Delhi District Court
State vs Brahm Dev Kamat And Another. -:: Page 1 Of ... on 25 March, 2013
-:: 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 : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
State
versus
1. Mr.Brahm Dev Kamat
Son of Mr.Sobha Kant Kamat,
Resident of H.No. 272, Pocket 3, Paschim Puri,
Punjabi Bagh, Delhi.
2. Mr.Om Prakash
Son of Mr.Sobha Kant Kamat,
Resident of H.No.272, Pocket 3, Paschim Puri,
Punjabi Bagh, Delhi.
First Information Report Number : 100/11
Police Station Punjabi Bagh
Under sections 376, 506, 34 of the Indian Penal Code.
Date of filing of the charge sheet before : 10.06.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 12.07.2011.
In the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 25.03.2013.
Date of judgment : 25.03.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the
State is on leave.
Mr.Rakesh Mehta, Substitute Additional Public Prosecutor
for the State.
Both accused on bail with counsel, Mr.Sundeshwar Lal.
Ms.Sadhna Singh, counsel for the Delhi Commission for
Women.
***********************************************************
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh,
Under sections 376, 506, 34 of the Indian Penal Code.
State versus Brahm Dev Kamat and another. -:: Page 1 of 50 ::-
-:: 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.
1. Kidnapping and rape are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. 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. (Reliance on the material on the internet). Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a young woman, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult.
2. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 2 of 50 ::-
-:: 3 ::-
and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
3. Mr. Brahm Dev Kamat and Mr. Om Prakash, both the accused persons, have been charge sheeted by Police Station Punjabi Bagh, Delhi for the offence under sections 376/506/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 10.01.2011 at H.No. 272, Pocket-C, Paschim Puri, Delhi within the jurisdiction of Police Station Punjabi Bagh they committed gang rape with prosecutrix (name withheld to protect her identity) without her free consent and thereafter accused Brahm Dev Kamat repeatedly committed rape with the prosecutrix and on the aforesaid time, place they both had threatened the prosecutrix with threat to kill her and her parents.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 3 of 50 ::-
-:: 4 ::-
filed before the Court of the learned Metropolitan Magistrate on 10.06.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 12.07.2011 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide circular number 20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
5. After hearing arguments, charge for offence under sections 376 (2) (g), 506, 34 of the IPC was framed against the accused persons namely Mr. Brahm Dev Kamat and Mr. Om Prakash by the learned predecessor on 28.07.2011.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
6. The allegations against both the accused persons are that on 10.01.2011 at H.No. 272, Pocket-C, Paschim Puri, Delhi within the jurisdiction of Police Station Punjabi Bagh they committed gang rape with prosecutrix (name withheld to protect her identity) without her free consent and thereafter accused Brahm Dev Kamat repeatedly committed rape with the prosecutrix and on the aforesaid time, place they both had threatened the prosecutrix with threat to kill her and her parents.
7. The prosecution story unfolds with the filing of the written Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 4 of 50 ::-
-:: 5 ::-
complaint (Ex.PW6/A) by the prosecutrix (PW6) on 11.05.2011 on the basis of which the rukka (Ex.PW4/B) was written and endorsement vide DD No.47A dated 11.05.2011 was made on basis of which the FIR (Ex.PW4/A) was lodged by SI Yogender Singh (PW4) and certificate under section 65-B of the Evidence Act (Ex.PW4/C) was issued. The investigation was marked to W/ASI Sushila (PW8 and 10). The prosecutrix was medically examined vide MLC (Ex.PW5/A) by Dr.M.Das (PW5). Twelve parcels and one sample seal pertaining to the prosecutrix were seized by the Investigation Officer vide seizure memo (Ex.PW8/B).
On the pointing out by the prosecutrix, accused Brahm Dev Kamat was arrested vide arrest memo (Ex.PW1/A), his personal search was taken vide personal search memo (Ex.PW1/C) and he made his disclosure statement (Ex.PW1/E). He pointed out the place of occurance vide pointing out memo (Ex.PW1/G). Accused Om Prakash was arrested vide arrest memo (Ex.PW1/B), his personal search was taken vide personal search memo (Ex.PW1/D) and he made his disclosure statement (Ex.PW1/F). He pointed out the place of occurance vide pointing out memo (Ex.PW1/H). Accused Brahm Dev Kamat and co-accused Om Prakash were medically examined (Ex.PW5/C and Ex.PW4/B respectively). One parcel and one sample seal pertaining to accused Brahm Dev Kamat were seized by the Investigation Officer vide seizure memo (Ex.PW7/A). The statement of the prosecutrix under section 164 of the Cr.P.C. (Ex.PW6/B) was recorded by Mr.Vishal Pahuja, learned Metropolitan Magistrate (PW9) who recorded the proceedings (Ex.PW9/A) on the application of the IO (Ex.PW9/B) and copy was given to the IO on her application (Ex.PW9/C). The exhibits were deposited by the IO on 12.05.2011 with Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 5 of 50 ::-
-:: 6 ::-
the Malkhana Moharrar HC Narinder (PW2) vide entry number 3584 in the register number 19 (Ex.PW2/A) and on 26.05.2011, they were sent through Ct. Chand Prakash (PW3) vide RC number 73/21/11 (Ex.PW2/B) to the FSL where they were examined by Dr.Dhruw Sharma (PW11) vide the FSL reports (Ex.PW11/A and Ex.PW11/B).
PROSECUTION EVIDENCE
8. In order to prove its case, the prosecution has examined as many as 11 witnesses i.e. Ct. Manoj, who is a witness of investigation is PW1; HC Narinder Kumar, who is the MHC(M) is PW2; Ct. Chand Prakash who had taken the sealed parcels to the FSL is PW3; SI Yogender who is the duty officer who had recorded the FIR of the case is PW4; Dr. M. Das, who had medically examined the prosecutrix and had also proved the MLCs of both the accused is PW5; the prosecutrix, who is the complainant of the case, is PW6; Ct. Virender Singh, who is a witness of investigation is PW7; ASI Sushila, who is the Investigation Officer is PW8 and has also been examined as PW10 (inadvertently); Mr. Vishal Pahuja, learned Metropolitan Magistrate, Tis Hazari Courts, West District who recorded the statement of prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) is PW9; Dr. Dhruw Sharma, who had proved the FSL reports, is PW11.
9. On 17.08.2012, the counsel for the accused had made a statement on their behalf that the accused do not dispute the MLC of the prosecutrix and the same may be read in evidence against them.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 6 of 50 ::-
-:: 7 ::-
10. The accused have preferred not to cross examine PWs 2, 3, 4, 5, 9 and 11 and therefore their evidence can be presumed to have been admitted as correct by the accused persons since it remains uncontroverted and unrebutted.
STATEMENTS OF BOTH THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
11. In their respective statements under section 313 of the Cr.P.C., recorded on 05.02.2013, the accused Brahm Dev Kamat and co-accused Om Prakash have controverted and rebutted the entire evidence against them submitting that they are innocent and they have been falsely implicated in this case. Mr.Brahm Dev Kamat was running a placement agency for supply of maid and servant. Deen Dayal Kamat was working under the accused Brahm Dev Kamat. The co-accused Om Prakash had come to Delhi in the month of March 2011 for the medical treatment of his wife and was staying with his brother Brahm Dev Kamat. The accused Brahm Dev Kamat and co-accused Om Prakash have been implicated in the present case by using a planted witness i.e. the prosecutrix. The accused Brahm Dev Kamat and co-accused Om Prakash have preferred to lead evidence in their defence.
DEFENCE EVIDENCE
12. In their defence, the accused persons have examined Ct.Manish Kumar.
ARGUMENTS Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 7 of 50 ::-
-:: 8 ::-
13. 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.
14. The Additional Public Prosecutor for the State has requested for convicting the accused Brahm Dev Kamat and co-accused Om Prakash for having committed the offence under sections 376 (2) (g) /506/34 of the IPC and 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.
15. The counsel for the accused, on the other hand, has requested for their acquittal submitting that there is nothing incriminating against the accused persons on the record.
TESTIMONIES OF THE PROSECUTION WITNESSES MATERIAL WITNESS
16. PW6, the prosecutrix, has deposed on oath that she was permanently resident of Village Chandawal, PO Hirsi, Distt. Jamuha, Jharkhand and had come to Delhi about 4-5 years ago with her one of acquaintance of her village namely Mona. She started working as maid servant in the house of Ms. Renu Arora in Paschim Vihar for about four years and Mona was working in a house in Punjabi Bagh and accused Brahm Dev Kamat used to work as driver in the house adjoining to house where Mona was working. Mona introduced her to accused Brahm Dev Kamat who had advised her and Mona to start a new Placement Agency Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 8 of 50 ::-
-:: 9 ::-
which they agreed. On the advice of Mona, on 10.01.2011, the prosecutrix accompanied him to see his office at House No. 272, 2nd floor, Pocket-III, Paschim Puri, Delhi and there the accused told her to sit in a room and he was going to prepare tea for the prosecutrix. After drinking that tea, the prosecutrix feeling giddiness and had slept in that room. Thereafter when she got up, she saw that accused Brahm Dev Kamat was naked and was lying beside her and her salwar was also torn, when she regained her consciousness. Thereafter, accused Brahm Dev Kamat had tried to remove her clothes and had raped her and in the meanwhile the accused Om Prakash came there and beat the prosecutrix with a danda (stick) and also took her photographs in the mobile phone. Both the accused persons threatened her if she did not work in the office of accused Brahm Dev Kamat, he would get her naked photographs published in the newspaper and would also tell her parents and he also threatened to kill her. Accused persons had also forced the prosecutrix to bring more girls from Jharkhand to work as maid servants in their agency. Accused Brahm Dev Kamat has been raping her for about one year after this incident and had threatened to kill her if she disclosed about this incident to anybody and also kill her parents. She also doubted that accused persons are also indulging in selling girls after taking them to Haryana. She refused to go for work in Kothi in Gurgaon and thereafter the prosecutrix went to the house of her maternal uncle (Mama) namely Rajender Rai at Nihal Vihar and had told the whole incident to him and thereafter he took her to PS Punjabi Bagh and lodged complaint (Ex.PW6/A) before SHO, PS Punjabi Bagh. Police officials took her to Sanjay Gandhi Memorial Hospital and her statement under Section 164 Cr.P.C. had been recorded by the Magistrate. Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 9 of 50 ::-
-:: 10 ::-
17. In her cross examination by the counsel for accused, she has deposed that her parents, her brother and sisters lived at village and she was living at Delhi with Mr. Rajender Rai, her Mama( maternal uncle) who he is not her real mama. She knew Mr. Deen Dayal Kamat since he had started coming to the Court and knew accused Brahm Dev Kamat since one year prior to the lodging of the FIR. She had come to Delhi for the first time about 4-5 years ago and had worked initially in A-1/132, Paschim Vihar in the house of Ms. Renu Arora as a domestic helper and had worked there for about 4 years. She was introduced to accused Brahm Dev Kamat by her sister Mona about two years ago and she did not know any lady by the name of Vivyani. She was not aware about the four complaints filed against her, Deen Dayal, Raju @ Sanjay and Rajender Rai in PS Madi Pur vide DD No. 38B dated 23.04.2011, DD No.53B dated 03.04.2011, complaint dated 07.05.2011 and complaint dated 08.07.2011. The complaints have been filed by Vivyani and accused Brahm Dev Kamat. On 10th December, the accused persons had raped her two years ago and she had lodged the FIR after 1-2 months of the incident committed by Brahm Dev Kamat and had remained at his house for around one year. There were nobody at the house except the accused Brahm Dev Kamat and his brother Om Parkash on the date of occurrence. The accused had committed rape with her when she went at the house of accused Brahm Dev Kamat and had torn her clothes, but she did not handed over the same to the police. The prosecutrix did not receive any injuries in the incident. Accused Om Parkash was taking the photographs of the incident with the black colour mobile phone which he was holding in his right hand and he Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 10 of 50 ::-
-:: 11 ::-
had a danda in his left hand but she did not tell police that accused Om Parkash had taken the photographs with a mobile phone. The prosecutrix had received some injuries due to the beating with the danda but she had not told the police regarding her receiving injuries due to the beating with the danda. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that she had told her sister Mona about the incident after one year of its occurrence. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that accused Om Parkash was in the room when accused Brahm Dev Kamat had committed rape upon her. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that she had lived in the house of accused Brahm Dev Kamat for about one year after the incident of rape. Accused Brahm Dev Kamat used to keep her locked at all time. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that he used to keep her locked. After leaving the house of accused Brahm Dev Kamat, she had gone to the house of Jitni at Raghuvir Nagar as she hails from her village and thereafter she had started living in Nihal Vihar at the house of Mr. Rajender Rai. She had gone to the PS along with Mr. Rajender Rai for making the complaint. She did not know any Deen Dayal Kamat. She also did not know whether Vivyani had a lodged a case of rape against Deen Dayal Kamat. She had gone to the police to a doctor for medical examination and made the complaint and she had told the doctor about the incident.
POLICE WITNESSES Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 11 of 50 ::-
-:: 12 ::-
18. PW1, Ct. Manoj who is a witness of investigation, has deposed that on 12.05.2011, he along with prosecutrix, ASI Sushila and Ct.
Virender went to H.No. 272, 3rd Floor, Pocket 3, Paschimpuri, Delhi and arrested the accused persons Brahm Dev Kamat and Om Prakash vide memo Ex.PW1/A and Ex.PW1/B respectively and their personal search were conducted vide memo Ex.PW1/C and Ex.PW1/D respectively. The accused persons were taken to Sanjay Gandhi Hospital for their medical examination and after their medical examination, doctor had handed over sealed blood sample of accused Brahm Dev Kamat along with sample seal of Sanjay Gandhi Memorial Hospital to ASI Sushila. Disclosure statements of the accused persons are Ex.PW1/E and Ex.PW1/F respectively. Both the accused persons had also pointed out the place of occurrence vide pointing out memo Ex.PW1/G and Ex.PW1/H respectively.
19. PW2, HC Narinder Kumar, is the Malkhana Moharrar. On 12.05.2011, W/ASI Sushila deposited the case property in Malkhana and entry of the same were made in register number 19 at serial number 3584 (Ex.PW2/A). On 26.05.2011, he sent the pullandas to FSL Rohini through Ct. Chaand Prakash vide RC No. 73/21/11 (Ex.PW2/B) and the receipt of the same was handed over to him by the Constable.
20. PW3, Ct. Chand Prakash had taken the exhibits of this case from the Malkhana to FSL.
21. PW4, SI Yogender, is the Duty officer who had recorded the Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 12 of 50 ::-
-:: 13 ::-
FIR (Ex.PW4/A) on the basis of rukka which was produced by W/ASI Sushila.
22. PW7, Ct. Virender Singh, is the witness of investigation. He had deposed that on 11/12.05.2011 at about 12:30 a.m., in the night, he along with ASI Sushila, Ct. Manoj and the prosecutrix went to H.No. 272, Pocket-III, Paschim Vihar, Delhi on the third floor where the prosecutrix had been raped by the accused persons on 10.01.2011. Accused persons Brahm Dev Kamat and Om Prakash were interrogated and arrested vide memo (Ex.PW1/A and Ex.PW1/B) and their personal search was also conducted vide memo (Ex.PW1/C and Ex.PW1/D) respectively. Their pointing out memos are (Ex.PW1/G and Ex.PW1/H), disclosure statements are (Ex.PW1/E and Ex.PW1/F) respectively. Accused persons were taken to the Sanjay Gandhi Memorial Hospital for their medical examination and blood sample were also taken. Their blood samples were seized with the sample seal of Sanjay Gandhi Memorial Hospital by seizure memo (Ex.PW7/A) and thereafter accused persons were sent to lock up.
23. PW10, ASI Sushila, IO of the case has been examined as PW8 and also as PW10. Her evidence as PW8 was incomplete. Her evidence as PW10 has been completely recorded with the examination-in-chief and the cross-examination.
24. She has deposed that on 11.05.2011, SHO PS Punjabi Bagh handed over the complaint and FIR to her. On 12.05.2012, she along with Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 13 of 50 ::-
-:: 14 ::-
prosecutrix, Ct. Satbir and Ct. Puneet went to Sanjay Sandhi Memorial Hospital for the medical examination of the prosecutrix and after the examination, doctor had handed over one envelope which contained 12 articles along with one sample seal of Sanjay Gandhi Memorial Hospital which was seized vide memo Ex.PW8/A by her. Thereafter, she along with Ct. Virender, Ct. Manoj and prosecutrix reached at House No. 272, Pocket-3, IIIrd floor, Paschim Vihar where the accused persons Brahm Dev Kamat and Om Prakash were got arrested vide arrest memos (Ex.PW1/A and Ex.PW1/B respectively). Their personal search was taken vide personal search memos (Ex.PW1/C and Ex.PW1/D respectively). Thereafter, accused Brahm Dev Kamat was taken to Sanjay Gandhi Memorial Hospital for his medical examination and she received a sealed blood sample of accused Brahm Dev Kamat along with sample seal of Sanjay Gandhi Memorial Hospital vide seizure memo (Ex.PW7/A). On 14.05.2011, she had produced the prosecutrix before the learned Metropolitan Magistrate, West District for recording her statement under Section 164 Cr.P.C. On 26.05.2011, she had deposited all the exhibits of accused and prosecutrix to FSL Rohini. Thereafter, she prepared challan and file was put up before SHO.
MEDICAL AND FORENSIC WITNESSES
25. PW5, Dr. M.Das, CMO at Sanjay Gandhi Memorial Hospital, had medically examined the prosecutrix and had prepared the MLC of the prosecutrix as Ex.PW5/A. He has also deposed that Dr. Arvind, who is no longer working in the hospital and whose present whereabouts are not known, had examined the accused persons, Om Prakash and Brahm Dev Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 14 of 50 ::-
-:: 15 ::-
Kamat, and had prepared their MLCs (Ex.PW5/B and Ex.PW5/C) in his supervision.
26. PW11, Dr. Dhruw Sharma, Assistant Director (Biology), FSL, who had examined the exhibits pertaining to the prosecutrix and accused had given his detailed reports (Ex.PW11/A and Ex.PW11/B).
OFFICIAL WITNESS
27. PW9, Mr. Vishal Pahuja, learned Metropolitan Magistrate, Tis Hazari Courts, West District, Delhi has recorded the statement of prosecutrix (Ex.PW6/B). Application for recording the statement of prosecturix (Ex.PW9/B) was moved. Certificate of the proceedings (Ex.PW9/A) was given. IO has identified the prosecutrix.
TESTIMONY OF THE DEFENCE WITNESS
28. DW1, Ct.Manish Kumar, produced the summoned record i.e. the four original DD registers pertaining to the following DDs
(i) DD No. 38B dated 23.04.2011 PS Madipur
(ii) DD no. 53B dated 27.04.2011 PS Madipur
(iii) DD No. 38B dated 07.05.2011 PS Madipur
(iv) DD No. 37 dated 05.07.2011 PS Madipur
(v) DD No. 56B dated 11.05.2011 PS Punjabi Bagh
29. Copies of the same are Ex.DW1/A to Ex.DW1/E. As per the record no action has been taken on any of the above mentioned DD entries. He did not have any personal knowledge about any of the above mentioned Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 15 of 50 ::-
-:: 16 ::-
DD entries. In his cross examination, he has deposed that he did not know what action was taken on the aforesaid DD entries.
DISCUSSION, ANALYSIS AND OBSERVATIONS
30. 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 Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 16 of 50 ::-
-:: 17 ::-
deposition and his demeans, clarity, corroboration of witnesses and overall, the 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.
31. Under this sphere, I now proceed to test the submissions of both the sides.
IDENTITY OF THE ACCUSED
32. There is no dispute regarding the identity of the accused Mr.Brahm Dev Kamat and Mr.Om Prakash. It is also not in dispute that they were known to the prosecutrix prior to the lodging of the FIR. They are also named in the FIR.
33. Therefore, the identity of both the accused persons stands established.
AGE OF THE PROSECUTRIX
34. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident as she has herself stated in her complaint (Ex.PW6/A) as well as her statement under section 164 of the Cr.P.C. (Ex.PW6/B) her evidence that she is 20 years old. The MLC (Ex.PX-1) also shows her age as 20 years.
35. Therefore, it is clear that the prosecutrix was a major on the Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 17 of 50 ::-
-:: 18 ::-
date of alleged offence.
VIRILITY OF THE ACCUSED
36. Both the accused have been medically examined by Dr.Arvind who is no longer in the hospital and the MLCs (Ex.PW4/B and Ex.PW4/C) have been proved by Dr.M.Das (PW7) under whose supervision Dr.Arvind was working.
37. In the MLC of accused Brahm Dev Kamat (Ex.PW4/C), it is opined that "There is no evidence to suggest that the person is not capable of performing the sexual intercourse."
38. In the MLC of accused Brahm Dev Kamat (Ex.PW4/C), it is opined that "There is no evidence to suggest that the person is not capable of performing the sexual intercourse."
39. The MLC of accused Om Prakash (Ex.PW4/B) does not mention about his capacity of performing the physical act.
40. PW5 has not been cross examined by the accused nor the defence of the accused is that he is impotent.
41. This report indicates that the accused Brahma Dev Kamat is virile and is capable of performing sexual act and is capable of committing the act of rape.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 18 of 50 ::-
-:: 19 ::-
MLC OF THE PROSECUTRIX AND FSL REPORTS
42. The MLC of the prosecutrix (Ex.PW4/A, Ex.PX-1) shows that the hymen is torn. It mentions the history as "sexual assault (rape) 1 yr. back ? on 2.1.10 A/C to patient and she was raped by Brahmdev Kamat on 2.1.10 at 3-3.30 PM at 272, Pocket-3, Paschimpuri in presence of his brother present Om Prakash Kamat.....". There are no injury mark on thighs.
43. PW5, Dr.M.Das, has not been cross examined and therefore her testimony and the MLC of the prosecutrix stands impliedly admitted by the accused. Even otherwise, on 17.08.2012, the counsel for the accused had made a statement on their behalf that the accused do not dispute the MLC of the prosecutrix and the same may be read in evidence against them.
44. It also reveals on the perusal of the MLC of the prosecutrix that in her initial medical examination, she has stated that since 2 weeks, she is abstaining while in her gynecological examination, she has stated that there is no relation between them for last 2 months. The contradiction in the period of abstinence has not been explained by the prosecution.
45. Another relevant fact revealed in the MLC of the prosecutrix is that she has stated to the doctor that after the initial incident of 02.01.2011, "this was carried out for 1 year. For initial 3-4 months it was forceful and then it was with mutual consent." Even this part of the statement of the prosecutrix has not been explained by the prosecution that it was forcefully Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 19 of 50 ::-
-:: 20 ::-
done initially, why was it with mutual consent later on.
46. Further, the FSL reports (Ex.PW11/A and Ex.PW11/B) also show that human semen was not detected on the exhibits including the vaginal swabs, vulval swabs, pubic hair, clothes of the prosecutrix etc. The same have not been disputed by the accused and stand impliedly admitted by the accused.
47. 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.PW5/A), the probability is that rape is not committed.
48. 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 and the FSL reports would have shown the presence of semen.
49. There is nothing incriminating against the accused in the Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 20 of 50 ::-
-:: 21 ::-
medical and forensic evidence produced by the prosecution.
DEFENCE OF THE ACCUSED
50. In their respective statements under section 313 of the Cr.P.C., both the accused have given mainly three word answers by saying "It is incorrect" to most of the questions or feigning ignorance by saying "I do not know". They have stated that they are innocent and have been falsely implicated in this case. One Mr.Deen Dayal Kamat was working under Mr.Brahamdev Kamat in his placement agency, which used to supply maid and servant. He has got both the accused implicated in the present case by using a planted witness i.e. the prosecutrix (PW6) as he had raped a girl ad accused Mr.Brahm Dev Kamat was a witness against him and he had even made complaints against him.
51. Except for a cursory suggestion to the prosecutrix (PW6) to the effect that the present case was made against both the accused by using a planted witness i.e. the prosecutrix (PW6) in connaivance with Mr.Deen Dayal Kamat who had opened his own placement agency which has been denied by her, the accused have preferred not to lead any evidence in their defence in support of their stand. DW1, Ct.Manish Kumar has only produced the complaints given by the accused to the police against Mr.Deen Dayal Kamat and the prosecutrix but he has also deposed that no action was taken on them. The accused have also not claimed that they have pursued their complaints by using appropriate legal process which indicates that they have abandoned those complaints.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 21 of 50 ::-
-:: 22 ::-
52. Therefore, I am of the considered opinion that there is no veracity in the defence of the accused.
DELAY IN FIR
53. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration. It is claimed by the accused that as the FIR has been lodged on 11.05.2011 at 18.40 hours while the date of alleged offence is 10.01.2011 to 11.05.2011 and the delay in lodging of the FIR has been not explained by the prosecution.
54. 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 since the prosecutrix was under the fear of the accused.
55. The prosecutrix has stated in her complaint (Ex.PW6/A) that the incident occurred on 10.01.2010. In her statement under section 164 of the Cr.P.C., she does not give any date but states that the incident occurred in January, 2010. In her evidence before the Court, she deposes the date of incident as 10.01.2011. The MLC of the prosecutrix (Ex.PW5/A) also mentions the date of offence as 02.01.2010. (The contradictions in the dates shall be discussed in the evidence of the prosecutrix subsequently.) The prosecutrix in her various statements has also mentioned different dates of offence.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 22 of 50 ::-
-:: 23 ::-
56. 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.
57. 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 same could be condoned moreover when the evidence of the victim is reliable and trustworthy. 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 Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011. FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 23 of 50 ::-
-:: 24 ::-
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.
58. Before coming to the merits of the present case, an argument has been raised by the counsel for the accused regarding the delay in registration of the FIR. In this regard, I may observe that 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.
59. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
60. 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 Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011. FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 24 of 50 ::-
-:: 25 ::-
that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any 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."
61. 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"
62. 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"
63. I find on perusal of the record that indeed the criminal action was swung into motion after about sixteen months (as per the complaint of the prosecutrix-Ex.PW6/A and statement under section 164 of the Cr.P.C- Ex.PW6/B); after about four months (as per the FIR-Ex.PW4/A and her Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 25 of 50 ::-
-:: 26 ::-
evidence before the Court); after over sixteen months (as per her MLC in which she states that the date of offence is 02.01.2010). The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged incident, she went to work, brought other girls from her village for working as domestic maids, talked to Mona when she came there, called visitors (Ms.Pushpa), talked on the mobile phone etc. No explanation is coming forth from the prosecution as to why she did not tell anyone about the rape with whom she may have come in contact after the alleged incident. She was not under the control of the accused between this period and could have easily disclosed about the incident if she wanted to.
64. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
65. Therefore, it can be said that the FIR was lodged after a considerable which is unexplained which is fatal to the prosecution story.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
66. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW6, the prosecutrix, as she has taken different stands in her statements.
67. In the Court, during trial, the prosecutrix, as PW6, in her evidence, has deposed that that she was permanently resident of Village Chandawal, PO Hirsi, Distt. Jamuha, Jharkhand and had come to Delhi Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 26 of 50 ::-
-:: 27 ::-
about 4-5 years ago with her one of acquaintance of her village namely Mona. She started working as maid servant in the house of Ms. Renu Arora in Paschim Vihar for about four years and Mona was working in a house in Punjabi Bagh and accused Brahm Dev Kamat used to work as driver in the house adjoining to house where Mona was working. Mona introduced her to accused Brahm Dev Kamat who had advised her and Mona to start a new Placement Agency which they agreed. On the advice of Mona, on 10.01.2011, the prosecutrix accompanied him to see his office at House No. 272, 2nd floor, Pocket-III, Paschim Puri, Delhi and there the accused told her to sit in a room and he was going to prepare tea for the prosecutrix. After drinking that tea, the prosecutrix feeling giddiness and had slept in that room. Thereafter when she got up, she saw that accused Brahm Dev Kamat was naked and was lying beside her and her salwar was also torn, when she regained her consciousness. Thereafter, accused Brahm Dev Kamat had tried to remove her clothes and had raped her and in the meanwhile the accused Om Prakash came there and beat the prosecutrix with a danda (stick) and also took her photographs in the mobile phone. Both the accused persons threatened her if she did not work in the office of accused Brahm Dev Kamat, he would get her naked photographs published in the newspaper and would also tell her parents and he also threatened to kill her. Accused persons had also forced the prosecutrix to bring more girls from Jharkhand to work as maid servants in their agency. Accused Brahm Dev Kamat has been raping her for about one year after this incident and had threatened to kill her if she disclosed about this incident to anybody and also kill her parents. She also doubted that accused persons are also indulging in selling girls after taking them to Haryana. Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 27 of 50 ::-
-:: 28 ::-
She refused to go for work in Kothi in Gurgaon and thereafter the prosecutrix went to the house of her maternal uncle (Mama) namely Rajender Rai at Nihal Vihar and had told the whole incident to him and thereafter he took her to PS Punjabi Bagh and lodged complaint (Ex.PW6/A) before SHO, PS Punjabi Bagh. Police officials took her to Sanjay Gandhi Memorial Hospital and her statement under Section 164 Cr.P.C. had been recorded by the Magistrate.
68. In her cross examination by the counsel for accused, she has deposed that her parents, her brother and sisters lived at village and she was living at Delhi with Mr. Rajender Rai, her Mama( maternal uncle) who he is not her real mama. She had come to the Court with Mr.Deen Dayal and Mr.Mahesh. She knew Mr. Deen Dayal Kamat since he had started coming to the Court and knew accused Brahm Dev Kamat since one year prior to the lodging of the FIR. She had come to Delhi for the first time about 4-5 years ago and had worked initially in A-1/132, Paschim Vihar in the house of Ms. Renu Arora as a domestic helper and had worked there for about 4 years. She was introduced to accused Brahm Dev Kamat by her sister Mona about two years ago and she did not know any lady by the name of Vivyani. She was not aware about the four complaints filed against her, Deen Dayal, Raju @ Sanjay and Rajender Rai in PS Madi Pur vide DD No. 38B dated 23.04.2011, DD No.53B dated 03.04.2011, complaint dated 07.05.2011 and complaint dated 08.07.2011. The complaints have been filed by Vivyani and accused Brahm Dev Kamat. On 10th December, the accused persons had raped her two years ago and she had lodged the FIR after 1-2 months of the incident committed by Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 28 of 50 ::-
-:: 29 ::-
Brahm Dev Kamat and had remained at his house for around one year. There were nobody at the house except the accused Brahm Dev Kamat and his brother Om Parkash on the date of occurrence. The accused had committed rape with her when she went at the house of accused Brahm Dev Kamat and had torn her clothes, but she did not handed over the same to the police. At the time of preparing tea, accused Om Prakash was sitting in a room adjacent to the kitchen. When she woke up, her shirt was torn and her salwar was removed. Accused Brahm Dev Kamat raped her after she had woken up. The door of the room was closed at that time. The prosecutrix did not receive any injuries in the incident. Accused Om Parkash was taking the photographs of the incident with the black colour mobile phone which he was holding in his right hand and he had a danda in his left hand but she did not tell police that accused Om Parkash had taken the photographs with a mobile phone. The prosecutrix had received some injuries due to the beating with the danda but she had not told the police regarding her receiving injuries due to the beating with the danda. She stayed in the house of accused Brahm Dev Kamat after the incident for about one year. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that she had told her sister Mona about the incident after one year of its occurrence. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that accused Om Parkash was in the room when accused Brahm Dev Kamat had committed rape upon her. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that she had lived in the house of accused Brahm Dev Kamat for about one year after the incident of rape. The Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 29 of 50 ::-
-:: 30 ::-
residence of accused Brahm Dev Kamat is on the top floor i.e. third floor and he is running the placement agency from there. A coaching centre is run on the floor below. Accused Brahm Dev Kamat used to keep her locked at all time. Several girls used to come there in his presence as well as absence. She had talked to the other girls but had not told them about the incident. She did not tell the learned Magistrate recording her statement under section 164 Cr.P.C as well as the police that he used to keep her locked. After leaving the house of accused Brahm Dev Kamat, she had gone to the house of Jitni at Raghuvir Nagar as she hails from her village and thereafter she had started living in Nihal Vihar at the house of Mr. Rajender Rai. She had lodged the FIR after about 0ne year of the incident of rapee.She had gone to the PS along with Mr. Rajender Rai for making the complaint. She did not know any Deen Dayal Kamat. She also did not know whether Vivyani had a lodged a case of rape against Deen Dayal Kamat. She had gone to the police to a doctor for medical examination and made the complaint and she had told the doctor about the incident. She has not met accused Brahm Dev after leaving his house. She again said that she had met him once as she wanted him to release one girl and two boys whom she had given him for working in his house. One Ms.Pushpa had brought them on the road outside the residence of the accused and she had told her on the phone about the address and had used the phone of accused Brahm Dev for telephoning Ms.Pushpa. She did not know any Deen Dayal Kamat and did not know whether any rape case was lodged against him. She had never gone to the house of accused Brahm Dev Kamat after the lodging of the FIR.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 30 of 50 ::-
-:: 31 ::-
69. In her complaint (Ex.PW6/A), the prosecutrix has stated that she came to Delhi with her sister Ms.Mona in January, 2010 and worked as a maid. Accused Brahm Dev Kamat came to her with her sister and offered to run a placement agency with her. Initially she rufed and then agreed for the same. On 10th January, she went with him to H.No.272, Third floor, Pocket-3, Paschim Puri where he offered her tea. After drinking it as she had nausea, he made her lie down in a room. When she recovered consciousness, she saw that he was undressed and lying next to her and was trying to remove her clothes. When she resisted and raised alarm, accused Om Prakash, his elder brother, came and started taking photographs with his mobile phone and beating her with a stick (danda). Accused Brahm Dev raped her and continued to do so every two to four days. Both the accused threatened to circulate her photographs and out of fear she remained silent. Five-seven days prior to Holi another girl by the name of Ms.Meen came there and the accused made her run away threatening her to kill her and her father if she told anyone about the incident.
70. In her statement under section 164 of the Cr.P.C. (Ex.PW6/B), the prosecutrix has deposed that the incident is of January, 2010. She has deposed that Brahm Dev Kamat came to the house where she was working and asked her to see his office which she refused. After two days, he came again and on his insisting, she agreed and went with him to his office where he prepared tae for her. After taking tea, she had nausea and told him that she felt like sleeping on which he told her to sleep there. When she woke up, she found that accused was without his clothes Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 31 of 50 ::-
-:: 32 ::-
and was lying next to her. He forcibly removed her clothes and raped her. At that time, his elder brother, Mr.Om Prakash was also there and took her photographs and beat her. They threatened her that they would show her photographs to her parents if she did not bring other girls for work and also threatened to kill her parents and her, if she dislosed about the incident. Out of fea, she could not tell anyone.
71. The prosecutrix has taken different stands and given different versions of the alleged incident in her complaint to the police, her statement under section 164 of the Cr.P.C., to the doctor in her MLC and her evidence before the Court. The same are being tabulated below:
Evidence of Statement of the Complaint of MLC of the the prosecutrix prosecutrix under the prosecutrix prosecutrix-
as PW6 section 164 of the to the police- Ex.PW5/A,
Cr.P.C.- Ex.PW6/A Ex.PX-1
Ex.PW6/B
Incident is of Incident is of Incident is of Incident is of
10.01.2011. January, 2010. 10.01.2010. 02.01.2010.
Brahm Dev No such No such No such
worked as a deposition. deposition. deposition.
driver.
Brahm Dev No such Brahm Dev No such
Kamat deposition. No Kamat deposition.
introduced to mention of Mona. introduced to
the prosecutrix the prosecutrix
by Mona, girl by Mona, her
from her sister.
village.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh,
Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 32 of 50 ::-
-:: 33 ::-
Brahm Dev No such Brahm Dev No such
Kamat offered deposition. Kamat offered deposition.
her to start a Accused asked her her to start a
new placement to see his office new placement
agency. agency.
H.No.272, 2nd Address not H.No.272, 3rd 272, Pocket-3.
Floor, Pocket-3, mentioned. Floor,
Paschim Puri. Pocket-3,
Paschim Puri.
Brahm Dev She became Brahm Dev No such
Kamat was unwell Kamat was deposition.
naked and lying naked and
beside her and lying beside
her salwar was her and trying
torn. to remove her
salwar.
Rape by Rape by accused Rape by For initial 3-4
accused Brahm Brahm Dev accused Brahm months it was
Dev Kamat. Kamat. Dev Kamat. forceful and
then it was with
mutual consent.
Threatened to Threatened to Threatened to No such
publish her show her publish her deposition
photographs in photographs to her photographs in
newspaper and parents. newspaper.
tell her parents.
Raped her for No such No such After
about one year deposition. deposition. 02.01.2010, this
Raped her was carried out
every 2-4 days. for 1 year.
When Meena No such When Meena No such
came, accused deposition. came, accused deposition.
asked her to go made her run
away away
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh,
Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 33 of 50 ::-
-:: 34 ::-
No such No such Accused was No such
deposition. deposition. selling girls in deposition.
Haryana.
72. The prosecution has failed to furnish any explanation in respect of the contradictions in the different 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 of victim 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.
73. In the light of the aforesaid nature of deposition of the prosecutrix, PW6, who happen 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."
74. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487. Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 34 of 50 ::-
-:: 35 ::-
75. The prosecutrix has stated in her complaint (Ex.PW6/A) that the incident occurred on 10.01.2010. In her statement under section 164 of the Cr.P.C., she does not give any date but states that the incident occurred in January, 2010. In her evidence before the Court, she deposes the date of incident as 10.01.2011. The MLC of the prosecutrix (Ex.PW5/A) mentions the date of offence as 02.01.2010. The prosecutrix in her various statements has also mentioned different dates of offence. There is no clarification or explanation coming from the prosecutrix or the prosecution regarding the actual date of the incident.
76. Also, it can be seen from the cross examination of the prosecutrix conducted on 17.08.2012 that she has deposed that the accused persons had raped her on 10th December two years ago. This is yet another date given by the prosecutrix. Then she says that she had lodged the FIR after 1-2 months of the occurrence while the FIR has been lodged on 11.05.2011 which is much more than 1-2 months from December, 2010.
She further deposes that she went in the month of December, 2010 and remained at his house for around one year. This is also in contradiction to the record. Further she says that she got the FIR lodged after about one year of the incident of rape which too is contrary to the complaint (Ex.PW6/A) as well as the FIR.
77. Since the prosecutrix is changing her version about the date of incident in her different statements, her evidence lacks credence.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 35 of 50 ::-
-:: 36 ::-
78. Also the description of the place of occurrence is changing at different places. In the site plan (Ex.PW8/B) it is H.No.272, Pocket-3, P. Puri, 3rd Floor. In the complaint (Ex.PW6/A) it is H.No.272, 3rd Floor, Pocket-3, Paschim Puri. In the statement under section 164 of the Cr.P.C. (Ex.PW6/B) the address is not mentioned. In her evidence before the Court, the prosecutrix has deposed the place of incident as H.No.272, 2nd Floor, Pocket-3, Paschim Puri. This too shows that the evidence of the prosecutrix is not trustworthy especially since she has claimed to have stayed at the place of incident for one year.
79. Further, it can be seen from the evidence of the prosecutrix that she is not telling the truth. On one hand, in her cross examination, she has deposed that Mr.Deen Dayal is the real Mama of Mahesh and she also addresses him as Mama and has come with him to the Court but later in the day she retracts and deposes that she does not know any Deen Dayal Kamat.
80. Also, the prosecutrix has deposed that she has never gone to the house of accused Mr.Brahm Dev Kamat after the lodging of the FIR and not even with the police but in the arrest memos of the accused (Ex.PW1/A and Ex.PW1/B which their residence as the place of their arrest) as well as their personal search memos (Ex.PW1/C and Ex.PW1/D) that her presence is shown and she has also signed on all the documents. This too makes her testimony unreliable.
81. Further, as per her deposition accused Om Parkash Kamat was Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 36 of 50 ::-
-:: 37 ::-
sitting in another room and the door of the room in which the incident had occurred was closed, then how he could have entered the same and take photographs and beat the prosecutrix is not possible. No explanation is coming from the prosecution regarding this part of the deposition.
82. As per the prosecutrix, she lived in the house of the accused for one year after the incident and during this period other girls had come there and she had talked to them. There was a coaching centre on the floor below the place of incident where the students and teachers were available. She alos went to Jharkhand to bring other girls for working as maids. She was inviting other people (Ms.Pushpa) to the house. She was also using a phone. She has also told the doctor that after 3-4 months, her physical relations with the accused were with mutual consent. It is not in dispute that the prosecutrix was free to move about but apparently has not made any complaint to anyone nor raised alarm at any point for help. In such a situation, it is not possible to believe that the prosecutrix was kept forcibly by the accused and raped for one year.
83. Another contradictory fact which is seen is that the prosecutrix has claimed that accused Brahm Dev Kamat raped her when she woke up. If she was unconscious and could offer no resistance, then there was no reason for the accused to wait for her to wake up and then rape her.
84. Consequently, no inference can be drawn that the accused are guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 37 of 50 ::-
-:: 38 ::-
unworthy of credence.
85. 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 of victim 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.
PROMISE TO MARRY AND PHYSICAL RELATIONSHIP
86. 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.
87. On the other hand, it had argued by the counsel for the accused that no such incident ever took place.
88. 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 Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 38 of 50 ::-
-:: 39 ::-
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."
89. 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."
90. 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."
91. 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 Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011. FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 39 of 50 ::-
-:: 40 ::-
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."
92. 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).
93. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be 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.
94. Also, there is no explanation coming from the prosecution as to why should she keep it a secret from all if really she had belief in that promise of marriage. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 40 of 50 ::-
-:: 41 ::-
95. 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. Even otherwise, the prosecutrix has deposed in her evidence that she was not ready to marry the accused.
96. As per the prosecutrix, she lived in the house of the accused for one year after the incident and during this period other girls had come there and she had talked to them. There was a coaching centre on the floor below the place of incident where the students and teachers were available. She also went to Jharkhand to bring other girls for working as maids. She was inviting other people (Ms.Pushpa) to the house. She was also using a phone. She has also told the doctor that after 3-4 months, her physical relations with the accused were with mutual consent. It is not in dispute that the prosecutrix was free to move about but apparently has not made any complaint to anyone nor raised alarm at any point for help. In such a situation, it is not possible to believe that the prosecutrix was kept forcibly by the accused and raped for one year and in fact shows that her relationship with the accused was voluntary and with her free consent.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 41 of 50 ::-
-:: 42 ::-
97. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped as her consent is not free.
SECTIONS 376 AND 506 OF THE IPC
98. In the present case, the charge sheet was filed under sections 376/506 of the IPC and the charge for offence under sections 376 and 506 of the IPC was framed against both the accused.
99. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
100. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011. FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 42 of 50 ::-
-:: 43 ::-
stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
101. Section 506 of the IPC requires that the impact of the alleged threat should be such that the victim is unable to even seek help.
102. In the present matter, it is clear that the offence is alleged to have been committed in an office where there are presumed to be other people also. There is no reason shown why the prosecutrix did not disclose about the incident of rape and threat after the incident immediately and even later. Apparently, the threat was not of such nature where she would feel scared for sixteen months and then suddenly the impact of the threat would disappear and she would go the Police Station for lodging the complaint.
103. Also, it cannot be ignored that the prosecutrix did not give her clothes to the doctor. There is no incriminating material i.e. danda and mobile phone containing the photographs of the prosecutrix, recovered from the accused to substantiate the prosecution case. Even some material witnesses i.e. Ms.Mona, Ms.Pushpa, Ms.Renu Arora etc. have neither been made the witnesses of the prosecution nor produced nor examined to corroborate the evidence of the prosecutriox.
104. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 43 of 50 ::-
-:: 44 ::-
prosecution has failed to establish rape or threat. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. It appears from the evidence that it is not a true case.
105. The prosecutrix was living and working in city like Delhi. There was nothing to stop her from disclosing about the incident, if it ever occurred. She has been in contact with the other workers and inmates of the placement agency, her employer, the other girls, etc. If the accused had actually raped her, she had more than ample opportunity to disclose it to the others. From the conduct of PW6, the prosecutix, it is clear that PW6 is deposing falsely as if such an incident took place, there was nothing to stop her from immediately disclosing it.
MENS REA / MOTIVE
106. Regarding the motive of crime, it may be observed that in a case based on circumstantial 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 circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
107. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 44 of 50 ::-
-:: 45 ::-
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.
108. 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. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. 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 forward in cases as a general rule of prudence. There is no such general rule. Each case Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 45 of 50 ::-
-:: 46 ::-
must be limited to and be governed by its own facts.
109. In the present case, a story has been projected that the accused has raped and threatened the prosecutrix and this version appears to be untrue as there is no reason why he would do so. There does not appear to be any criminal intention and mens rea on the part of the accused.
CONCLUSION
110. Although the charge under section 376 (2) (g) of the IPC has been framed against both the accused persons but it is clear that the prosecutrix has not leveled allegations of rape against accused Om Prakash Kamat and her evidence qua accused Brahm Dev Kamat is unbelievable. The allegations of threat are also not reliable, as discussed above. Since the prosecutrix as PW6 have not deposed anything incriminating against the accused and also there are overwhelming contradictions in her different statements, 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.
111. Where the prosecutrix had sufficient opportunity not only to run away from the accused but she could have taken the help of the neighbours and medical evidence also indicated that there were no injuries on the person of the prosecutrix, it can be said that the offence was not committed.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 46 of 50 ::-
-:: 47 ::-
112. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape or threatening by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
113. It is not proved that the accused on 10.01.2011 at H.No. 272, Pocket-C, Paschim Puri, Delhi committed gang rape with prosecutrix without her free consent and thereafter accused Brahm Dev Kamat repeatedly committed rape with the prosecutrix and on the aforesaid time, place they both had threatened the prosecutrix with threat to kill her and her parents.
114. 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:
1. 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;
2. 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;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 47 of 50 ::-
-:: 48 ::-
5. 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.
115. Applying the above principles of law to the facts of present case, it is evident that the identity of both the accused Mr.Brahm Dev Kamat and Mr.Om Prakash stands established. They were known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor at the time of the alleged incident. It also stands established that the accused had neither raped her nor threatened to kill her. There is no incriminating evidence against both the accused.
116. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape or threat to kill. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
117. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped and threatened.
118. 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 both the accused persons.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 48 of 50 ::-
-:: 49 ::-
119. Accordingly, Mr.Brahm Dev Kamat and Mr.Om Prakash Kamat, both the accused persons, are hereby acquitted of the charges.
120. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
121. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
123. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
124. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
125. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 49 of 50 ::-
-:: 50 ::-
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 25th day of March, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 06 of 2013.
Unique Case ID Number : 02401R0278462011.
FIR No. 100/11, Police Station Punjabi Bagh, Under sections 376, 506, 34 of the Indian Penal Code. State versus Brahm Dev Kamat and another. -:: Page 50 of 50 ::-