Old Delhi Railway Station that he had made a verbal complaint in Police Station Anand Parbat regarding the fact that the prosecutrix was missing since 12.07.2013. On 15.07.2013, he along with his daughter went to Police Station Anand Parbat, where his daughter lodged a complaint against the accused and his daughter told him that accused had taken her some where in Gurgaon, where he had physical relations with her and his daughter was sent to Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 12 of 97 ::-
-:: 13 ::-
hospital for her medical examination.
Police Witnesses
22.PW2, Ct. Umed Kumar, has deposed that on 22.11.2013, he joined the investigation of the present case on the directions of ASI Kiran Sethi and he had taken the accused for medical examination and doctor has handed over the MLC of accused and exhibits of the case were not taken as the prosecutrix had already refused her gynecological examination and had not given her samples.
23.PW3, Ct. Suresh Kumar, has deposed that on 22.11.2013, he joined the investigation on the directions of the IO/ASI Kiran Sethi, he took the accused to Lady Harding Medical College Hospital for his medical examination and the doctor had handed over the MLC of accused to him and he handed the same over to the IO on return to the PS Anand Parbat.
24.PW4, Ct. Jasvinder Singh Umed Kumar, has deposed that on 22.11.2013, he joined the investigation of the present case on the directions of ASI Kiran Sethi and the accused pointed out the place of incident vide pointing out memo already exhibited (Ex.PW1/D), and the site plan was also prepared which is already exhibited as (Ex.PW1/C). Thereafter on the direction of IO, he along with Ct. Umed Kumar had taken the accused to RML hospital for his medical examination. Doctor had handed over the MLC of accused, the exhibits pertaining to him contained in sealed pulenda and the sample Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 13 of 97 ::-
-:: 14 ::-
seal of the hospital, which he had further handed over to the IO.
25.PW5, W/Ct. Sangeeta, has deposed that on 16.07.2013,she joined the investigation of the present case on the directions of the IO/ASI Kiran Sethi and had taken the prosecutrix to Lady Harding Medical College for her medical investigation.
26.PW6, SI Bal Mukund Rai, has deposed that on 15.07.2013, the investigation of the present case was assigned to him by the SHO and prosecutrix had come to the PS along with her father Mr.A and had made a complaint of her being raped by accused Manikant Singh @ Tarun. Prosecutrix had brought a written complaint, which is already exhibited (Ex.PW1/A) and had written the rukka (Ex.PW6/A) and had got the FIR lodged.
27.PW10, SI Bhimsen Kaushik, has deposed that on 13.07.2013, he was posted as SI in police station Old Delhi Railway Station and in the evening he noticed that a boy and a girl were arguing near the entrance gate of the Railway Station towards the Chandni Chowk, which is near the Police Station and he went to them and enquired if anything was wrong on which the girl told him to call her father. He has deposed the name of the girl i.e. of the prosecutrix. The name of boy was Manikant. He phoned Mr.A, father of the prosecutrix, and he came to Old Delhi Railway Station from where he took his daughter and went away. Neither the prosecutrix nor Mr.A made any complaint, verbal or in writing, against the accused to him or to Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 14 of 97 ::-
-:: 15 ::-
Police Station Old Delhi Railway Station. He had specifically enquired from the prosecutrix and her father if anything was wrong and if they wanted to make any complaint but both of them had said that everything was in order and they did not have to make any complaint against anyone. The girl seemed to be in a normal condition and thereafter, the accused also went away.
28.PW12, ASI Kiran Sethi, is the Investigation Officer of the case and has deposed that on 16.07.2013 she was posted at Police Station Anand Parbat and the present case was marked to her for further investigation after the registration of the FIR. During investigation, she met the prosecutrix and her father in the Police Station itself and she along with lady Ct. Sangeeta took the prosecutrix for medical examination to Lady Harding Medical College. The prosecutrix had refused for her gynecological examination, therefore, no exhibits were collected by the doctor. During investigation, she came to know that the accused Manikant had left the prosecutrix at Old Delhi Railway Station. Therefore, she along with prosecutrix and her father went to Old Delhi Railway Station. On 17.7.2013, she recorded the statement of the prosecutrix under section 161 Cr.P.C. and also got recorded her statement under section 164 Cr.P.C before learned Metropolitan Magistrate and kept on searching for the accused but he could not be located. On 21.11.2013, on the basis of secret information that the accused will come in the area of Police Station Anand Parbat, she called the prosecutrix and her mother and also joined beat constable Suresh in the raid. They took position at MCD Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 15 of 97 ::-
-:: 16 ::-
office and at around 6.00-6.15 p.m., the accused was seen standing at the bus stand of route no. 212. The prosecutrix pointed out the accused and was apprehended. The accused was arrested vide arrest memo (Ex.PW1/E) and his personal search was taken vide personal search memo (Ex.PW1/F). The disclosure statement of accused (Ex.PW3/A) was recorded. The accused was got medically examined and was put in the lock up. On the next day i.e. 22.11.2013, the accused led them to the place of incident and at the instance of prosecutrix, she prepared site plan (Ex.PW1/C) and pointing out memo (Ex.PW1/D). The counseling of prosecutrix was also got done from the NGO. She prepared the challan and filed before the Court. She has been cross examined at length.
Medical Witness
29.PW7, Dr. Apeksha Sahu, Senior Resident in Lady Harding Medical Hosptial, had medically examined the prosecutrix and has proved the MLC of the prosecutrix (Ex.PW7/A).
Witness from Tele Services Provider
30.PW11, Mr. Rajeev Ranjan, Nodal Officer, Tatatele Services Ltd. had proved the record i.e. CDR of mobile phone number (number mentioned in the file and withheld to protect the identity of the prosecutrix) (number used by the prosecutrix) for the period 01.07.2013 to 15.07.2013 (Ex.PW11/A) along with requisite certificate under section 65 B Evidence Act (Ex.PW11/B). He had also proved the customer application form of the abovesaid mobile Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 16 of 97 ::-
-:: 17 ::-
number (Ex.PW11/C), photocopy and election I card of the applicant (Ex.PW11/D), the location chart of the aforesaid cell ID of the aforesaid period (Ex.PW11/E).
TESTIMONy OF THE DEFENCE WITNESS
31.It is essential also to elaborate in brief the evidence of the witness of the defence.
32.DW1, Mr. Amit Kumar, Assistant Manager, AMTL has deposed that he has been authorised on behalf of the company to appear before the Court and had brought the summoned record. Accused Manikant Singh was employed on the post of Diploma Engineer Trainee, IT Department and was working since 11.06.2012 in their office. He hadbrought the appointment letter dated 11.06.2012 (Ex.DW1/A). On 12.07.2013, the accused was present in the office since 9.20 a.m. till 18.15 p.m. The visitor gate / entry register (Ex.DW1/B) was produced by the witness. On 13.07.2013, the accused had further joined his services. His attendance on 13.07.2013 is Ex.DW1/C and his duty hours, on that day, were from 8.00 a.m. to 16.15 p.m. The duty hours register (Ex.DW1/D) was produced by the witness.
33.In his cross examination by the Additional Public Prosecutor for State, DW1 has admitted that accused Mr. Manikant Singh was engaged as trainee as per letter (Ex.DW1/A) for a specific period from 11.06.2012 to 10.06.2013. He has voluntarily stated that the Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 17 of 97 ::-
-:: 18 ::-
service was further extended from 10.06.2013 to 13.07.2013 and he worked till then. The Ex.DW1/A was not issued by him and it bears the signatures of his Director and the Director is working in their office till date. His duty hours from 09:00 a.m. to 05:30 p.m. There was no bio metric system for the attendance of the employees in their office and today, he had not brought any complete record regarding the total number of employees dated 12.07.2013 and had brought Muster Role in which the names of 73 employees are given and the name of accused Manikant Singh is at serial number 34 in the month of July, 2013. He admitted that the signatures of the accused Manikant are not mentioned on 1st to 12th July, 2013. He has voluntarily stated that the accused was present on their second unit at B-62, Sector-83, Noida since 02.07.2013 to 12.07.2013 and photocopy of the relevant entry is Ex.DW1/C. He has denied that the accused was not present in their office on 12.07.2013 and the distance between the main office and the second unit is about 4 km. He has further denied that the record produced by him is fabricated and manipulated. He has admitted that he cannot see physically all the times the employees working in the department and denied that he is deposing falsely.
IMPORTANT ISSUES
34.The important issues and the points in dispute are being discussed hereinafter.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 18 of 97 ::-
-:: 19 ::-
IDENTITY OF THE ACCUSED
35.The prosecution has claimed that the name of the culprit is Mr.Manikant Singh @ Tarun who has been produced as accused before the Court. The identity of the accused Mr.Manikant Singh @ Tarun is disputed by the accused as the name of the accused is only Mr.Manikant Singh and not Tarun. It is also submitted on behalf of the accused that the prosecutrix was involved with one Tarun with whom she had eloped and had physical relation and he is not Tarun.
36.It may be mentioned here that the name of the accused in the chargesheet at No.11 is mentioned as Mr.Manikant Singh @ Tarun.
In the arrest memo (Ex.PW1/E), personal search memo (Ex.PW1/F), disclosure statement (Ex.PW3/A), pointing out memo (Ex.PW1/D), MLC (Ex.P-2), copies of remand papers, the name of the accused is mentioned as Mr.Manikant Singh. On 20.02.2014, when the charge was framed against the accused as Manikant Singh @ Tarun, he has signed on it as Manikant but has not said that his name is not Tarun.
37.In the complaint (Ex.PW1/A) and the FIR (Ex.P-3), the prosecutrix has given the name of the culprit as Mr.Tarun. In her statement under section 164 of the Cr.P.C. (Ex.PW1/B), the prosecutrix has given the name of the culprit as Mr.Manikant Singh and that he had told his name as Tarun. She has also referred to him as Mani. In her evidence as PW1, the prosecutrix has given the name of the accused/culprit as Mr.Manikant Singh @ Tarun.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 19 of 97 ::-
-:: 20 ::-
38.The accused has been identified in the Court by the prosecutrix (PW1), Ct.Suresh Kuamr (PW3), SI Bhimsen Kaushik (PW10) and ASI Kiran Sethi (PW12) as Mr.Manikant Singh @ Tarun. Ct.Umed Kumar (PW2) and Ct.Jaswinder Singh (PW4), in their evidence, have identified the accused as Mr.Manikant Singh @ Tarun. Ms.B, mother of prosecutrix (PW8), Mr.A, father of the prosecutrix (PW9), in their evidence, have identified the accused as Mr.Manikant.
39.In her cross examination on behalf of the accused, PW12 ASI Kiran Sethi has deposed that "It is correct that the name of the accused is Manikant does not figure in FIR and he was named as Tarun. Later on it was revealed that Tarun was also known as Manikant. The victim and her family had stated that accused was also known as Manikant. It is correct that the victim had told me the name of culprit as Tarun. She had told me that she used to address the accused as Tarun and later on his name was revealed to be Manikant."
40.PW1, the prosecutrix, in her cross examination has been put some suggestions and questions regarding the name of the culprit being Tarun. She has deposed that "It is wrong to suggest that I had run away from my own with some other boy named Mr.Tarun and was that Old Delhi Railway Station and had then called the accused and told him about the same who further informed my parents that I had run away with a boy name Mr. Tarun and on their request the accused had come to Old Delhi Railway Station to bring me Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 20 of 97 ::-
-:: 21 ::-
back. It is wrong to suggest that on the request of my parents that he should bring me to PS Anand Parbat the accused had declined and then I in connivance with my parents had falsely implicated the accused in the present case in order to save the other boy name Mr.Tarun. It is wrong to suggest that accused Manikant is not known as Mr. Tarun......"
41.In his defence, the accused has examined DW1 Mr.Amit Kumar, who has produced the appointment letter of the accused (Ex.DW1/A) and his other office record (Ex.DW1/B to Ex.DW1/D) wherein the name of the accused is mentioned as Manikant Singh.
42.It is not in dispute that the accused lived in the house of the parents of the prosecutrix as tenant and he was known to the prosecutrix. In question number 2 in the statement under section 313 of the Cr.P.C., the accused has answered that "However, it is admitted that I was inducted as tenant in the year, 2008 but I introduced myself as Manikant Singh and I never told my name as Tarun either to the prosecutrix and her parents at the time of induction in the house. Even police verification was also called by the father of the prosecutrix and he took copy of my driving licence. Wherein my name was written as Manikant Singh son of Mr. Ram Dhyan Singh. I can place the copy of my DL in my defence. I have never used my name as Tarun at any place."
43.Here, it may be mentioned that the accused has not produced his driving licence nor the police verification report to show that his Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 21 of 97 ::-
-:: 22 ::-
name is Manikant and not Tarun. He has also not produced the alleged Tarun with whom the accused claims that the prosecutrix had eloped. Even at the earliest opportunity before this Court, when the accused was produced from judicial custody and charge was framed against him in the presence of his counsel, he did not dispute the name which was written in the charge nor submitted that his name is Manikant Singh and he is not known as Tarun. Even earlier, when he was arrested by the police and produced before the Court of the learned Metropolitan Magistrate and remanded to judicial custody, he did not submit before the police and the learned Metropolitan Magistrate that his name is Manikant Singh and his name is not Tarun. For the first time, he has raised this plea during the cross examination of the prosecutrix and has not substantiated his claim.
44.The fact that the prosecutrix has earlier named the culprit in the complaint (Ex.PW1/A) as Tarun and then named him as Manikant and Mani and also explained that he had disclosed his name as Tarun in her statement under section 164 Cr.P.C. (Ex.PW1/B) and then identified him in the Court in her evidence as PW1 as Manikant Singh @ Tarun shows that the person facing trial before this Court is the alleged culprit. He has been identified by the prosecutrix, her parents, police witnesses and the Investigation Officer. Even in the MLC of the prosecutrix (Ex.PW7/A), it is clear that the name of the accused/culprit is Manikant (Tarun). The complaint (Ex.PW1/A) and the MLC (Ex.PW7/A) are of the same date i.e. 16.07.2013 and if in the complaint the name of the culprit is mentioned as Tarun, it is Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 22 of 97 ::-
-:: 23 ::-
clarified as Manikant (Tarun) in the MLC (Ex.PW7/A). The fact that the person before the Court is the culprit and had committed the offence against the prosecutrix is clear from the evidence of the prosecutrix and other prosecution witnesses who have identified him.
45.It cannot be ignored that it is also a fact that many persons have a particular name on record and papers but they also have a pet name or nick name which never comes on any record as this pet name is used by persons who are closely related or friends with them and not in the office records. Similarly, it is possible that the accused is known as Manikant Singh on record and uses Tarun as his pet name or nick name. Even when he is identified in the Court as the culprit who committed the offence against the prosecutrix, his defence that he is not Tarun named in the complaint as the prosecutrix has explained his name to Manikant and also Tarun in her statement under section 164 of the Cr.P.C. (Ex.PW1/B), he has not examined himself or his family to prove that he is not Tarun. The accused has not produced any other man by the name of Tarun in the Court in his defence and his plea that he is not Tarun is not tenable especially when he is identified by the prosecutrix and the prosecution witnesses in the Court as the accused/culprit. It is also clear from the office records of the accused (Ex.DW1/A to Ex.DW1/D) produced by DW1 that his name in the office is Manikant Singh.
46.Accused has not only been identified by name of Manikant Singh @ Tarun but also as a former tenant of her parents and has also been identified in person by the prosecutrix and the prosecution witnesses. Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 23 of 97 ::-
-:: 24 ::-
47.Therefore, the identity of the accused as the culprit Mr.Manikant Singh @ Tarun stands established.
AGE OF THE PROSECUTRIX
48.There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In statement under section 164 of the Cr.P.C. (Ex.PW1/B) and her MLC (Ex.PW7/A) the prosecutrix has mentioned her age as 19 years and in her evidence before the Court, the prosecutrix has mentioned her age as 2o years. As per the prosecution, she was a major at the time of the alleged incident.
49.Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
50.DrArun Kumar had had medically examined the accused in Lady Hardinge Medical College and Smt.S.K.Hospital vide MLC (Ex.P-2) and Dr.Neeraj had had medically examined the accused in RML hospital vide MLC (Ex.P-1). He was referred the accused to RML for potency test vide MLC (Ex.P-1) from Lady Hardinge Medical College and Smt.S.K.Hospital vide MLC (Ex.P-2).
51.It is mentioned in the MLC (Ex.P-1) by Dr.Neeraj that "Refd. to Urologist for potency test". However, the prosecution has not proved that the accused was taken to the Urologist and medically examined Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 24 of 97 ::-
-:: 25 ::-
to ascertain his potency.
52.It may be mentioned here that the accused has not disputed his potency but it was the bounden duty of the prosecution to prove that the accused was capable of committing the offence of rape and was potent. There is nothing on the record to show that the accused is potent or medically capable of committing the offence of rape.
53.Therefore, it is clear that the prosecution has failed to prove that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX
54.It has been argued on behalf of the accused that as there is no medical or forensic evidence against the accused, it indicates that he has been falsely implicated in this case as the prosecutrix does not have any injury and the prosecutrix had refused her gynecological examination and she had not given her samples.
55.The Additional Public Prosecutor has argued that the medical and forensic evidence is only for corroboration.
56.It can be seen from the MLC of the prosecutrix (Ex.PW7/A) which was prepared on 16.07.2013 at 01:00 pm (the alleged incident is of 12.07.2013) that she does not have any external injuries. She was menstruating. She had told the doctor that "I don't give consent for Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 25 of 97 ::-
-:: 26 ::-
internal examination". She has even refused her gynecological examination.
57.It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC-Ex.PW7/A), the probability is that rape is not committed.
58.These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor. She has refused her internal gynecological examination and has not given her samples to the doctor. In such a situation, if the last sexual contact was just few days earlier, then there could have been presence of semen in her exhibits, if she had agreed to give the same and got her internal gynecological examination conducted. The fact that the prosecutrix has refused her gynecological examination and no reason for the same has been given by the prosecutrix as well as the prosecution indicates that the offence may not have been committed. The absence of injuries on her body and her refusal for her internal gynecological Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 26 of 97 ::-
-:: 27 ::-
examination throw a shadow of doubt on the claim of the prosecutrix that she was raped by the accused.
59.There is nothing incriminating against the accused in the medical evidence produced by the prosecution.
60.Although there is nothing incriminating against the accused in the medical and forensic evidence produced by the prosecution, but per se, the ocular and oral evidence as such cannot be ignored, and lack of medical and forensic evidence does not indicate that the accused is innocent.
61.It is clear from the record that there is nothing incriminating against the accused in the medical evidence produced by the prosecution and there is no forensic evidence against him.
DELAY IN FIR
62.The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
63.The counsel for the accused has argued that there is a delay in lodging the FIR which was lodged after due deliberation and consultation.
64.The contention of the prosecution that there is no delay in lodging the Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 27 of 97 ::-
-:: 28 ::-
FIR as the prosecutrix lodged the complaint immediately after the incident of rape.
65.The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction.
Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
66.It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
67.In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 28 of 97 ::-
-:: 29 ::-
same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
68.Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
69.In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any Sessions Case Number : 28 of 2014. Unique Case ID Number : 02401R0042872014. FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code. State versus Manikant Singh @ Tarun -:: Page 29 of 97 ::-
-:: 30 ::-
case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
70.Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
71.The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
72.It is claimed by the accused that as the FIR (Ex.P-3) has been lodged after a long delay on 15.07.2013 at 22:45 hours (10:45 mm) while the allegations made by the prosecutrix in her complaint (Ex.PW1/A) (which is dated 16.07.2013) are that the accused had raped her on Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 30 of 97 ::-
-:: 31 ::-
12.07.2013. The delay in lodging of the FIR has been not explained by the prosecution.
73.The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible.
74.As per the complaint / statement of the prosecutrix to the police, (Ex.PW1/A), which is dated 16.07.2013, the physical relations were established (without her consent on a false promise of marriage) on 12.07.2013.
75.In her MLC (Ex.PW7/A) which was prepared on 16.07.2013, the prosecutrix has told the doctor in the history that the first sexual contact was on 10.02.2013 in the house of the accused. He promised to marry the victim to have sexual relationship with the patient. Till date victim and accused have sexual contact for 10-15 times. Last sexual contact happened on 13.07.2013.
76.In her statement under section 164 of the Cr.P.C. (Ex.PW1/B), the prosecutrix has not given any date and has stated that when her mother was hospitalized, accused had physical relations with her 2-4 times. Then on 12.07.2013, he took her to his friend's flat, where they reached at 12:30 am, and had physical relations with her and told her on the next day that they will get married.
77.In her examination in chief, the prosecutrix as PW1, has deposed that Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 31 of 97 ::-
-:: 32 ::-
on 12.07.2013, the accused took her to his friend's flat at Gurgaon, Haryana, where they reached at about 12:30 am, and raped her. He forcibly had physical relations with her without her consent.
78.The alleged incident of rape was committed on 12.07.2013 (as per the complaint of the prosecutrix (Ex.PW1/A); on 10.02.2013 and 10- 15 times later and lastly on 13.07.2013 as per the MLC (Ex.PW7/A); when her mother was hospitalized, 2-4 times and on 12.07.2013 as per the statement under section 164 Cr.P.C. (Ex.PW1/B); and on 12.07.2013 as per examination in chief.
79.Here, it may also be mentioned that the accused has been charge also on the allegations that three-four occasions prior to 12.07.2013, the accused had physical relations with her on a false promise to mary her and PW9 has deposed that the cacused had raped the prosecutrix in the year 2010 and in June/July, 2012, Mr.Madan Sagar, her brother, had told her about the rape of her daughter by the accused but apparently no complaint or FIR was got registered nor any explanation for the same is coming forth from the prosecution.
80.It is clear that the prosecutrix preferred to remain silent and not complain to anyone prior to the lodging of the complaint. She in facts, preferred to remain silent, even at the Old Delhi Railway Station Police Station where police was available. She also did not raise any alarm or shout for help when the accused allegedly took her to Gurgaon to his friend's flat nor on return from there.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 32 of 97 ::-
-:: 33 ::-
81.Here, the judgment of the hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.
82.No explanation is coming forth from the prosecution regarding the delay. No reasonable or logical explanation is coming from the prosecution regarding the delay in lodging of the FIR on 15.07.2013 at 22:45 hours (Ex.P-3) when the alleged incident of rape occurred much earlier. The prosecutrix went on 13.07.2013 from the Old Delhi Railway Station Police Station with her father, after she told him that she was raped by the accused. She has mentioned in her cross examination dated 16.05.2014 at page 3 that "The police at Old Delhi Railway Station had made her father write that he was taking his daughter i.e myself and her father had given a written complaint in PS Anand Parbat on the same day." and then at page 5 that "I am aware that my father had written at Old Deli Rly Station while taking her that "Mai Babu Lal apni beti ko apne bhai ke saath sahi-salamat le kar jaa raha hoon". I had already told my father about the entire incident that accused had taken me to Gurgaon and raped me."
83.PW9, the father of the prosecutrix, has deposed that from Police Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 33 of 97 ::-
-:: 34 ::-
Station Old Delhi Railway Station, he along with his daughter went to PS Anand Parbat but on that day the complaint of his daughter was not entertained by the police as they were told that there is no lady police officer and were told to come on 15.07.2013 and then finally on 15.07.2013, the complaint was lodged.
84.Neither the complaint made by the father of the prosecutrix has been produced and proved by the prosecution nor any complaint has been made by her father that he was made to write what was not correct. Her father has not even lodged any missing report when the prosecutrix went from her house and no justified explanation is coming forth regarding the delay in lodging the FIR.
85.The prosecutrix and the prosecution have not been able to justify the delay and why the prosecutrix did not report the matter immediately or earlier. No logical explanation has been furnished by the prosecution for the delay, as elaborated above.
86.These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The possibility that the FIR was lodged after due deliberation and consultation cannot be ruled out. The discrepancies in the evidence and the documents regarding the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 34 of 97 ::-
-:: 35 ::-
87.Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.
THE MOST MATERIAL WITNESS - PROSECUTRIX-HER DIFFERENT STATEMENTS - ALSO COMPARED WITH OTHER EVIDENCE
88.All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
89.The prosecutrix, as PW1, has deposed that accused Manikant Singh @ Tarun came to her house in the year 2008 and had taken one room on rent of Rs.1800/- per month and had introduced himself saying that his name is Mr.Tarun. Gradually, he developed friendship with her, which later turned into love from her side and started kissing her. They used to meet without the knowledge of her parents at Karol Bagh Metro Station and also used to talk on mobile phone. On 12.07.2013 at about 6.30 p.m accused enticed her from her house and Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 35 of 97 ::-
-:: 36 ::-
took her on his motorcycle to a flat owned by his friend at Gurgaon, Haryana where they reached at about 12.30 a.m. First of all, he had taken her to Karol Bagh where he got his motorcycle serviced and thereafter, they kept roaming on the roads for a long time and finally they reached Gurgaon. Accused told her that he wanted to marry her and due to this reason, she went with the accused. The accused raped her at the flat and forcibly had physical relations with her without her consent. Next day, the accused Mr. Manikant Singh left her at Old Delhi Railway Station at about 10.30 am and returned at about 3.30 pm. He left with the railway police saying that she had run away with some other boy and was trying to leave, he was stopped by the railway police. Accused Mr. Manikant Singh again told the police that she had run away with some boy on which Inspector had slapped her. Both of them were confined by the railway police. The police of PS Anand Parbat was called and one lady police officer had telephoned her father and he came to Old Delhi Railway Station PS. Her father enquired from her whether anything wrong happened to her and she told him that she had been raped by the accused. The prosecutrix was taken to Lady Hardinge Medical College and Smt. S.K.Hospital by the police, where she was medically examined and had given her complaint to the police in writing (Ex.PW1/A). She was produced before Ms. Collette Rashmi Kujur, learned Metropolitan Magistrate, who had recorded her statement under section 164 of the Cr.P.C. (Ex.PW1/B). During investigation, she had pointed out the place of incident to the police and the site plan was prepared (Ex.PW1/C). She did not know the address of the flat at Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 36 of 97 ::-
-:: 37 ::-
that time where the accused had raped her but as she knew its location she had taken the police there and pointed out the place of incident vide pointing out memo (Ex.PW1/D). The address of the flat is mentioned in the site plan as well as the pointing out memo. Accused was arrested by the police vide arrest memo (Ex.PW1/E) and his personal search was conducted vide personal search memo (Ex.PW1/F). She has prayed that accused may be convicted and punished for the offence he has committed against her and also so that he may not spoil life of any other girl.
90.After, the prosecutrix was cross examined on behalf of the accused, the Additional Public Prosecutor has re-examined her regarding the alleged physical relations which the accused had forcibly established with her prior to 12.07.2013, regarding which charge has also been framed. Statement under section 164 of the Cr.P.C. of the witness (Ex.PW1/B) as well as the statement under section 161 Cr.P.C dated 16.08.2013 (Ex.PW1/D1) were read over to the prosecutrix. She has admitted that she had told the learned Metropolitan Magistrate all the facts which are mentioned in portion X to X of (Ex.PW1/B) and that the accused had physical relations with her on the assurance of marriage prior to 12.07.2013. She has admitted that she had told to the ASI Kiran all the facts which are mentioned in portion X to X of (Ex.PW1/D1) and that the accused had physical relations with her on the assurance of marriage prior to 12.07.2013. She has admitted that she had forgotten to mention the above facts due to lapse of time.
She was thereafter, again cross examined on behalf of the accused. Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 37 of 97 ::-
-:: 38 ::-
91.The prosecutrix, in her compliant dated 16.07.2013 (Ex.PW1/A) has stated that she used to live along with her family at the given address.
Prior to one year, one boy who told his name as Mr. Tarun used to live in their house at rent. He stayed in their rented house for about four years. During this period, he trapped her in his love. He had left their house one year ago but they used to talk on mobile. On 12.07.2013, her mother had scolded her and due to sadness, she called accused Tarun. He told her that he will marry her. On this assurance and as per his advice, she went to Dwarka Metro Station. He met her and took her on motorcycle to a vacant flat to Huda City Centre, where despite her refusal, he had established physical relations with her on pretext of marriage. Next day, in the morning, he took her to Delhi Station and handed over her to the police. Due to suspicion, he and the prosecutrix were made to sit in the police station and called her father and lodged a complaint. Due to shame/embarrassment, they did not tell anything to police. They have come to the Police Station for getting her statement recorded. Police action be taken.
92.In her MLC (Ex.PW7/A) which was prepared on 16.07.2013, the prosecutrix has told the doctor in the history that the first sexual contact was on 10.02.2013 in the house of the accused. He promised to marry the victim to have sexual relationship with the patient. Till date victim and accused have sexual contact for 10-15 times. Last sexual contact happened on 13.07.2013.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 38 of 97 ::-
-:: 39 ::-
93.The prosecutrix, in her statement under section 164 of the Cr.P.C.
(Ex.PW1/B), has stated that her father had given a room on rent to Mr. Manikant and his younger brother Mr. Kamalkant in the year 2008. He is staying in this room for five years. He is aged about 30- 35 years but he tells his age as 24 years and his name as Tarun. In the month of December, he followed her to her school. Her friends told her that these types of people are clever (chalu hote hain). She told him not follow her otherwise, she will tell her parents. He did not get scared. He did not follow her on one day but then again, he used to follow her. He started talking to her and asked her to have friendship with him but she refused two or three times. One day, when she was returning from tuition, he held her hand and told that he will not follow her, if she will talk with him. He wrote his phone number on a paper and put the same in front pocket of her schoolbag. Next day, when she went to terrace for drying the clothes, then he held her hand and kissed on her left cheek. She got perplexed and came downstairs. Due to shame, she did not tell anything to anyone. She used to go to school at 7.00 a.m. One day, as it was raining, her mother asked Mani to drop her at her school. She told her mother that she would go by foot but her mother did not listen to her and sent her with him. One day, he came to bring her home also. On return, her mother told her to bring the clothes from the terrace. When she went upstairs, it was dark in his room and she was not aware that he was present in his room. When she went to the terrace, then he held her tub and bucket and he told her to go with him to watch a film. He told her to watch a Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 39 of 97 ::-
-:: 40 ::-
film in a hall. During this period, her mother was hospitalized. On the third day, at about 4.00 p.m., when she went to terrace to see the new room which was being constructed, then he held her hand and took her to his room and he had shown her an obscene movie on a computer. As she did not like it, after ten minutes, she came downstairs. She did not talk to him for 2-3 days and he sent a message to her "jo movie dekhi vaisa karogi, hum shaddi kaar lenge." She refused him and told him that it does not happen before marriage, then he pressurized her for marriage. When her mother was hospitalized, then he had established physical relations with her, without her consent. On 12.07.2013, he took the prosecutrix to a flat of his friend and they reached at 12.30 a.m. at night. He again established physical relations with her and told her that they will get married and will go somewhere else. On the next day, he left her to Old Delhi Railway station and told the prosecutrix that he is going for some official work and will return in one hour. When more than two hours had passed, she called him at 3.00 p.m on his phone. He returned at 3.30 p.m. He took her to Delhi Police Railway Station and told that this girl had eloped with some other boy and he had apprehended them. Before she could speak anything, one Inspector had slapped her. Then one lady constable had phoned her father. Her father came to Police Station. Due to some apprehension, police officials also told the Mani to stay in the Police Station. Her father had written on paper that he was taking her daughter 'sahi salamat' and her father was made to sign on the same. Her father wanted to take Mani to Anand Parbat Station but Mani told that there were Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 40 of 97 ::-
-:: 41 ::-
known at Anand Parbat Station, therefore, he was not sent there and at night, he was left. She wanted the apprehension of Mani. He had cheated her and established physical relations with her.
94.The prosecutrix has made several improvements in her examination in chief from her earlier statements and she was confronted with the same. Some of the improvements are that she had told the police in her statement that she used to meet the accused at Karol Bagh metro station; she had told the police that on 12.07.2013 at about 6.30 p.m accused enticed her from her house and took her on his motorcycle to a flat owned by his friend at Gurgaon, Haryana where they reached at about 12.30 a.m.; she had told the police that first of all accused had taken her to Karol Bagh where he got his motorcycle serviced and thereafter they kept roaming on the roads for a long time and finally they reached Gurgaon; She had told the police that her father is a salesman and her mother is housewife and her mother suffers from piles and had gone to Ballabgarh for her treatment; she had told the police that the accused had demanded Rs. 2 lacs from my mother; she had told that accused had also threatened to kill her brother and himself, if she left the flat; she had told the learned Magistrate in her statement that the accused had taken her to Gurgaon on 12.07.2013;
she had told the learned Metropolitan Magistrate in her statement that her father had given a written complaint in PS Anand Parbat on the same day; she had told these facts to the police as well as learned Metropolitan Magistrate that she had later learnt that her father and paternal uncle (Chacha) had telephoned the accused on his mobile Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 41 of 97 ::-
-:: 42 ::-
phone on 13.07.2013 but he had disconnected their calls; her father had told her that he had telephoned the accused even on 12.07.2013 and the accused had disconnected his calls; she does not hear the mobile phone of the accused ring on 12.07.2013 and 13.07.2013 except once on 13.07.2013 at about 9.57-9.58 am when he had received the call from his office; she had told the police as well as the learned Metropolitan Magistrate that her father had lodged her missing report on 12.07.2013 and had later taken her to PS Anand Parbat on 13.07.2013 where she had given her complaint etc.
95.The contradictions in the different statements of the prosecutrix are being tabulated below. It may be mentioned here that in her examination in chief, the prosecutrix has deposed that the accused had raped her in his house and has retracted subsequently. Her cross examination by the accused shall be discussed later and is not being elaborated in the table below.
Complaint Statement under Examination in chief (Ex.PW1/A) section 164 Cr.P.C.
(Ex.PW1/B) One boy who told his Her father had given a Accused Manikant name as Mr. Tarun room on rent to Mr. Singh @ Tarun came to used to live in their Manikant and his her house in the year house at rent younger brother Mr. 2008 and had taken one Kamalkant in the year room on rent of 2008. his name as Rs.1800/- per month Tarun. and had introduced himself saying that his name is Mr.Tarun.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 42 of 97 ::-
-:: 43 ::-
He stayed in their He is staying in this ........... rented house for about room for five years.
four years.
During this period, he ........... Gradually, he trapped her in his love. developed friendship with her, which later turned into love from her side and started kissing her. They used to meet without the knowledge of her parents at Karol Bagh Metro Station and also used to talk on mobile phone.
........... He followed her to ...........
school, asked for
friendship which she
refused.
........... One day, when she was ...........
returning from tuition,
he held her hand and
told that he will not
follow her, if she will
talk with him. He wrote
his phone number on a
paper and put the same
in front pocket of her
schoolbag.
........... Next day, when she ...........
went to terrace for
drying the clothes, then
he held her hand and
kissed on her left
cheek. She got
perplexed and came
downstairs.
........... One day, as it was ...........
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 43 of 97 ::-
-:: 44 ::-
raining, her mother asked Mani to drop her at her school. She told her mother that she would go by foot but her mother did not listen to her and sent her with him.
........... One day, he came to ...........
bring her home also.
On return, her mother
told her to bring the
clothes from the
terrace. When she went
upstairs, it was dark in
his room and she was
not aware that he was
present in his room.
When she went to the
terrace, then he held
her tub and bucket and
he told her to go with
him to watch a film. He
told her to watch a film
in a hall.
........... During this period, her ...........
mother was
hospitalized.
........... On the third day, at ...........
about 4.00 p.m., when
she went to terrace to
see the new room which
was being constructed,
then he held her hand
and took her to his
room and he had
shown her an obscene
movie on a computer.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 44 of 97 ::-
-:: 45 ::-
As she did not like it, after ten minutes, she came downstairs. She did not talk to him for 2-3 days and he sent a message to her "jo movie dekhi vaisa karogi, hum shaddi kaar lenge." She refused him and told him that it does not happen before marriage, then he pressurized her for marriage.
........... When her mother was ...........
hospitalized, then he
had established
physical relations with
her, without her
consent.
He had left their house ........... ...........
one year ago but they
used to talk on mobile.
On 12.07.2013, her On 12.07.2013, he took On 12.07.2013 at about mother had scolded her the prosecutrix to a flat 6.30 p.m., accused and due to sadness, she of his friend and they enticed her from her called accused Tarun. reached at 12.30 a.m at house and took her on He told her that he will night. his motorcycle to a flat marry her. owned by his friend at Gurgaon, Haryana where we reached at about 12.30 a.m. ........... ........... First of all, he had taken her to Karol Bagh where he got his motorcycle serviced and thereafter, they kept roaming on the roads Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 45 of 97 ::-
-:: 46 ::-
for a long time and finally they reached Gurgaon.
On this assurance and ........... ........... as per his advice, she went to Dwarka Metro Station.
He met her and took He again established The accused raped her her on motorcycle to a physical relations with at the flat and forcibly vacant flat to Huda her and told her that had physical relations City Centre, where they will get married with her without her despite her refusal, he and will go somewhere consent.
had established else.
physical relations with
her on pretext of
marriage.
Next day, in the On the next day, he left Next day, the accused
morning, he took her to her to Old Delhi Mr. Manikant Singh left
Delhi Station and Railway station and her at Old Delhi
handed over her to the told the prosecutrix Railway Station at
police. that he is going for about 10.30 am and
some official work and returned at about 3.30
will return in one hour. pm.
When more than two
hours had passed, she
called him at 3.00 p.m
on his phone. He
returned at 3.30 p.m.
........... He took her to Delhi He left with the railway
Police Railway Station police saying that she
and told that this girl had run away with
had eloped with some some other boy and
other boy and he had was trying to leave, he
apprehended them. was stopped by the
Before she could speak railway police. Accused
anything, one Inspector Mr. Manikant Singh
had slapped her. again told the police
that she had run away
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 46 of 97 ::-
-:: 47 ::-
with some boy on which Inspector had slapped her.
........... Then one lady Both of them were
constable had phoned confined by the railway
her father. Her father police. The police of PS
came to Police Station. Anand Parbat was
Due to some called and one lady
apprehension, police police officer had
officials also told the telephoned her father
Mani to stay in the and he came to Old
Police Station. Delhi Railway Station
PS.
........... Her father had written Her father enquired
on paper that he was from her whether
taking her daughter anything wrong
'sahi salamat' and her happened to her and
father was made to sign she told him that she
on the same. had been raped by the
accused.
........... Her father wanted to ...........
take Mani to Anand
Parbat Station but
Mani told that there
were known at Anand
Parbat Station,
therefore, he was not
sent there and at night,
he was left. She wanted
the apprehension of
Mani. He had cheated
her and established
physical relations with
her.
96.Now the examination in chief of the prosecutrix is being compared with her cross examination.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 47 of 97 ::-
-:: 48 ::-
97.In her cross examination on behalf of the accused, the prosecutrix as PW1, has deposed that when accused had come to take a room on rent, he was accompanied by his brother Mr. Kamalkant and he had come through some known person but she did not know his name.
Her father had not got the antecedents of the accused verified before inducting him as a tenant although he had kept a copy of the electoral card of the accused. She has not seen the electoral card of the accused and had given the complaint to the police which was in her handwriting. The police had never visited her house to verify about the antecedents of the accused and his brother Mr. Kamalkant. She had told the police in her statement that she used to meet the accused at Karol Bagh metro station. She was confronted with statement Ex.PW1/A where it is not so recorded. She had told the police that on 12.07.2013 at about 6.30 p.m accused enticed her from her house and took her on his motorcycle to a flat owned by his friend at Gurgaon, Haryana where they reached at about 12.30 a.m. She was confronted with statement Ex.PW1/A where it is not so recorded. She had told the police that first of all accused had taken her to Karol Bagh, where he got his motorcycle serviced and thereafter they kept roaming on the roads for a long time and finally they reached Gurgaon She was confronted with statement Ex.PW1/A where it is not so recorded. She had never visited Gurgaon prior to 12.07.2013 and had seen the Toll Tax bridge on way to Gurgaon but she did not know whether the accused had paid any tax there. She had not seen any security guard when they had reached the flat of the friend of the accused. The flat Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 48 of 97 ::-
-:: 49 ::-
was in a four storeyed building and it was located on a third floor. There were houses in the vicinity, one house was four storeyed while the others were double storeyed. They roamed in the Karol Bagh for about half an hour. Then they went to Gurgaon and did not take any food on the way. She does not know the name of the friend of the accused in whose flat she was taken. She had come to know that the flat belonged to friend of the accused, then the IO had gone there for verification. She was wearing blue coloured jeans and light blue coloured top on 12.07.2013. Accused was wearing blue coloured jeans and red check shirt. When the accused had come to her house on 12.07.2013 at about 6.30 p.m., she was alone and there was no one else in the house. Her brother was sleeping at that time and due to this reason she has said that she was alone. Her father is a salesman and her mother is housewife and her mother suffers from piles and had gone to Ballabgarh for her treatment. She had told this fact to the police She was confronted with statement Ex.PW1/A where it is not so recorded. She had good relations with her parents and brother and shares everything with her mother and had not told her mother about her relations with the accused. Accused was working and sometimes had morning shift and sometimes evening shift and does not know till when he was doing his job. The accused had demanded money from her and was told that he wanted Rs. 2000/- but he had demanded Rs.2 Lacs from her mother. She had told the police that the accused had demanded Rs.2 lacs from her mother. She was confronted with statement Ex.PW1/A where it is not so recorded. She was produced before the learned Metropolitan Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 49 of 97 ::-
-:: 50 ::-
Magistrate at about 10.30 a.m. for her statement under section 164 Cr.P.C. and statement was recorded at about 11.50 a.m. and it took about 45 minutes for the learned Magistrate to record her statement. The learned Metropolitan Magistrate had written her statement in her handwriting as per her deposition before the learned Magistrate. The police had verified about the ownership of the flat where the offence was committed from the neighbours and the IO had recorded their names and addresses. Next day, they had left the flat at about 9.00- 9.30 a.m. and there was a lot of vacant land (khali jagah) on the way and they came straightaway to Old Delhi Railway station. They had come on the motorcycle of the accused and she did not remember the registration number of the motorcycle. She has denied the suggestion that accused does not have any motorcycle and does not know whether or not the accused has any motorcycle registered in his name. She does not raise any alarm or shout for help when the accused was taking on motorcycle to Gurgaon and also did not raise any alarm or shout for help when the accused brought her from Gurgaon to Old Delhi Railway Station. She has admitted that there were a lot of people on the road on both the days and she had seen some traffic police and police of Police Station on the road on both the days but had not asked for any help from them. She did not raise any alarm or shout for help when the accused had kept her in the flat on the night of 12.07.2013 and till the morning of 13.07.2013 and does not raise any alarm or shout for help when the accused had touched her and had physical relations with her in the flat. She had tried to leave the flat after the incident but the accused told her that Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 50 of 97 ::-
-:: 51 ::-
they would go together on the next morning and therefore she does not go out of the flat. She has voluntarily stated that accused had also threatened to kill her brother and himself, if she left the flat. She had told this fact that the accused had also threatened to kill her brother and himself, if she left the flat. She was confronted with statement Ex.PW1/A where it is not so recorded. She had also told the learned Metropolitan Magistrate in her statement under section 161 Cr.P.C. that accused had also threatened to kill her brother and himself, if she left the flat. She was confronted with the statement under section 164 Cr.P.C. Ex.PW1/B, where it is not so recorded. She has denied the suggestion that she did not have any physical relations with the accused at any point of time. She has admitted that as she was in love with the accused, she used to meet him at Karol Bagh Metro Station and also used to kiss him. She had told the learned Metropolitan Magistrate in her statement that the accused had forcibly establish physical relations with her on 12.07.2013. She was confronted with the statement under section 164 Cr.P.C. Ex.PW1/B, where it is not so recorded. She has admitted that there was police available at the Old Delhi Railway Station on 13.07.2013 and she had not asked the police to help her nor told the police that the accused had forcibly raped her in a flat at Gurgaon on 12.07.2013. She had told the learned Magistrate in her statement that the accused had taken her to Gurgaon on 12.07.2013. She was confronted with the statement under section 164 Cr.P.C. Ex.PW1/B, where it is not so recorded. When the accused did not return to Old Delhi Railway Station for about 3 hours, then she had telephoned him from a public Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 51 of 97 ::-
-:: 52 ::-
booth and he told her that he was coming back but he did not return immediately and came around at about 3.30 p.m. When the accused had told the police at Old Delhi Railway Station that she had ran away with some boy, she could not tell the police that it was the accused himself who had taken her and raped her as the Inspector had slapped her. The Inspector was in civil dress and she did not know his name. She had told her father when he had come to Old Delhi Railway Station that the accused had taken her to a flat of his friend in Gurgaon and had raped her. The police at Old Delhi Railway Station had made her father write that he was taking his daughter i.e. the prosecutrix and her father had given a written complaint in Police Station Anand Parbat on the same day. She had told the learned Metropolitan Magistrate in her statement that her father had given a written complaint in Police Station Anand Parbat on the same day. She was confronted with the statement under section 164 Cr.P.C. Ex.PW1/B, where it is not so recorded. She was not carrying any mobile phone when she had gone with the accused to Gurgaon. She had told the police that her mobile number (number is mentioned in the file and withheld to protect the identity of the prosecutrix). She still says that she was not carrying any mobile phone when she had gone with the accused. She has voluntarily stated that she had carried some money only. Accused had a mobile phone when they had gone to Gurgaon. She had not received any call on 12.07.2013 but he had received on call from his office on the way on 13.07.2013. It must be about 9.57-9.58 a.m. when they were leaving the flat on 13.07.2013. She had later learn that her father and paternal uncle (Chacha) had Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 52 of 97 ::-
-:: 53 ::-
telephoned the accused on his mobile phone on 13.07.2013 but he had disconnected their calls. Her father had told her that he had telephoned the accused even on 12.07.2013 and the accused had disconnected his calls. She did not hear the mobile phone of the accused ring on 12.07.2013 and 13.07.2013 except once on
13.07.2013 at about 9.57-9.58 a.m. when he had received the call from his office. She had told these facts to the police as well as learned Metropolitan Magistrate. She was confronted with the statement Ex.PW1/A and the statement under section 164 Cr.P.C Ex.PW1/B, where it is not so recorded. She had told all the facts of this case in detail to the police as well as the learned Metropolitan Magistrate. Her father had lodged her missing report on 12.07.2013 and had later taken her to Police Station Anand Parbat on 13.07.2013 where she had given her complaint. Police had made enquiry from her about the case. She has voluntarily stated that even she had made enquiry from the police that if such an incident happens with their sister, what would they do. The name of police officer was Mr.Mukund Rai and he recorded her statement. She had told the police as well as the learned Metropolitan Magistrate that her father had lodged her missing report on 12.07.2013 and had later taken her to Police Station Anand Parbat on 13.07.2013 where she had given her complaint. She was confronted with the statement Ex.PW1/A and the statement under section 164 Cr.P.C Ex.PW1/B, where it is not so recorded. She knew that she was taken to Gurgaon by the accused as she had seen the name of the city i.e. Gurgaon written on the boards. She had made a complaint against the Inspector who had slapped her Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 53 of 97 ::-
-:: 54 ::-
at Old Delhi Railway Station in her statement to the police as well as statement before the learned Metropolitan Magistrate. She had not given any formal complaint in writing to any authority. ASI Kiran had recorded her statement to the said effect. She has denied that she did not give any complaint against the Inspector as no such Inspector had ever slapped her. She was aware that her father had written at Old Delhi Railway Station while taking her that "Mai Babu Lal apni beti ko apne bhai ke saath sahi-salamat le kar jaa raha hoon". She had already told her father about the entire incident that accused had taken her to Gurgaon and raped her. Her father had been made to write the above statement at Old Delhi Railway Station by the police who had then told him to take her to Area Police Station. No police officer from Police Station Anand Parbat had come to Old Delhi Rly Station on 13.07.2013. She has admitted that she had refused to get her internal gynecological examination conducted and had not given her clothes to the doctor. She has denied that she had refused to get her internal gynecological examination conducted and had not given her clothes to the doctor as no offence as alleged by her was ever committed. She has denied that she had run away from her own with some other boy named Mr.Tarun and was that Old Delhi Railway Station and had then called the accused and told him about the same, who further informed her parents that she had run away with a boy name Mr. Tarun, and on their request, the accused had come to Old Delhi Railway Station to bring her back and on the request of her parents that he should bring her to Police Station Anand Parbat, the accused had declined and then she in connivance Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 54 of 97 ::-
-:: 55 ::-
with her parents had falsely implicated the accused in the present case in order to save the other boy name Mr.Tarun. She has denied that accused Manikant is not known as Mr.Tarun and had never taken her on his motorcycle to a flat of his friend at Gurgaon. She has denied that the accused had never forcibly had physical relations with her at Gurgaon on the assurance of marriage and had never promise to marry her nor rape her on a false pretext of marriage. She has further denied that the accused is innocent and has not committed any offence and she was deposing falsely.
98.The Additional Public Prosecutor has requested for permission to re-
examine the witness regarding the alleged physical relations which the accused had forcibly established with her prior to 12.07.2013, regarding which charge has also been framed. The same was allowed.
99.The Additional Public Prosecutor had read out the statement under statement 164 Cr.P.C of the witness (Ex.PW1/B) more specifically portion X to X as well as the statement under section 161 Cr.P.C dated 16.08.2013 (Ex.PW1/D1 more specifically portion X to X and thereafter the witness was examined.). She has admitted that she had told the learned Metropolitan Magistrate all the facts which are mentioned in portion X to X of (Ex.PW1/B) and that the accused had physical relations with her on the assurance of marriage prior to 12.07.2013. She has admitted that she had told to the ASI Kiran all the facts which are mentioned in portion X to X of (Ex.PW1/D1) and that the accused had physical relations with her on the assurance of Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 55 of 97 ::-
-:: 56 ::-
marriage prior to 12.07.2013. She has admitted that she had forgotten to mention the above facts due to lapse of time.
100. After re-examination by Additional Public Prosecutor, the prosecutrix was re-cross examined by counsel for accused.
101. In her re-cross examination, she has deposed that she had told her mother on the night of 13.07.2013 all the facts mentioned in portion X to X of (Ex.PW1/B) as well as portion X to X of (Ex.PW1/D1). She has admitted to be correct that these facts are not mentioned in her complaint (Ex.PW1/A). She had told these facts verbally to the police when she had gone to Police Station Anand Parbat on 13.07.2013. She has denied that no incident as mentioned in portion X to X of (Ex.PW1/B) as well as portion X to X of (Ex.PW1/D1) has ever occurred and these have been fabricated by her subsequently in connivance with her parents. She has admitted that she had not made any complaint to any authority regarding the incident as mentioned in portion X to X of (Ex.PW1/B) as well as portion X to X of (Ex.PW1/D1). She has denied that she was deposing falsely.
102. It can be seen that the prosecutrix has made several variations in her cross examination from her examination in chief. She has mentioned that prior to taking the prosecutrix to Gurgaon, they had roamed in Karol Bagh for an hour. She has deposed that as her brother was sleeping, she has stated that on 12.07.2013, she was alone. Her mother suffers from piles and had gone to Ballabhgarh for Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 56 of 97 ::-
-:: 57 ::-
her treatment. The police had verified about the ownership of the flat where the offence was committed from the neighbours and the IO had recorded their names and addresses. Next day, they had left the flat at about 9.00-9.30 a.m. and there was a lot of vacant land (khali jagah) on the way and they came straightaway to Old Delhi Railway station. They had come on the motorcycle of the accused and she did not remember the registration number of the motorcycle. She has denied the suggestion that accused does not have any motorcycle and does not know whether or not the accused has any motorcycle registered in his name. She did not raise any alarm or shout for help when the accused was taking on motorcycle to Gurgaon and also did not raise any alarm or shout for help when the accused brought her from Gurgaon to Old Delhi Railway Station. She has admitted that there were a lot of people on the road on both the days and she had seen some traffic police and police of Police Station on the road on both the days but had not asked for any help from them. She did not raise any alarm or shout for help when the accused had kept her in the flat on the night of 12.07.2013 and till the morning of 13.07.2013 and did not raise any alarm or shout for help when the accused had touched her and had physical relations with her in the flat. She had tried to leave the flat after the incident but the accused told her that they would go together on the next morning and therefore she does not go out of the flat. She has voluntarily stated that accused had also threatened to kill her brother and himself, if she left the flat. She had told this fact that the accused had also threatened to kill her brother and himself, if she left the flat. She has admitted that as she was in Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 57 of 97 ::-
-:: 58 ::-
love with the accused, she used to meet him at Karol Bagh Metro Station and also used to kiss him. She was aware that her father had written at Old Delhi Railway Station while taking her that "Mai apni beti ko apne bhai ke saath sahi-salamat le kar jaa raha hoon". She had already told her father about the entire incident that accused had taken her to Gurgaon and raped her.
103. Neither the prosecutrix nor the prosecution have been able to explain the contradictions in the different statements of the prosecutrix i.e. complaint (Ex.PW1/A), MLC (Ex.PW1/DF), statement under section 164 Cr.P.C. (Ex.PW1/B), examination in chief, cross examination on behalf of the accused, re-examination by the Additional Public Prosecutor and again cross examination on behalf of the accused as well as the application file by the prosecutrix (Ex.PW1/DA), her affidavit (Ex.PW1/DB) and copy of her Aadhar Card (Ex.PW1/DC). The contradictions and inconsistencies are regarding very material facts i.e. the date of the first alleged incident-
whether it was on 27.02.2014 or 28.02.2014 or in June, 2013; her names, parentage, name of her Bua; her education; plce of her education; date of her coming to Delhi for the first time; the name of the hotel where she stayed; whether she had physical relations with the accused with or without her consent; sequence of events; her money being stolen; her going to Kochi; her return to Jaipur; duration of her stay at Delhi and Kochi; her Bua/mother refusing the match between the accused and the prosecutrix due their being of different religions; her slashing her wrist and treatment; her coming Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 58 of 97 ::-
-:: 59 ::-
to Delhi on 18.06.2014; accused telling about his marriage; going to the spectacles shop for repair of the spectacles of the wife of the accused; going to house of accused; presence of his wife; bringing or eating food; the alleged incident occurring; calling of police; etc.
104. The prosecutrix has not furnished any justified or reasonable explanation regarding the numerous contradictions and inconsistencies in her different statements. Although she has stated that it was at the instance of an Inspector but when she has not made any complaint to any authority regarding the same, her excuses are not believable and her evidence is unreliable. Towards the end of her evidence, she has categorically deposed that the accused has not raped her on 18.06.2014 and at any point of time despite initially deposing that he had raped her on 18.06.2014.
105. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable.
The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.
106. The veracity of the testimony of the prosecutrix, as mentioned in Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 59 of 97 ::-
-:: 60 ::-
her examination in chief, is shattered in her cross examination, which makes it highly improbable that such incidents, as alleged by her, ever occurred. Even in her re-examination by the Additional Public Prosecutor, nothing material for the prosecution has come forth. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that the prosecution case against the accused is false.
107. The prosecutrix has failed to depose any thing in her examination in chief regarding her rape by the accused prior to 12.07.2013. After she was cross examined on behalf the accused, the Additional Public Prosecutor has re-examined her and then she has deposed regarding her rape by the accused prior to 12.07.2013 and that she had mentioned the same in her statement under section 164 Cr.P.C. (Ex.PW1/B) and statement under section 161 of the Cr.P.C. dated 16.08.2013 (Ex.PW1/D1). These facts are not even mentioned in the complaint (Ex.PW1/A). Although her mother, PW8 has deposed about the rape of the prosecutrix by the accused in 2010 and Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 60 of 97 ::-
-:: 61 ::-
June/July, 2012 but the same is neither specific nor the prosecutrix has mentioned anything about the same. As no explanation for such a serious contradiction, which cannot be ignored, is not coming from the prosecution, therefore, it cannot be said that the accused has raped the prosecutrix on three-four occasions prior to 12.07.2013 and this allegation remains unproved.
108. The testimony of the prosecutrix is full of contradictions and it is not corroborated by other evidence on record. In such a situation, the accused becomes entitled to be acquitted. Reliance can be placed upon the judgment reported as Om Prakash alias Kalia v. State, 2011 (1) JCC 391.
109. Therefore, it cannot be said that the accused had raped her. On careful perusal of the evidence of the prosecutrix it transpires that there are several overwhelming contradictions and inconsistencies are revealed in her different statements which give a shattering blow to the case.
110. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 61 of 97 ::-
-:: 62 ::-
The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that she has given contradictory and different versions.
111. In the light of the aforesaid nature of deposition of the prosecutrix (PW1) who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the 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 witness."
112. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
113. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 62 of 97 ::-
-:: 63 ::-
not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
114. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the 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.
115. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
116. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
117. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material and there being no forensic or medical evidence, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 63 of 97 ::-
-:: 64 ::-
prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
118. If one integral part of the story put forth by a witness-
prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
Evidence of prosecutrix and her parents
119. Now coming to the evidence of the prosecutrix and of her parents, it may be observed that there are several contradictions and inconsistencies which remain unexplained. The same are tabulated herein under :
Sessions Case Number : 28 of 2014. Unique Case ID Number : 02401R0042872014. FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code. State versus Manikant Singh @ Tarun -:: Page 64 of 97 ::-
-:: 65 ::-
PW1-Prosecutrix PW8-Mother of PW9-Father of
prosecutrix prosecutrix
Incident of rape on Incident in July, 2013. Incident of rape on 12.07.2013 She came on same 12.07.2013. Wife came night. on the same day from Ballabhgarh.
........... ........... Father caught
prosecutrix talking on
phone to acused and
asked him to mend his
ways. He came to know
that accused visits
school of prosecutrix to
meet her and got the
premises vacated from
accused in 2012.
My mother suffers from In October, 2013, she About 2 months prior to piles and had gone to was taking treatment in 12.07.2013, his wife Ballabgarh for her native village at had gone to Ballabgarh treatment. Ballabgarh for three for medical treatment.
months. It was March, 2013 and she stayed for 3-4 months ........... In 2010, when mother ...........
was admitted in Tibia
College Hospital,
accused raped and
threatened the
prosecutrix.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 65 of 97 ::-
-:: 66 ::-
........... Parents and brothers of ...........
the mother of the prosecutrix reside in Trans Yamuna area. In June/July, 2012, she told her brother Madan Sagar that while she was in Ballabgarh, accused had raped her daughter and as they did nothing, she severed her relations with them.
........... Her brother Madan ...........
Sagar had been told by the prosecutrix about her rape by accused.
Accused demanded ........... ...........
money from the prosecutrix Accused demanded ........... ........... Rs.2 lacs from the mother of the prosecutrix Father had kept copy of ........... ........... electoral card of accused at the time of inducting him as tenant. Police never visited her ........... ........... house to verify antecedents of accused and his brother Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 66 of 97 ::-
-:: 67 ::-
Prosecutrix told her Prosecutrix had told
father that the accused her father that she is
had taken her to a flat alright and that she had
in Gurgaon and raped gone with the accused
her. to Gurgaon where she
stayed over night. She
also told that accused
had established
physical relations with
her at night.
........... ........... Father made complaint
to Old Delhi Railway
Station Police Station.
Father had given ........... Father had given
written complaint in PS verbal complaint in PS
Anand Parbat on same Anand Parbat
day i.e. 13.07.2013 regarding the
prosecutrix missing
since 12.07.2013. His
complaint on
13.07.2013 was not
taken in PS Anand
Parbat.
Father had lodged ........... Father had given a
missing report on written complaint in PS
12.07.2013. Anand Parbat on
12/13.07.2013.
Prosecutrix not ........... Prosecutrix had taken
carrying mobile phone the mobile phone while
when she had gone leaving the house. She
with accused to was still carrying her
Gurgaon. mobile phone when he
met her at Old Delhi
Railway Station Police
Station.
........... ........... From Old Delhi
Railway Station Police
Station, he had gone
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 67 of 97 ::-
-:: 68 ::-
with prosecutrix to PS Anand Parbat where he was told to come next day as there was no lady police officer..
Father had taken her ........... ........... on 13.07.2013 to PS Anand Parbat and she lodged complaint.
Father wrote hat "Mai ........... ........... apni beti ko apne ke saath sahi-salamat le kar jaa raha hoon"
120. There are numerous contradictions and inconsstencies in the evidence of the prosecutrix and her parents due to which a shadow of doubt is cast on the prosecution version making it unreliable and unbelievable. No explanation regarding the contradictions and inconsistencies is coming forth from the prosecution.
121. If the parents and brothers of PW8, the mother of the prosecutrix, are residing in Trans Yamuna area, then the deposition that she had gone to her native village Ballabhgarh is wrong as she has not mentioned who is residing there.
122. PW1 has deposed that she had told her father that the accused had taken her to Gurgaon to a flat where he rape her but PW9 has deposed that she told him that she was alright and accused had physical relatins with her and then her father had written that "Mai apni beti ko apne bhai ke saath sahi-salamat le kar jaa raha hoon".
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 68 of 97 ::-
-:: 69 ::-
123. PW1 as deposed that the accused demanded Rs.2 lacs from her, then her mother but her parents have not made any such deposition.
124. PW1 has not deposed about her rape by the accused in 2010 but PW8 has so deposed and PW9 has deposed that he had caught the prosecutrix talking on phone with accused and came to know that the accused was visiting her in school. PW8 has not told PW9 that the accused had raped their daughter in 2010.
125. PW1 has deposed that she was not carrying her mobile phone but PW8 has deposed that she was carrying her mobile phone and she even had it when he went to Old Delhi Railway Station Police Station and brought her back. Here, the evidenc of PW12 also is relevant as she has deposed that the prosecutrix has stated that she was having mobile number (number is withheld to protect the identity of the prosecutrix) with her on the date of incident.
126. The prosecutrix, PW1, has failed to depose any thing in her examination in chief regarding her rape by the accused prior to 12.07.2013. After she was cross examined on behalf the accused, the Additional Public Prosecutor has re-examined her and then she has deposed regarding her rape by the accused prior to 12.07.2013 and that she had mentioned the same in her statement under section 164 Cr.P.C. (Ex.PW1/B) and statement under section 161 of the Cr.P.C. dated 16.08.2013 (Ex.PW1/D1). These facts are not even mentioned Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 69 of 97 ::-
-:: 70 ::-
in the complaint (Ex.PW1/A). Although her mother, PW8 has deposed about the rape of the prosecutrix by the accused in 2010 and June/July, 2012 but the same is neither specific nor the prosecutrix has mentioned anything about the same. As no explanation for such a serious contradiction, which cannot be ignored, is not coming from the prosecution, therefore, it cannot be said that the accused has raped the prosecutrix on three-four occasions prior to 12.07.2013 and this allegation remains unproved.
127. No complaint or missing report by PW9, the father of the prosecutrix, has been produced and proved although he has so deposed. PW8 has also deposed that he had caught the prosecutrix and the accused talking on phone and reprimanded him and when the prosecutrix was missing on 12.07.2013, he had called on her mobile phone as well as the mobile phone of the accused which indicates that he had suspicion that she had gone with him. He has also deposed that he has not made any complaint to the parents of the accused although they have met with him and the same indicates that no incident of the involvement of the accused with his daughter has ever taken place. No justified or reasonable explanation is coming forth from PW9 regarding the delay in lodging of te complaint with the police.
128. The prosecutrix has deposed that "Gradually he developed friendship with me, which later turned into love from my side. He started kissing me. We used to meet without the knowledge of my Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 70 of 97 ::-
-:: 71 ::-
parents at Karol Bagh Metro Station, we also used to talk on mobile phone..........He told me that he wanted to marry me and due to this reason, I went with the accused."
129. Regarding the role of the prosecutrix in the investigation, it may be mentioned that the prosecutrix has neither disclosed the address of the flat at Gurgaon where she was taken taken by the accused, confined and raped at night nor she has deposed that she could identify it by location, but a pointing out memo (Ex.PW1D) and site plan (Ex.PW1/C) have been prepared at her instance. The cross examination of PW8 indicates that her brother Mr.Madan Sagar was aware about the rape of the prosecutrix by the accused but he did not do anything.
130. Here, it would be important to mention that the CDRs and location chart produced by PW11 (Ex.PW11/A to Ex.PW11/E) that the prosecutrix was in Trans-Yamuna and not at Gurgaon on the date and time of the alleged offence. It is also clear from the evidence of PW9 that the mobile phone of the prosecutrix was with her when she went on 12.07.2013 and when her father met her at Old Delhi Railway Station Police Stattion on 13.07.2013 and brought her back.
These facts indicate that the prosecutrix never went to Gurgaon at any point of time nor any offence was ever committed against her.
131. The stand taken by the prosecutrix is demolished by PW10, SI Bhimsen Kaushik, who was posted at Old Delhi Railway Station Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 71 of 97 ::-
-:: 72 ::-
Police Station, as he has given evidence in support of the accused by deposing that "I had specifically enquired from the prosecutrix (name withheld) and her father if anything was wrong and if they wanted to make any complaint but both of them had said that everything was in order and they did not have to make any complaint against any one. The girl seemed to be in a normal condition. Thereafter, the accused also went away....In my opinion accused has been falsely implicated." He has not been cross examined by the prosecution when he did not depose against the accused.
132. Therefore, it is clear from the above elaborated contradictions and inconsistencies that the evidence of the prosecutrix and her parents is unreliable and unbelievable.
Consent of Prosecutrix
133. Another argument has been raised on behalf of the prosecutrix, in the alternative, that she was a consenting party which has been refuted by the prosecution.
134. PW1, the prosecutrix, has deposed that "Gradually he developed friendship with me, which later turned into love from my side. He started kissing me. We used to meet without the knowledge of my parents at Karol Bagh Metro Station, we also used to talk on mobile phone..........He told me that he wanted to marry me and due to this reason, I went with the accused."
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 72 of 97 ::-
-:: 73 ::-
135. PW9, Mr.A, father of the prosecutrix has deposed that accused Mr. Manikant Singh @ Tarun used to talk his daughter on phone and he had caught his daughter while talking on phone and he had taken the phone from her and it was confirmed that she was talking to accused Manikant. She told him that the accused had telephoned her. He tried to make the accused understand that he should not call his daughter but he did not mend his ways and continued to talk his daughter despite his repeated requests to him. On the night of 12.07.2013, the prosecutrix did not come back home and he made efforts to search her and had doubts that she had gone some where with accused Manikant. He tried the mobile phone number of the prosecutrix but it was found switched off and thereafter, he called on the mobile phone of accused Manikant but he did not pick up his call. On the morning of 13.07.2013, the accused responded to his call and told him that the prosecutrix was with him.
136. Here, it may be mentioned that it is important to understand what consent implies and what is consent on misconception of facts.
137. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him. There has to be Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 73 of 97 ::-
-:: 74 ::-
unequivocal consent but the consent of the prosecutrix was taken by misrepresentation amounting to breach of trust.
138. On the other hand, it had argued by the counsel for the accused that the prosecutrix had physical relationship with the accused with her free consent and will despite knowing that he will not marry her.
139. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
140. Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is 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 mind."
141. 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 females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 74 of 97 ::-
-:: 75 ::-
142. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
"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 an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her."
143. Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
144. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 75 of 97 ::-
-:: 76 ::-
said that it is a misconception of fact or that her consent has been obtained by fraud. It is clear that the prosecutrix accepted whatever physical relationship was there with her free consent.
145. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry cannot be said to be under a misconception of fact as she was a major at the time of the alleged incident and intelligent enough to understand the consequences of establishing physical relationship with the accused. Mere promise to marry on an uncertain date does not indicate that the accused has obtained her consent for the physical relationship by fraud or misrepresentation. Consent given by the prosecutrix to have physical relationship with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under misconception of fact.
146. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix 'against her consent'. How is 'consent' defined? Section 90 of the IPC defines consent known to be given under 'fear or misconception' which reads as under:- "90. Consent known to be given under fear or misconception -
A consent is not such consent as it 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 Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 76 of 97 ::-
-:: 77 ::-
doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
147. Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. It cannot be said that the alleged consent said to have obtained by the accused was not voluntary consent and the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is not borne out from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix.
148. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.
149. Section 114-A of the Indian Evidence 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 herein 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, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 77 of 97 ::-
-:: 78 ::-
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, and thus, such a physical relationship would tantamount to committing rape.
150. The judgments reported as Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, observe that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act (s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
151. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 78 of 97 ::-
-:: 79 ::-
of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis- representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the Court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
152. However, it is clear from the evidence of the prosecutrxi that she was in love with him which was one sided only. It may be repeated here that PW1, the prosecutrix, has deposed that "Gradually he developed friendship with me, which later turned into love from my side. He started kissing me. We used to meet without the knowledge of my parents at Karol Bagh Metro Station, we also used to talk on mobile phone..........He told me that he wanted to marry me and due to this reason, I went with the accused."
153. Even PW9, her father was aware about her involvement with the Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 79 of 97 ::-
-:: 80 ::-
accused and had doubt that she had gone some where with accused Manikant. He tried the mobile phone number of the prosecutrix but it was found switched off and thereafter, he called on the mobile phone of accused Manikant but he did not pick up his call. On the morning of 13.07.2013, the accused responded to his call and told him that the prosecutrix was with him. All these facts indicate that the prosecutrix had gone with the accused with her consent and whatever physical relations may have been established between them were also with her free consent and without any misrepresentation or influence as she herself loved him and went ahead with the physical relations without any date of marriage being fixed, without the knowledge of both the families.
Final appreciation of the evidence of the prosecutrix
154. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material witnesses, prosecutrix making deliberate improvements on material points; with consent on her part for physical relations; there being no injury on her person; prosecutrix refusing her gynaecological examination;
prosecutrix neither shouting for help during commuting nor resisting the physical relations; prosecutrix staying at the flat at night without trying to escape; etc., then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 80 of 97 ::-
-:: 81 ::-
and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime.
155. If one integral part of the story put forth by a witness-
prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence.
156. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
157. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376 and 420 of the IPC as the prosecutrix has made inconsistent statements due to which her Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 81 of 97 ::-
-:: 82 ::-
testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced into having physical relations by the accused on a false promise of marriage.
158. It is clear that the prosecutrix had willfully remained with the accused and had physical relationship, if any, with him being a consenting party and that the accused does not appear to have committed any offence.
159. The prosecutrix is an adult. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused (an already married man) and having no grievance about her conduct and behaviour at any time and having established physical relationship number of times with her consent and without any resistance. She never informed her family about her relationship with the accused or his offer to marry her. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
160. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped as her consent is not free.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 82 of 97 ::-
-:: 83 ::-
161. The hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
i. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
ii. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
iii. The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. iv. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v. In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
vi. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron. vii. A witness, though wholly truthful, is liable to be overawed Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 83 of 97 ::-
-:: 84 ::-
by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
162. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations of rape on a false promise of marriage against the accused.
MENS REA / MOTIVE
163. Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 84 of 97 ::-
-:: 85 ::-
and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
164. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
165. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 85 of 97 ::-
-:: 86 ::-
forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
166. In the present case, a story has been projected that the accused has raped the prosecutrix on a false promise of marriage on 12.07.2013 and this version appears to be untrue as there is no reason why he would do so. No reason is shown as to why the accused would jeopardize his future. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution.
167. There does not appear to be any criminal intention and mens rea on the part of the accused.
DEFENCE OF THE ACCUSED
168. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He is not known as Tarun. His name is Manikant Singh. There was a dispute regarding rent between the father of the prosecutrix and the accused while he was living as a tenant in his house as he wanted to increase the rent. The prosecutrix had gone away with some one else. Her father had telephoned him on 13.07.2013 and requested him to reach railway station as his daughter had come there. When he reached the railway station, he saw that the father of the prosecutrix was being scolded by the police as he could not control his daughter. No allegations against him were made by the prosecutrix at the Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 86 of 97 ::-
-:: 87 ::-
railway station before the police officials. Thereafter, on 15.07.2013, he was implicated in the present false case in Police Station Anand Parbat.
169. The accused has preferred to lead defence evidence and DW1, Mr.Amit Kumar, has produced the office record of the accused to show that he was office on 12.07.2013 and 13.07.2013 at the time of commission of the alleged offence (Ex.DW1/B to Ex.DW1/C). These documents indicate that the presence of the accused at 06:30 p.m. on 12.07.2013 at the house of the prosecutrix and on 13.07.13 at about 08:00 a.m. in his office at Noida and then at Old Delhi Railway Station at 03:30 p.m. are not possible as he could not be present at two places at the same time since he was in his office. Also, from the house of the prosecutrix to Karol Bagh and then to Gurgaon does not take 6 hours on motorcycle which also makes the prosecution story very doubtful.
170. It has already been discussed above that the evidence of prosecutrix is not reliable and is unworthy of credence. In her evidence, the prosecutrix has categorically deposed that "Gradually he developed friendship with me, which later turned into love from my side. He started kissing me. We used to meet without the knowledge of my parents at Karol Bagh Metro Station, we also used to talk on mobile phone..........He told me that he wanted to marry me and due to this reason, I went with the accused."
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 87 of 97 ::-
-:: 88 ::-
171. The defence of the accused appears to be plausible considering the unreliable evidence of the prosecutrix which suffers from overwhelming contradictions and glaring inconsistencies. The defence of the accused has not been put to the prosecutrix in her cross examination although there is a suggestion that the prosecutrix had gone with another boy whose name was Tarun.
172. However, the case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.
173. Therefore, as the prosecution version is unreliable and unbelievable that the accused had raped the prosecutrix on a false pretext of marriage, the defence of the accused appears to be plausible that he has not committed any offence.
INVESTIGATION
174. It is the actual crime which is important than the investigation.
Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important. Similarly, when the evidence of the prosecutrix and her parents is unreliable, then the investigation looses its importance.
175. The prosecution has failed to prove about the allegations made by the prosecutrix that the accused had taken her from her house to Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 88 of 97 ::-
-:: 89 ::-
Gurgaon to a flat of his friend via Karol Bagh where he had got his motorcycle serviced. The prosecution has failed to produce any evidence in this regard. The prosecution also failed to produce and examine the owner of the flat, the neighbours of the flat, the motorcycle mechanic, etc. All the public witnesses who may have been available while the prosecutrix was taken to Gurgaon on 12.07.2013 and from there to Old Delhi Railway Station on 13.07.2013 and then to Old Delhi Railway Station Police Station have neither been identified by the prosecution nor cited nor produced nor examined.
176. Also, the prosecutrix and her father, PWs 1 and 9 respectively, have deposed that the father had made complaint / missing report to the Old Delhi Railway Station Police Station and Anand Parbat Police Station but the same have neither been produced nor proved. Also the Inspector who had allegedly slapped the prosecutrix has also neither been produced nor examined. The writing of PW9 that "Mai apni beti ko apne ke saath sahi-salamat le kar jaa raha hoon" has also neither been produced nor proved. The prosecution has also alleged that the Chacha of the prosecutrix had talked to the accused but even he has neither been produced nor examined. Mr.Madan Sagar, brother of the mother of the prosecutrix to whom the prosecutrix had told that she had been raped by the accused has neither been produced nor examined. Also the other tenants in the house of the prosecutrix have neither been cited nor produced nor examined to aceratain from them wether or not accused Manikant Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 89 of 97 ::-
-:: 90 ::-
Singh is also known as Tarun.
177. In fact, PW10, SI Bhimsen Kaushik, who was posted at Old Delhi Railway Station Police Station has given evidence in support of the accused by deposing that "I had specifically enquired from the prosecutrix (name withheld) and her father if anything was wrong and if they wanted to make any complaint but both of them had said that everything was in order and they did not have to make any complaint against any one. The girl seemed to be in a normal condition. Thereafter, the accused also went away....In my opinion accused has been falsely implicated." He has not been cross examined by the prosecution when he did not depose against the accused.
178. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
179. The investigation conducted in the present case has been deposed by PWs 2, 3, 4, 5, 6, 10 and 12. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 90 of 97 ::-
-:: 91 ::-
180. The investigation conducted including the documents prepared in the present case has been substantially proved by the police wit- nesses including the IO. They have deposed on the lines of the prose- cution case. The most of the investigation appears to have been con- ducted fairly and properly.
181. However, PW12, the Investigation Officer has not cited nor pro-
duced the owner of the flat where the incident took place, the neigh- bours of the flat, the public persons who the prosecutrix may have come across while going to Gurgaon and on return, the public per- sons at the Old Delhi Railway Station, the tenants in the house of the prosecutrix, nor has taken written informaon regarding the incident at Old Delhi Railway Station,etc due to which her deposition regarding the visit at Gurgaon and investigation becomes doubtful.
182. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable.
FINAL CONCLUSION
183. The prosecution has failed to furnish any explanation in respect of the numerous contradictions in the statements of the prosecutrix and her parents. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 91 of 97 ::-
-:: 92 ::-
highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that there appears to be an element of consent of the prosecutrix in having physical relations with the accused as she has subsequently deposed that she had physical relations with the accused with her consent and she was in love with him. It is also clear from the evidence of the prosecutrix that the accused had never said that he liked or loved her. It appears that the present rape case was lodged by the prosecutrix as she was in love with the accused and wanted to pressurize him to marry her.
184. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. 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 the moral quality of the act, but after having freely exercised a choice between resistance and assent.
185. The prosecutrix is an adult who is responsible for her actions.
She is sufficiently intelligent to understand the significance and Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 92 of 97 ::-
-:: 93 ::-
moral quality of the act she was consenting to, having physical relations with the accused knowing that he will not marry her. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
186. Since the evidence of the prosecutrix, PW1, is neither reliable nor believable as there are overwhelming contradictions in her different statements as well as in totaliy with the other evidence on record, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
187. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
ii. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
Sessions Case Number : 28 of 2014. Unique Case ID Number : 02401R0042872014. FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code. State versus Manikant Singh @ Tarun -:: Page 93 of 97 ::-
-:: 94 ::-
iii. The circumstances should be of conclusive nature and tendency;
iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
188. Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix on a false promise of marriage. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
189. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.
190. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 94 of 97 ::-
-:: 95 ::-
191. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.
192. It is a case of heinous crime of rape which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place. Here in the present case, is a prosecutrix who is not truthful. She has given different statements and made numerous contradictions and inconsistencies which remain unexplained.
193. The prosecution has miserably failed to prove that on three-four occasions prior to the 12.07.2013 at unknown time at "A" address which is the house of the prosecutrix and thereafter on 12.07.2013 at about 12.30 a.m. at H.No.V-34/10, DLF, Phase III, in the flat of his Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 95 of 97 ::-
-:: 96 ::-
friend, he committed rape upon the prosecutrix under the false promise to marry her.
194. All the above facts indicate that there is no veracity in the prosecution case in respect of the offence of rape of the prosecutrix by accused Mr.Manikant Singh @ Tarun and the accused merits to be acquitted for the offence under section 376 read with section 420 of the IPC.
195. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Manikant Singh @ Tarun.
196. Accordingly, Mr.Manikant Singh @ Tarun, the accused, is hereby acquitted of the charges for the offence punishable under section 376 read with section 420 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
197. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 96 of 97 ::-
-:: 97 ::-
198. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
199. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
200. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 18th day of December, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 28 of 2014.
Unique Case ID Number : 02401R0042872014.
FIR No.122/2013, Police Station Anand Parbat Under section 376 of the Indian Penal Code.
State versus Manikant Singh @ Tarun -:: Page 97 of 97 ::-