Delhi District Court
State vs Deen Dayal. -:: Page 1 Of 47 ::- on 7 April, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
State
versus
Mr. Deen Dayal
Son of Mr. Prem Dayal,
Resident of B-32, J.J.Colony,
Shiv Vihar, Hastsal,
Uttam Nagar , Delhi.
First Information Report Number : 254/13.
Police Station Uttam Nagar.
Under sections 420/376 of the Indian Penal Code.
Date of filing of the charge sheet before : 01.08.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 03.09.2013.
Arguments concluded on : 07.04.2014.
Date of judgment : 07.04.2014.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State is on leave today.
Mr.Ajit Kumar Shrivastav, Substitute Additional Public
Prosecutor for the State.
Accused on bail with counsel, Mr.Manish Kumar.
Ms.Shubra Mehndiratta and Ms.Poonam Sharma, counsel
for the Delhi Commission for Women.
***********************************************************
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, Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 1 of 47 ::-
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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. 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 and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male on the pretext of promise to marry and whose trust is betrayed by a man in whom she reposes maximum trust so much so as to surrender herself before him into a physical relationship and also made to terminate her pregnancy and then she is left by this man.
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 and not get swayed by minor contradictions or insignificant Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 2 of 47 ::-
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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. Deen Dayal, the accused, has been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under section 376/420/313 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that in the year 2012 and 3-4 months prior to the lodging of FIR at H.No.B-32, Shiv Vihar, J.J.Colony, Uttam Nagar, Delhi within the jurisdiction of Police Station Uttam Nagar, he committed rape upon prosecutrix (name withheld to protect her identity) on the pretext of marriage and during the above said period, he got the pregnancy of prosecutrix terminated at clinic of Sri Ram Hospital, Vikas Nagar, Delhi against her consent.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 3 of 47 ::-
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filed before the Court of the learned Metropolitan Magistrate on 01.08.2013 and after its committal, the case was assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 03.09.2013.
CHARGE
5. After hearing arguments, charge for offence under sections 376/420/313 of the IPC was framed against the accused Mr. Deen Dayal vide order dated 07.04.2014 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 09 witnesses i.e. Prosecutrix as PW1; Dr.Pallavi Borah who had medically examined the prosecutrix as PW2; Dr. Sumana, who had medically examined the prosecutrix as PW3; HC Satyapal, who is the duty officer who had recorded the FIR of the case is PW4; WCt. Seema, who took the prosecutrix to DDU Hospital for her medical examination as PW5; Dr Rishi, who had been deputed in place of Dr.Ashish Kumar Jain, who had examined the accused, and proved the MLC of the accused, as PW6; Dr. R.K.Bhardwaj from the hospital where the alleged abortion of the prosecutrix was conducted, as PW7; Ct. Amit Kumar, a witness of investigation as PW8; and SI Satyawati, the Investigation Officer of the case as PW13.
7. The accused has preferred not to cross examine PWs 2, 3, 4, 5, Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
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6, and 8 and therefore their evidence can be presumed to have been admitted as correct by the accused since it remains uncontroverted and unrebutted.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
8. In his statement under section 313 of the Cr.P.C., recorded on , the accused Deen Dayal has controverted and rebutted the entire evidence against him submitting he is innocent and falsely implicated in this case. As the prosecutrix was not paying rent to his mother despite her demands and his mother wanted her to vacate the premises, she has lodged this false case against him in order to grab his mother's property. He has preferred to lead evidence in his defence.
DEFENCE EVIDENCE
9. In his defence, the accused has examined her mother, Ms. Saroj Bala as DW1.
ARGUMENTS
10. I have heard arguments at length on 01.04.2014 of the Additional Public Prosecutor (regular) and the counsel for the accused. Further arguments of the Substitute Additional Public Prosecutor and the counsel for the accused have been heard today. 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 : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 5 of 47 ::-
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11. The Additional Public Prosecutor for the State and the Substitute Additional Public Prosecutor for the State have requested for convicting the accused Deen Dayal for having committed the offence under sections 376/420/313 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 accused on the record. There is an unexplained delay in the lodging of FIR. There is no medical or forensic evidence against the accused. The evidence of the prosecutrix is unreliable as it suffers from various contradictions and inconsistencies. The investigation has not been properly conducted.
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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 6 of 47 ::-
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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 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. Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
15. The prosecution story unveils with the proseuctrix going to Police Station Uttam Nagar on 16.05.2013 about 6.00-7.00 pm where she met IO/SI Satyawati (PW9) and got her statement (Ex.PW1/A) Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 7 of 47 ::-
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recorded against the accused levelling the allegations of rape against him on the pretext of marriage. The accused was the landlord of the prosecutrix. During this period, the accused also reached the Police Station as he might be knowing that prosecutrix had come there to make complaint against him. IO/SI Satyawati (PW9) had conducted enquiries from the accused as well as from the prosecutrix and after her satisfaction that the case was made out, she had prepared rukka (Ex.PW9/A) on the statement of prosecutrix ( Ex.PW1/A) and handed over rukka (Ex.PW9/A) to the duty officer HC Satyapal (PW4) for registration of FIR and got registered the FIR (Ex.PW4/A) against the accused and he made his endorsement (Ex.PW4/B) on the rukka. IO/SI Satyawati (PW9) had instructed Ct. Amit (PW8) to take the accused into his custody and thereafter he was arrested the accused vide arrest memo (Ex.PW1/C) and his personal search was taken vide personal search memo (Ex.PW8/A). On 17.05.2013 IO/SI Satyawti (PW9) along with Ct. Amit (PW8) took the accused to DDU hospital for his medical examination where he was medically examined by Dr. Ashish Kumar Jain (who has since left the service of the hospital) vide MLC (Ex.PW6/A) which has been proved by Dr. Rishi (PW6). The samples pertaining to the accused were taken and the sealed exhibits were produced before IO/SI Satyawati (PW9) by Ct. Amit to whom the doctor had handed over and IO/SI Satyawati (PW9) seized the same vide seizure memo (Ex.PW8/B). From the hospital, the accused was taken to PP Madipur where his dossier was prepared and thereafter he was produced in the Court and sent to judicial custody. On 17.05.2013, the prosecutrix came to Police Station and she was sent to DDU Hospital with Ct. Seema (PW5) for her medical examination where she was medically examined Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 8 of 47 ::-
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by Dr. Pallavi Borah (PW2) and Dr. Sumana (PW3) vide MLC (Ex.PW2/A). The prosecutrix refused to get her Gynaecological examination conducted. On 18.05.2013, IO/SI Satyawati (PW9) moved an application before the Court requesting for recording the statement of the prosecutrix under section 164 Cr.P.C (Ex.PW9/B) and on same day the statement of the prosecutrix (Ex.PW1/B) was recorded by Ms. Shivali Sharma, learned Metropolitan Magistrate (judicial notice of the evidence of the learned Metropolitan Magistrate is being taken as mentioned in order dated 01.02.2014) and copy of the statement was supplied to her on her application (Ex.PW9/C). During investigation, IO/SI Satyawati (PW9) had asked the prosecutrix to furnish the documentary proof in respect of the allegations of termination of her pregnancy but prosecutrix stated that she would trace the same and produce in the Court and PWIO/SI Satyawati (PW9) hadrecorded the statement of PWs and after completing the investigation the charge sheet was prepared and submitted before the Court. During trial as per the direction of Court, IO/SI Satyawti (PW9) verified the medical documents pertaining to the termination of prosecutrix after visiting Sri Ram Hospital, Shiv Vihar. She was provided from the hospital the photocopies of the medical records pertaining to the prosecutrix (Ex.PW7/A to Ex. PW7/G) and filed before the Court which were proved by Dr. R. K Bhardwaj (PW7).
16. The allegations against the accused are that in the year 2012 and 3-4 months prior to the lodging of FIR at H.No.B-32, Shiv Vihar, J.J.Colony, Uttam Nagar, Delhi and he committed rape upon prosecutrix on the pretext of marriage and during the above said period, he got the Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 9 of 47 ::-
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pregnancy of prosecutrix terminated at clinic of Sri Ram Hospital, Vikas Nagar, Delhi against her consent.
IDENTITY OF THE ACCUSED
17. There is no dispute regarding the identity of the accused Mr.Deen Dayal who has been identified by PW1, the prosecutrix, as well as the police witnesses of investigation. It is also not in dispute that they were known to each other prior to the lodging of the FIR. Accused is also named in the FIR (Ex.PW4/A) as well as her complaint (Ex.PW1/A).
18. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
19. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. During her evidence on 24.10.2013, the prosecutrix has given her age as 26 years. In her MLC dated 17.05.2013 (Ex.PW2/A), she has disclosed her age as 26 years. As per the prosecution, she was a major at the time of the alleged incident.
20. Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
21. PW6, Dr.Rishi has proved the MLC of the accused (Ex.PW6/A) prepared by Dr.Ashish Kumar Jain (who has since left the services of the hospital). He has not been cross examined by the accused. Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
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22. It is mentioned in the MLC of the accused (Ex.PW6/A) that "There is nothing to suggest that the pt is not capable of doing sexual act"
23. Even on physical examination, the doctor has found that all the secondary sexual characters were well developed.
24. Therefore, it is clear 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
25. PW2, Dr.Pallavi Borah, had medically examined the prosecutrix in the Casualty on 17.05.2013 and has proved her MLC (Ex.PW2/A). There was no fresh injury seen at time of examination. She was referred to Gynecological department for further examination and expert opinion.
26. In the Gynecological department, the prosecutrix was medically examined by Dr.Sumana (PW3). The prosecutrix refused her gynecological examination.
27. Dr.R.K.Bhardwaj (PW7), Medical Superintendent of Shree Ram Hospital has proved the medical record of the prosecutrix (Ex.PW7/A to Ex.PW7/D). In his cross examination, he has admitted that Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 11 of 47 ::-
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the abortion of the prosecutrix was not done in his hospital. He has also deposed that there is no record to show that the gynecologist visited his hospital and examined the prosecutrix or that he had given her opinion.
28. It is clear from the MLC of the prosecutrix (Ex.PW2/A) that the prosecutrix had told PW2 that she had history of sexual assault. However, the prosecutrix told PW3 in the history that she had been in live in relationship with a person named Deen Dayal for one year. She had no physical relationship with Deen Dayal in March, 2013. Sinec then she had no physical relationship. She herself is married to Prem Prakash.
29. The prosecutrix did not have any fresh external injury. She was conscious and oriented.
30. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case. She does not have any fresh injury on her body and had she been raped, there would have been injuries on her body and private parts.
31. However, this contention is not tenable as the medical evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix or the eye witness which is of utmost importance and the judgment is mainly based on that evidence.
Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 12 of 47 ::-
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32. It cannot be ignored that as per the evidence of the prosecutrix, she last had physical contact with the accused in March, 2013 while the prosecutrix was medically examined on 17.05.2013.
33. In such a situation, there could not have been any injury on her body and private parts due to lapse of time. The fact that she had refused her internal medical gynecological examination also does not affect the prosecution case, as no forensic or medical evidence could have been collected due to lapse of time since her alleged last physical contact was in March, 2013.
34. Otherwise also, medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
DELAY IN FIR
35. 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.
36. 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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 13 of 47 ::-
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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.
37. 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.
38. 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.
39. 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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 14 of 47 ::-
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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.
40. 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 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."
41. 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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
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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"
42. 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"
43. It is claimed by the accused that as the FIR (Ex.PW2/A) has been lodged on 16.05.2013 at 19:15 hours while the allegations made by the prosecutrix in her complaint (Ex.PW1/A) are that the accused had physical relations with her on the pretext of marriage several times after she started living in his house as a tenant (date and period not disclosed) and now when he has refused to marry her, she had filed her complaint to the police. The delay in lodging of the FIR has been not explained by the prosecution as the physical relations allegedly were made much prior to the lodging of FIR.
44. The Additional Public Prosecutor, on the other hand, has Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 16 of 47 ::-
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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 impression that the accused would marry her and kept waiting. She had given her complaint (Ex.PW1/A) to the police on 16.05.2013 when the accused refused to marry her and then the FIR was lodged.
45. As per the complaint, Ex.PW1/A which is made on 16.05.2013, the date of the first offence of physical relations is not mentioned.
46. The prosecutrix in her MLC (Ex.PW2/A) dated 17.05.2013 has told in the history that she had physical relations with the accused for one year and for last time in March, 2013.
47. The prosecutrix, in her evidence before the Court, has deposed that when the accused refused to marry her saying that his mother would debar him from her property, she telephoned the police at 100 number.
48. The FIR has admittedly been lodged on 16.05.2013 and the alleged relationship between the accused and the prosecutrix was for one year.
49. As regards the period of one year prior to 16.05.2013is concerned, it may be mentioned that during this period as there was an alleged promise to marry, so there was no occasion for the prosecutrix to make a complaint against the accused and therefore, it can be said that Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
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there is no delay in lodging of the FIR.
50. As long as the commitment of marriage subsists, relationship between the parties could not be described as constituting the offence of rape under section 376 IPC, it was only after the accused had declined to marry with prosecutrix, be different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused declined to marry her. After he declined, without any delay prosecutrix referred the matter to the police and hence it would not be possible to hold that any doubt can be said to have created in the version of the prosecutrix, merely on account of delay in the registration of the first information report.
51. Therefore, it can be said that the FIR was lodged without any delay.
STATEMENTS OF THE PROSECUTRIXAND HER EVIDENCE
52. It is necessary to discuss and analyse the statements and the testimony of the prosecutrix.
53. PW1, the prosecutrix, has deposed on oath that she got married with Mr. Prem Parkash in the year 2001. Her marriage with Mr. Prem Parkash continued for 3-4 years. She had one son from of the said wedlock. Mr. Prem Parkash had extra-martial affair with someone and because of this reason she took divorce from her husband about five years ago at village Julaha Mandi, Jind (Haryana) in Panchayat. There was no Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 18 of 47 ::-
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formal divorce granted by the Court but as her parents had expired when she was a child, her relations were not interested in her welfare and did not come forward to help her during her marital purpose. Some writing work was also done at the time of Panchayat but she had lost the documents during her shifting from one house to another.
54. After divorce, she lived at different places and in the year 2011, she started living in the house of accused Deen Dayal as a tenant at house no. B-32, Shiv Vihar, JJ Colony, Uttam Nagar. During her stay in the house of accused, one day he asked her to have a friendship with him. Initially she refused for it and told the accused that she would like to marry the person with whom she is in friendship. On this accused, agreed to marry her. They developed friendship in the year, 2012. The accused asked her to give her three passport size photographs. Accused is divorcee and on his demand, she handed over her three passport size photographs to him which he pasted on the paper and also obtained her signatures on the photographs. Accused told her that half marriage has been performed and he would perform the remaining half later (aadhi shadi ho gai hai aur aadhi baad mein hogi). Thereafter, the accused started having physical relationship with her on regular basis and they started living as husband and wife. Accused stated that he would use these papers for the purpose of Court marriage with him and thereafter he would arrange for proper marriage in Arya Samaj Mandir. Accused was having one son aged about 17 years and one daughter aged about 16 years at that time. Son of accused was living with him and his daughter was living with his ex-wife. Accused told her that he would complete all the formalities of her marriage Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 19 of 47 ::-
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with him after the exams of his son who was studying in X standard at that time. Accused assured her to marry in the month of March, 2013. In the year 2013, she had got pregnant from the accused twice. For the first time, the accused had given her some medicines and she do not know the name of those medicines but after taking the same, the pregnancy of about 20 days was terminated. Thereafter in the month of January 2013, she again got pregnant from accused and when she was having pregnancy of about two and half months, accused got the same terminated in one hospital in Vikas Nagar. She was not able to recall the name of the hospital, however, same is mentioned in her complaint and documents have also been verified by the IO. The medical prescription, admission and discharge record of prosecutrix and doctor's order sheet dated 30.03.2013 along with treatment chart (Mark A, B, C and D respectively) were produced by her. The admission and discharge record also has the consent form which has been signed by the accused at point X. Accused had accompanied her to the hospital and had got her admitted there for abortion. During her second pregnancy, in order to abort the same, the accused had initially made her consume five tablets of some medicine and as she developed high fever after consuming the tablets, he took her to a clinic in Vikas Puri for ultrasound which was conducted by one Dr.Surya. She did not remember the address and name of the clinic but she can take the police to the same as she knows the location. From the ultrasound, it was revealed that there was some problem since the foetus was not fully aborted and then accused has taken her to the Shree Ram hospital in Vikas Nagar for the abortion. When she came back from the hospital, she asked the accused to show her the ultrasound report, on which he stated that he had torn the same and Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 20 of 47 ::-
-:: 21 ::-
destroyed the entire evidence and also said that she could do whatever she wanted and he had destroyed all the proofs (aab jo tum karne chhati ho kar lo, mein saare saboot meta diya hain). Thereafter, accused told her that his mother did not want him to marry her otherwise she would debar him from her property and would leave the same for his brother and two sisters. After this, the accused refused to marry her. After three days of the incident, she telephoned the police at number 100. The police reached her house and conducted inquiries from her. She narrated every thing to the police but the police did not take action against him. Next day, she made a complaint (Ex. PW1/A) to PS Uttam Nagar on which the present FIR has been lodged. She was taken to DDU hospital for her medical examination. She had refused the Gynaecological examination since she had physical relations with accused for last time in March, 2013. She was produced before the learned Metropolitan Magistrate where her statement under section 164 Cr.PC was recorded (Ex. PW1/B). Accused was arrested by the police vide arrest memo (Ex. PW1/C). She still wanted to marry the accused Deen Dayal who is also known as Bittoo. She has prayed that in case the accused marries her, he may be acquitted but in case he does not marry her, he may be convicted and punished.
55. In her cross examination she has denied the suggestion that Mr. Chhabila is her father. She has admitted to be correct that Mr. Chhabila is still alive. She voluntarily stated that Mr. Chhabila is her paternal uncle (chacha). She admitted that name of her mother is Ms. Prakashi. She denied the suggestion that her mother is still alive. She denied the Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 21 of 47 ::-
-:: 22 ::-
suggestion that her marriage with Mr. Prem Parkash, resident of Mangolpuri, was conducted at Mangolpuri. She voluntarily stated that Mr. Prem Parkash was resident of Rani Bagh, Delhi at the time of her marriage which had been conducted at village Julana Mandi, Jind (Haryana). She has admitted that she has one son namely Master Rishabh aged about five years from her wedlock with Mr. Prem Parkash. She denied the suggestion that she had got married subsequently to one Mr. Shivar wala who is resident of Shiv Vihar and that she has a son from him. She admitted that two boys are living with her. She voluntarily stated that one boy is Master Rishabh who is her son and second boy namely Master Nikhil is aged about 13 years old and he is the son of her sister namely Ms. Sunita. She denied the suggestion that she was turned out of her house by her parents after she married Mr. Shivar wala. She admitted that she had told the learned Metropolitan Magistrate in her statement that as Mr. Prem Parkash had extra martial affair, she had taken divorce from him in the Panchayat (confronted with statement under section 164 Cr.PC Ex.PW1/B where it is not so recorded). However, she had not mentioned this fact in her complaint. She voluntarily stated that neither the police nor learned Metropolitan Magistrate had asked her about her divorce from Mr. Prem Parkash. She admitted that she had not told the learned Metropolitan Magistrate that she was earlier married with Mr. Prem Parkash and then she had taken a divorce from him which was granted in the Panchayat. She denied the suggestion that she had not taken any divorce from Mr. Prem Parkash. She admitted that she had not told the police as well as learned Metropolitan Magistrate that accused Deen Dayal is also known by the name of Bittoo. She voluntarily stated that accused had signed as Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 22 of 47 ::-
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Bittoo on the documents in the hospital where she was taken for abortion. She denied the suggestion that accused Deen Dayal is not known as Bittoo. After her divorce about five years ago from today, she started residing initially at Budh Vihar then she shifted to Shiv Vihar where she resided in two-three different houses. Towards the end of year 2011, she shifted to the house of the accused as a tenant. Again said she had come into this house towards the end of year 2012. She was told by the accused that the house had been purchased in his name in February, 2012. She denied the suggestion that the accused had told her that house has been purchased in the name of his mother Ms. Saroj in February, 2012. Initially the rent was agreed as Rs. 1000/- per month including water and electricity. After 2-3 months as they started having physical relations, the accused stopped taking rent from her. She voluntarily stated that however he had taken Rs. 3,000/- on one occasion and Rs. 1500/ on two occasions but she do not know whether she had taken the same as rent or otherwise. She had not told this fact to the police or learned Metropolitan Magistrate. She cannot read or write English but she can understand the language and can sign in English. She can read and write Hindi. She had worked as a beautician in Kaya parlour at Rohini, Delhi in the year 2001. She admits that she had told the learned Metropolitan Magistrate (Ex. PW1/ B) that she was not paying any rent to the accused. She voluntarily it was because they were having physical relations (at this stage it is pointed out by Addl P.P for State that it is mentioned in Ex. PW1/B that the prosecutrix and accused were living like husband and wife and she was paying the electricity charges). She did not have any proof that she was paying the electricity charges. She used to pay the electricity charges in cash to the accused. Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 23 of 47 ::-
-:: 24 ::-
She admitted that she was residing as a tenant on the first floor of the house of the accused. She admitted that son of the accused was residing with the accused on the ground floor of the house. However, she denied the suggestion that the mother of the accused was also residing with him on the ground floor. She voluntarily stated that mother of the accused was residing at Vijay Enclave but she did not know the exact address. She admitted that the entire first floor had been given to her. There were two rooms on the first floor and four rooms on the ground floor. She denied the suggestion that there are two rooms on the ground floor and one room on the first floor. She voluntarily stated that after the arrest of the accused walls were raised on the ground floor, it was divided into two portions having two rooms on the ground floor and one room on the first floor as she was told by the accused and later on by his mother also that half portion belongs to the accused and remaining half belongs to his sister Ms. Darshana. She denied the suggestion that whenever rent was demanded from her by the mother of the accused, she had threatened to get him falsely implicated in a criminal case. She had not told to the learned Metropolitan Magistrate (Ex.PW1/B) that she had paid rent for 3-4 months to the accused and thereafter friendship has been developed between us due to which she stopped paying rent. She had told the learned Metropolitan Magistrate that the accused had shown her some property papers (makan ke kagaz) telling her that they were the documents of their marriage (shadi ke kagaz). She did not have any of these documents in her possession since the same are in the possession of the accused. When she had taken the first floor of the accused on rent, she was working in VLCC, Sector 11, Dwarka and was paid a basic salary of Rs. 7600/- besides the incentives. She can Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 24 of 47 ::-
-:: 25 ::-
produce her salary slip/record after verifying the same at home. She denied the suggestion that at that time and still today, she has been working in a beauty parlour in Sector 7, Dwarka. She denied the suggestion that the accused had never become friend with her and never had physical relations with her on the pretext of assurance of marriage after putting her photographs on some documents. She denied the suggestion that she got the accused falsely implicated in this case in order to avoid paying the rent to him as demanded by him and as the accused wanted her to vacate the premises since she was not paying any rent. She admitted that prior to 16.05.2013 she has not lodged any complaint of any nature against the accused before any authority. She did not know whether or not Mr. Chhabila had suffered a heart attack after 16.05.2013 when she had lodged FIR against accused. She voluntarily stated that she did not have any contact with him. She denied the suggestion that her parents and Mr. Shivar wala used to object to her returning home late in the night. She admitted that she had not given Mark A, B, C and D to the police during investigation. She did not know the exact date when she had discovered that she had become pregnant for the first time but it was in January, 2013 when the pregnancy of about 20 days was aborted. She voluntarily stated that there was a very little gap between her two pregnancies. She admitted that she had not mentioned about her first pregnancy and subsequent abortion in her complaint (Ex. PW1/A). She had called the police at 100 number when the accused had torn her ultrasound report but the police had not taken any action. She denied the suggestion that as she did not have physical relation at any point of time with the accused there was no occasion of her being pregnant from him and subsequently having to Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 25 of 47 ::-
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undergo two abortions. She denied the suggestion that she has falsely implicated the accused out of vengeance as the accused wanted to her vacate the premises since she was not paying any rent to him. She denied the suggestion that she had demanded Rs. 5 Lacs from the accused to vacate the premises but as he refused to make that payment, she has falsely implicated him. She has brought her original salary slip for the month of November-2012 as well as her name plate (Ex.PW1/D and Ex.PW1/E respectively) to show that she was working with VLCC at the relevant time. She denied the suggestion that the salary slip (Ex.PW1/D) is not regarding her employment since neither the parentage nor address are mentioned in the details of the employee. She denied the suggestion that Ex.PW1/D pertains to employment at M-14, Greater Kailash Part-II, Commercial Complex, New Delhi. She admitted that Ex.PW1/D does not bear seal of the institute as well as the signatures of the persons issuing the same. She voluntarily that she has left her job at VLCC in November, 2013. She did not have any other pay slip in her possession. She denied the suggestion that Ex.PW1/D and Ex.PW1/E are manipulated and forged. She had told the police as well as the learned Metropolitan Magistrate that when she returned from the Shri Ram Hospital after the abortion, she had asked the accused to show her the ultrasound report on which he had stated that he had torn the same and destroyed the evidence and told her that she could do whatever she wanted and he had destroyed all the proofs (she was confronted with complaint Ex.PW1/A and statement under section 164 Cr.P.C Ex.PW1/B where it is not so recorded. ) She had told the police as well as the learned Metropolitan Magistrate that when the accused refused to marry her, she had telephoned the police at 100 number. (she was Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 26 of 47 ::-
-:: 27 ::-
confronted with complaint Ex.PW1/A and statement under section 164 Cr.P.C Ex.PW1/B where it is not so recorded. ). She admitted that the consent form Mark B does not find mention of the name of the patient as well as the name of the patient or his /her relative or friend who has given consent as well as the name of the treating doctor. She denied the suggestion that Mark B as well as Mark A, C and D are manipulated and forged documents. She denied the suggestion that the accused had never promised to marry her. She denied the suggestion that the accused had never had physical relations with her at any point of time. She denied the suggestion that the accused had never got her pregnancy terminated as there were never any pregnancy. She denied the suggestion that she has got the accused falsely implicated in the present case only to grab the property of his mother and to extort money from him.
56. In her complaint (Ex.PW1/A) and statement under section 164 of the Cr.P.C. (Ex.PW1/B), she has made similar statements with some variations.
57. It may be mentioned here at the outset of the discussion of the evidence of the prosecutrix that the prosecutrix has attempted to conceal her marital status regarding her marriage with Mr.Prem Parkash in the complaint, the FIR, the statement under section 164 of the Cr.P.C as well as her examination in chief.
58. In her complaint (Ex.PW1/A), the prosecutrix has only stated that her husband is not living with her for four and a half years. In her Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 27 of 47 ::-
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statement under section 164 of the Cr.P.C. (Ex.PW1/B), the prosecutrix is completely silent about her own marriage. In her examination in chief, she has deposed that she got married with Mr. Prem Parkash in the year 2001. Her marriage with Mr. Prem Parkash continued for 3-4 years. She had one son from of the said wedlock. Mr. Prem Parkash had extra- martial affair with someone and because of this reason she took divorce from her husband about five years ago at village Julaha Mandi, Jind (Haryana) in Panchayat. There was no formal divorce granted by the Court but as her parents had expired when she was a child, her relations were not interested in her welfare and did not come forward to help her during her marital purpose. Some writing work was also done at the time of Panchayat but she had lost the documents during her shifting from one house to another. In her cross examination, the prosecutrix has deposed that Mr. Prem Parkash was resident of Rani Bagh, Delhi at the time of her marriage which had been conducted at village Julana Mandi, Jind (Haryana). She admitted that she had told the learned Metropolitan Magistrate in her statement that as Mr. Prem Parkash had extra martial affair, she had taken divorce from him in the Panchayat (confronted with statement under section 164 Cr.PC Ex.PW1/B where it is not so recorded). However, she had not mentioned this fact in her complaint. Neither the police nor learned Metropolitan Magistrate had asked her about her divorce from Mr. Prem Parkash. She admitted that she had not told the learned Metropolitan Magistrate that she was earlier married with Mr. Prem Parkash and then she had taken a divorce from him which was granted in the Panchayat. She denied the suggestion that she had not taken any divorce from Mr. Prem Parkash.
Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 28 of 47 ::-
-:: 29 ::-
59. It was only in her examination in chief and then cross examination that when questions regarding her marriage were put that she admitted that she got married to one Mr.Prem Parkash prior to meeting the accused. She has tried to cover the same by deposing that this marriage ended in a divorce. It is also clear that the prosecutrix and her husband Mr.Prem Parkash had not taken divorce from any Court. The so called divorce from him which was granted in the Panchayat also cannot be believed as she had no brought any such document of her divorce from Mr.Prem Parkash. Even otherwise, a divorce to be legal has to be obtained from a Court of Law and a decree of divorce is issued. It is clear that they never approached the Court for divorce nor obtained any decree of divorce.
60. The only dispute which emerges is whether or not it was with her free consent or under a misconception on the false pretext of promise to marry that the prosecutrix had physical relations with the accused. By no stretch of imagination it can be said that the accused had promised to marry her as it is clear from the evidence of the prosecutrix she was an already woman who was not legally divorced from Mr.Prem Parkash when she met the accused. She has admitted that she has not taken divorce from Mr.Prem Parkash from any Court which indicates that she is still a married woman. In such a situation, she could not marry the accused or anyone till her marriage with Mr.Prem Parkash subsisted and therefore there could no assurance or promise of marriage by the accused to her. Although she has denied that she was not aware that being married, she could not marry another man but this contention is not believable as there Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 29 of 47 ::-
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is a presumption under the law that everyone is aware of the law of the law and ignorance of law cannot be an excuse to commit any offence. She has admitted in her complaint that her husband Mr.Prem Parkash is not living with her for four and a half years which indicates that she is fully aware that without taking divorce from her husband, she can not marry any one including the accused.
61. It is apparently clear that the prosecutrix had herself got involved physically with the accused during the subsistence of her marriage with Mr.Prem Parkash from whom she had one son.
62. In such a situation the accused could not have married the prosecutrix, even if he wanted to, as she herself was not capable of marrying him being already married herself.
63. It is crystal clear that the prosecutrix had physical relations with the accused voluntarily and with her free consent and it was without any misconception of facts or any false promise of marriage. She was capable of understanding the complications and issues surrounding her marriage with Mr.Prem Parkash and then being involved with the accused to the extent of having physical relations with him. The Court fails to comprehend as to how the allegations of false promise of marriage and rape have been raised by the prosecutrix as she being already married woman could not have married the other man during the subsistence of her marriage. There was no occasion for the accused to offer marriage to her and then her accepting the same and questioning him as to when he would Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 30 of 47 ::-
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marry her since such a marriage is legally not permissible.
64. It may be mentioned here that the hon'ble Supreme Court of India in the judgment reported as Prashant Bharti v. State of NCT of Delhi, MANU/SC/0063/2013: 2013 (1) SCALE 652 has observed in a similar case as follows:
"Priya married another man Manoj on 30.9.2008. This is evidenced by a certificate of marriage dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on the assurance of marriage."
65. The prosecutrix is an adult and is married lady. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about his 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 immediately 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.
66. In such a situation, the assertion made by the prosecutrix that the prosecutrix had physical relations with the accused, on the assurance Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 31 of 47 ::-
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that he shall marry her, is per se false and as such, unacceptable. She can neither be said to so naïve or so innocent or so vulnerable that she did not understand the consequences of being physically involves with a man, other than her husband, when she had not taken a divorce from her husband.
67. It can be seen from the evidence of the prosecutrix that the allegations leveled by her of rape by the accused are false and unbelievable. It seems that she has not been raped but she was a consenting party to the physical relationship with the accused.
68. In the Court, during trial, the prosecutrix, as PW1, in her examination in chief, has ostensibly deposed in favour of the prosecution case (as elaborated above). However, on careful perusal of her evidence, several overwhelming contradictions and inconsistencies are revealed which give a shattering blow to the case. The prosecutrix has made several improvements and contradictions in her evidence from her complaint (Ex.PW1/A) and her statement under section 164 of the Cr.P.C. (Ex.PW1/B). The same have not been explained satisfactorily by the prosecution nor any justified logic or reasoning for the same has been furnished. The improvements and contradictions are as follows:
69. In her evidence, the prosecutrix has deposed that she cannot read and write in English but her complaint (Ex.PW1/A) is signed in English.
Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 32 of 47 ::-
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70. In her evidence, the prosecutrix has deposed that Mr.Chabila is her paternal Uncle (Chacha), in her complaint (Ex.PW1/A) the name of her father is mentioned as Mr.Pyare Lal but in the copy of her PAN card (Mark DW1/B) the name of her father is mentioned as Mr.Chhabila.
71. In her complaint (Ex.PW1/A) and in her statement under section 164 of the Cr.P.C (Ex.PW1/B), the prosecutrix has not mentioned about calling the police at 100 number while in her evidence, she has also deposed that she had called the police at 100 number.
72. In her complaint (Ex.PW1/A) and evidence, the prosecutrix is silent regarding any "hatha pai" (scuffle) while in her statement under section 164 of the Cr.P.C (Ex.PW1/B) she has stated that the mother, chichi and bhabi of the accused did "hatha pai" with her.
73. In her complaint (Ex.PW1/A) and evidence, the prosecutrix is silent regarding the accused selling her gold ring and chain while in her statement under section 164 of the Cr.P.C. (Ex.PW1/B) she has stated that the accused had sold her gold ring and chain.
74. In her complaint (Ex.PW1/A), the prosecutrix has stated that she became pregnant once while in her statement under section 164 of the Cr.P.C (Ex.PW1/B) she has stated that she became pregnant twice and in her evidence, she has also deposed that she became pregnant twice.
75. In her complaint (Ex.PW1/A), the prosecutrix has stated that Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 33 of 47 ::-
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the names of the medicines i.e. combipack of mifepristone and misoprostol tablets of pregterm kit which were brought by the accused for abortion while in her statement under section 164 of the Cr.P.C (Ex.PW1/B) she has stated that the accused brought her some medicine for abortion and in her evidence, she has also deposed that the accused brought her some medicine for abortion, the name of which she did not know.
76. There are contradictions regarding the marital status of the prosecutrix made in her different statements, as already discussed above. She has even gone to the extent of deposing wrongly that she had told the learned Metropolitan Magistrate in her statement under section 164 of the Cr.P.C. (Ex.PW1/B) that as Mr.Prem Parkash had an extra marital affair, she had taken divorce from him in Panchayat as she is completely silent about her marriage in the statement.
77. Even regarding her pregnancies and subsequent abortions, the prosecutrix has failed to produce any proof or documents which makes her version unbelievable. She has also made contradictions regarding the number of her pregnancies and abortions in her different statements. In fact, PW7 has categorically deposed that "It is correct that the abortion of Ms. Lalita was not conducted in the hospital as per Ex. PW7/A to Ex. PW7/D." PW 3 has deposed that the prosecutrix had refused to get her gynecological examination conducted.
78. There is no evidence brought forth by the prosecutrix and the prosecution that the prosecutrix ever got pregnant from the accused and Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 34 of 47 ::-
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that she subsequently had abortions.
79. Further, the prosecutrix has claimed that she was a tenant on the first floor of the house of the accused since 2011. However, it clear from her evidence that she has produced nor proved that she has paid any rent or electricity charges. It is also clear from the evidence of DW1, the mother of the accused that she had purchased property bearing no. B-32 JJ colony, Shiv Vihar, Hastsal Uttam Nagar New Delhi on 22.12.2012 vide GPA and agreement to sell (Ex. DW1/A and DW1/ B respectively). She inducted the prosecutrix as a tenant on the first floor of the property on 07.06.2012 at the rent of Rs. 1700/- per month. With effect from March 2013, the prosecutrix stopped paying monthly rent and electricity bill to DW1.
80. When DW1 purchased the house in question on 22.12.2012, it is not possible that the prosecutrix was induced as a tenant in the year 2011. It appears that the prosecutrix has not deposed the true facts regarding her tenancy.
81. The prosecutrix has deposed that the accused had taken her three photographs, pasted them on a paper and taken her signatures saying that these were the documents for the Court marriage. However, nothing incriminating including such documents have been recovered from the possession or at the instance of the accused. Neither any Court papers nor any documents of marriage have been recovered by the prosecution.
Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 35 of 47 ::-
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82. It is saddening to note that when the prosecutrix, a married woman, even if separated from her husband, gets involved in an extra marital affair, she is projecting herself to be a victim and her paramour to be a culprit and guilty of raping her on a false promise of marriage when she herself cannot marry another man.
83. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable.
84. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecutrix is unreliable and unworthy of credence.
85. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part though her version may be otherwise, 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 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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 36 of 47 ::-
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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.
86. 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.
87. 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.
88. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376/420 and 313 of the IPC as the prosecutrix has made inconsistent statements due to which her 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 and the accused got Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 37 of 47 ::-
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her pregnancy aborted.
89. 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.
90. The prosecutrix is an adult. She is a working and is married lady with a son. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about his 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 or anyone else 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.
91. In fact what emerges from the evidence of the prosecutrix is that there appears to be an element of an extra marital affair between the prosecutrix and the accused since she has not taken a divorce (legal) from any Court and she herself was not in a position to marry anyone else and consequently the present rape case was lodged probably to save the embarrassment for herself.
Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 38 of 47 ::-
-:: 39 ::-
92. All the above facts and the ratio of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of rape on a false promise of marriage and abortion and the accused merits to be acquitted for the offence under sections 376/420 and 313 of the IPC.
DEFENCE OF THE ACCUSED
93. 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 by the prosecutrix. He has claimed that the prosecutrix wanted to grab the property of his mother and for this reason, she has implicated him in this false case. He has examined his mother as DW1.
94. 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 prosecutrix has deposed in her cross examination that after 2-3 months of their having physical relations, the accused stopped taking the rnet from her but she continued to pay the electricity charges. However, no such rent receipt or receipt of electricity charges or any other proof to substantiate her claim have been brought on the judicial record by the prosecution. These facts indicate that the defence of the accused is plausible that the prosecutrix wanted to grab the property of the mother of the prosecutrix who had asked her to vacate and then this case was lodged by the prosecutrix against the accused.
Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 39 of 47 ::-
-:: 40 ::-
95. However, 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.
96. It has already been discussed above that the evidence of prosecutrix is not reliable and is unworthy of credence. Therefore, the defence of the accused appears to be plausible.
MENS REA / MOTIVE
97. 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.
98. 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 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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 40 of 47 ::-
-:: 41 ::-
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.
99. 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 must be limited to and be governed by its own facts.
100. In the present case, a story has been projected that the accused has raped the prosecutrix on promise of marriage and thereafter he got her pregnancy aborted and this version appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that the Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 41 of 47 ::-
-:: 42 ::-
accused has committed the offence, as alleged by the prosecutrix.
101. There does not appear to be any criminal intention and mens rea on the part of the accused.
INVESTIGATION
102. The investigation conducted in the present case has been deposed by PWs 5, 8 and 9. The MLCs of the prosecutrix and the accused have been proved by PWs 2, 3, 6 and 7. The FIR has been proved by PW4. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
103. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case. The investigation appears to have been conducted fairly and properly.
104. 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.
105. 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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 42 of 47 ::-
-:: 43 ::-
logically in the negative as any lapse on the part of the investigation does not negate the offence.
106. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
107. Since the prosecutrix as PW1 is neither reliable nor believable as there are overwhelming inconsistencies, 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.
108. 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 by the accused on the pretext of marriage and abortion. 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.
109. 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 Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 43 of 47 ::-
-:: 44 ::-
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
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.
110. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Deen Dayal stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor when the alleged offence was committed. It also stands established that the prosecutrix was an already married lady and had not taken a legal divorce from her husband and she herself was not in a position to marry anyone else including the accused. It also stands established that the accused had not raped her on a false promise of marriage nor got her pregnancy aborted. 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 an incident ever took place.
111. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped by the accused on a false Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 44 of 47 ::-
-:: 45 ::-
promise of marriage and he got her pregnancy aborted.
112. 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.Deen Dayal.
113. Accordingly, Mr.Deen Dayal, the accused, is hereby acquitted of the charges for the offence punishable under sections 376/ 420 and 313 of the IPC.
114. 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.
115. It may also be mentioned here that with the changing times, the understanding of morality is also changing. A married woman with a son, during the subsistence of her marriage, gets involved in an extra marital affair and has physical relations with her paramour. To save herself from embarrassment of her extra marital affair being revealed or any other reason, she conveniently lodges a Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 45 of 47 ::-
-:: 46 ::-
criminal case of rape against her paramour claiming that he promised to marry her and had physical relations with her and then retracted from his promise and also got her pregnancy aborted. The worse happens when the children get to know about it. She needs to have guts to face her children who will not easily forgive their parents. This trend of extra marital affairs being converted into rape cases is being seen coming up as several such cases have been filed in the Court on similar allegations. When a lady herself is not in a capacity to marry another man during the subsistence of her marriage, then why should her paramour be prosecuted, incarcerated and be tried for rape when it is actually just an extra marital affair. This kind of unscrupulous litigation is required to be nipped in the bud itself.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
116. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
117. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
118. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
119. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room. Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 46 of 47 ::-
-:: 47 ::-
Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 07th day of April, 2014. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 137 of 2013.
Unique Case ID Number : 02401R0381452013.
FIR No. 254/13, Police Station Uttam Nagar, Under sections 376 /420 of the Indian Penal Code.
State versus Deen Dayal. -:: Page 47 of 47 ::-