Delhi District Court
State vs . 1. Neeraj Yadav, on 5 November, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 45/14.
Unique Case ID No. 02405R0113842014.
State Vs. 1. Neeraj Yadav,
S/o Sh. Kailash Chand Yadav,
R/o Village Kharkhadi Jatmal,
P.S. Jafarpur near Primary School,
Delhi.
2. Deepak,
S/o Sh. S.C. Sharma,
R/o E-83, Om Vihar Extn.,
Uttam Nagar,
Delhi.
Date of Institution : 01.5.2014.
FIR No. 287 dated 03.4.2014.
U/s. 376D/506/34 IPC.
P.S. Bindapur.
Date of reserving judgment/Order : 29.10.2014.
Date of pronouncement : 05.11.2014.
JUDGMENT
1. Accused Neeraj Yadav and Deepak have been facing trial for having committed the offence punishable u/s.376D/506/34 IPC.
2. As per the case of the prosecution, the two accused were running a motorcycle service centre at plot no.A-51, Sainik Nagar, Bindapur, Delhi. The accused had employed the husband of SC No.45/14. Page 1 of 17 the prosecutrix 'S' (real name withheld in order to conceal her identity) in their service centre. The prosecutrix alongwith her husband and two children were residing in a room built in the aforesaid plot of land. It is further alleged that on 17.3.2014 the day of Holi festival, at about 6 p.m. or 6.30 p.m. the two accused came to the room of the prosecutrix. At that time, her husband was sleeping in an inebriated state in the adjoining room and the children were playing outside. Accused Deepak pushed her and took her towards the bathroom. Accused Neeraj followed them. In the bathroom, accused Deepak palped and pressed her breast and inserted his finger into her vagina whereas accused Neeraj was standing outside. Thereafter Deepak came out and accused Neeraj pressed her neck forcibly and inserted his male organ into her mouth. He also pressed her breast with force and inserted his finger into her vagina. They did so with the prosecutrix twice. Then accused Neeraj pressed her throat and threatened her that if she narrated the incident to anybody they would kill her husband. The prosecutrix apprised her husband about the incident after about 2 or 3 days. Her husband suggested her to lodge an FIR but she did not have temerity to do so as accused are powerful persons.
3. It is further case of the prosecution that the prosecutrix appeared in the police station on 03.4.2014 and narrated the incident to the Duty Officer, who apprised the SHO about the same. Thereafter SI Nirmal Sharma reached the police station and recorded statement of the prosecutrix, on the basis of which she prepared a rukka and got the FIR registered. The prosecutrix was sent alongwith Const. Babita to DDU Hospital for medical examination. The concerned NGO was informed. Both the SC No.45/14. Page 2 of 17 accused were arrested. Regular steps were taken towards the investigation of the case, after completion of which Charge Sheet was prepared by the IO and submitted to the concerned Ld. M.M.
4. Upon committal of the case to the court of Sessions, Charges u/s.376D IPC and u/s.506/34 IPC were framed against both the accused on 15.7.2014. The accused denied the charges and accordingly trial was held.
5. At trial the prosecution examined 8 witnesses to bring home the guilt of the accused. The accused were examined u/s. 313 Cr.PC on 17.9.2014 wherein they denied the prosecution case and claimed false implication. They however admitted that they had been running a service centre in a plot of land bearing no.A-51, Sainik Nagar, Bindapur, New Delhi, and the prosecutrix's husband was working in their service centre . They also admitted that the prosecutrix alongwith her family has been residing in a room in the same plot of land.
6. The accused have examined Sh. H.K. Sharma, Manager, M/s. Khanna Automobiles as DW1, Sh. Ravir Nair, an employee of M/s. Khanna Automobiles as DW2 and a Record Room Clerk of BSES Rajdhani Power Limited, Janakpuri, as DW3.
7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
8. The prosecutrix has been examined as PW1. She deposed that on 17.3.2014 at about 6 p.m. or 6.30 p.m. she was SC No.45/14. Page 3 of 17 present alone in her room. It was festival of Holi on that day. Her husband was sleeping after consuming liquor in the adjacent room. Her children had gone out for playing. Both the accused came to her room and started throwing water over her from the service centre water pipe which they were holding in their hands. The water came upon her body with intense pressure. Thereafter they started misbehaving with her by pressing her breast and touching her inappropriately. Then Deepak pushed her and took her upto the bathroom. When she tried to open her mouth to raise alarm, they threw water with force into her mouth so that she could not raise alarm. Thereafter Deepak inserted his finger into her vagina. He then pressed her throat and made her to put his male organ in her mouth. Thereafter Neeraj also repeated the same acts with her. He also inserted his finger into her vagina, pressed her throat and put his male organ in her mouth. They repeated these acts twice with her turn by turn. Through a small open space in a wall of the bathroom, she saw a neighbour coming into the plot and she tried to call him but accused Neeraj gagged her mouth and did not permit her to raise her voice. She requested them to leave her as she was feeling suffocated. They told her that they would leave her only on one condition that she would oblige them sexually whenever they would ask her to do so. At that time, she agreed to what they had asked from her. Thereafter, they left and she returned to her room. They had also told her that she can never prove what they have done with her. They also told her that they would implicate her husband in a false criminal case or can also kill him.
9. She further deposed that she could not narrate the SC No.45/14. Page 4 of 17 incident to anybody for two or three days and apprised her husband about the incident after two days. She had an elaborate discussion with her husband about whether or not not to report the matter to police for the reason that the accused are affluent and influential people, however, ultimately they decided to lodge a complaint. She and her husband visited the police station on 02.4.2014 where her statement Ex.PW1/A was recorded then she was taken to DDU Hospital for medical examination. She was produced before Ld. M.M. in the court on 03.4.2014 who recorded her statement which she proved as Ex.PW1/B. She also deposed that on the same day i.e. 03.4.2014, accused Neeraj was arrested in her presence from the service centre vide arrest memo Ex.PW1/C. She had shown to the police officials the bathroom where she has been sexually assaulted by the accused and the site plan Ex.PW1/D was prepared in her presence.
10. In the cross examination, she admitted that the room adjacent to her room has been taken on rent by the accused and they have kept their goods and other belongings in that room. She denied that the room in which they are residing, has been provied to them by the accused as a consequence of employment of her husband in their service centre and stated that they have taken the room on rent directly from the plot owner Satish Sharma, to whom they are paying Rs.1,500/- per month as rent. She admitted that she has a washing machine in her room but denied that she had purchased the same to wash clothes of other persons and alos used to consume electricity free of costs. She admitted that there is no construction on the aforesaid plot of land except the two rooms and the service centre. She could not tell the length and SC No.45/14. Page 5 of 17 breadth of the plot of land. She denied that the bathroom shown at point A in the site plan Ex.PW1/D does not have any roof and any person from the neighbouring house can look inside the same from above. She deposed that the pressure of water released from the pipe held by the accused was so forceful that one could suffer bruises and other injuries on the body but she did not suffer any external injury. However, water had entered her ear cavity. She had not told the doctor, who conducted her medical examination, that she has some hearing problem on account of water having entered into her cavity. She deposed that she had become intensely enraged when she was being sexually assaulted by the accused and tried to push them away but could not succeed. She did not try to bite the male organ of the accused when they had put the same into her mouth as she had terrified and feared that they may kill her. She was confronted with her statement Ex.PW1/A wherein she had not stated that the accused had started throwing water upon her by the service centre pipe and water came upon her with intense speed or that when she tried to raise alarm, they threw water into her mouth with speed so that she could not raise alarm or that accused Deepak had pressed her throat and put his male organ into her mouth or that she had seen a neighbour coming into the plot through a hole in one of the walls of the bathroom and tried to call him or that she requested the accused to leave her, upon which they told her that they would leave her only on the condition that she would oblige them sexually whenever they would ask her for it and at that time she agreed to the same or that the accused told her that they would implicate her husband in a false criminal case. She was confronted with her statement u/s.164 Cr.PC Ex.PW1/B wherein she had not SC No.45/14. Page 6 of 17 mentioned that accused Deepak also sexually assaulted her.
11. The prosecutrix's husband Jagram has been examined as PW2. He deposed that he was working in the service centre run by the two accused in a plot bearing no.A-51, Sainik Nagar, Bindapur, New Delhi. He did not remember the date of incident and stated that it took place on the day of Holi this year. According to him it was perhaps the 17th day of the month. He deposed that his wife narrated the incident to him after about two or three days. She told him that both the accused came to their room on that day at about 6 p.m. or 6.30 p.m. Accused Deepak was having a service centre pipe in his hand and threw water upon her with force. Then they pushed her upto the bathroom where they pressed her throat and touched her private part. They also put their male organ in her mouth and inserted their fingers into her vagina. She further told him that they they threatened to kill her and her husband if she narrated the incident to anybody. He further deposed that they could not decide what to do as they were under the fear of the accused. He talked to Deepak, who told him that he cannot prove what they have done to his wife. He further deposed that his wife had obtained the telephone number of women helpline from somewhere and they made a call on that number and were told to lodge a complaint in the police station. They went to the police station after several days where the statement of his wife was recorded. He also stated that accused Neeraj was arrested in his presence from the same plot of land.
12. In the cross examination, he deposed that they used to get water in the centre for washing the vehicle in submersible SC No.45/14. Page 7 of 17 motor installed by the accused. He admitted that there was a brass nozzle at the tip of the pipe, by which water could be thrown at a specific point and the nozzle needs to be changed once in a year. He deposed that his family was occupying only one room in the premises of the accused. He admitted that he consumes liquor twice or thrice in a week and he was heavily drunk and was lying unconscious on the date of incident as it was the festival of Holi on that day. According to him, the width of the plot in which the service centre of the accused is located, is about 15 ft. and its total area is about 125 sq. yds. to 150 sq. yds. He could not tell its length. He stated that the pipe with which he used to wash the vehicle is about 8 ft. to 9 ft. and his room was at a distance of about 9 ft. to 10 ft. from the the point where the rubber pipe is attached to the underground pipe to get water. He deposed that he worked in the service centre on all days in the month of January, February, March, 2014 except a weekly holiday. He may have taken one or two days leave on account of some urgent work during these three months. He admitted that there is no bathroom adjacent to their room with proper sanitation fittings and a proper door. He further denied all the suggestions put to him.
13. PW5 is the Ld. M.M., who had recorded the statement u/s.164 Cr.PC of the prosecutrix which is Ex.PW1/B. She proved her certificate annexed with the said statement as Ex.PW5/A.
14. The IO SI Nirmal Sharma appearing as PW8 has deposed in her cross examination that there were two rooms and a toilet cum bathroom constructed on the plot of land. There was only one tap in the bathroom in which the incident had occurred SC No.45/14. Page 8 of 17 and the bathroom did not have any door. There were walls on three sides and one side was totally open. She deposed that there are residential houses on one side of the plot and an Ashram on the other side. According to her, anybody can see inside the bathroom while standing on the roof of his house or on the balcony.
15. Undoubtedly in a case of sexual assault upon a lady, the accused can be convicted on the sole basis of the testimony of the prosecutrix, if the court finds the same to be credible and reliable. The deposition of the prosecutrix should be free from embellishments and prevarications and her version should inspire the confidence of the court. In other words, the court should get satisfaction that the prosecutrix is a sterling witness. If for certain reasons, the court is not prepared to place implicit reliance upon the testimony of the prosecutrix, it should look for corroboration from other evidence on record. However, it needs to be kept in mind that like in all other criminal cases, in cases of sexual assault also, it is the duty of the prosecution to bring home the guilt of the accused beyond reasonable doubt and it is not for the accused to explain why the witnesses have lied against him.
16. In the instant case, the offence is stated to have happened on 17.3.2014 whereas the same has been reported to the police on 03.4.2014. Thus there is a delay of 17 days in lodging the complaint with the police. I am conscious that in cases of sexual assault, delay in registration of the FIR can be discounted provided that the prosecutrix gives a satisfactory explanation for the delay, depending upon the fact and circumstances of each SC No.45/14. Page 9 of 17 case. In the present case, the prosecutrix has deposed that after sexually assaulting her, the two accused told her that she can never prove what they have done with her and also told her that they would implicate her husband in a false criminal case or can also kill him. The Ld. APP submitted that it is because of this threat that there has been delay in reporting the incident to police and therefore the delay does not impact the prosecution case.
17. The prosecutrix in her statement u/s.164 Cr.PC Ex.PW1/B has stated that the accused had threatened her that they would kill her if she disclosed the incident to anybody, which threat is clearly distinct from the threat about which she has mentioned in her deposition, as stated herein-above. It is evident from the testimony of the prosecutrix and her husband that she apprised her husband about the incident after about 2 or 3 days. According to the prosecutrix, there was an elaborate discussion between her and her husband about whether or not to report the matter to the police as the accused are affluent and influential people but ultimately they decided to lodge a complaint. Prosecutrix's husband PW2 has deposed that after he heard about the incident from his wife he talked to accused Deepak who told him that he cannot prove what they have done with his wife. It is thus manifest that the prosecutrix and her husband were not under any threat from the accused. Had it been so, her husband would not have confronted accused Deepak about the incident. It is also natural that when he confronted accused Deepak about the incident, he would have threatened him not to narrate the incident to anybody and not to initiate any action against any him and Neeraj but evidently accused Deepak did not issue any threat to SC No.45/14. Page 10 of 17 prosecutrix's husband. He only told him that he cannot prove what they have done to his wife. Therefore the prosecutrix's husband was free to report the matter to police, but he kept silent and did not take any action for about two weeks. Meanwhile he continued to work in the service centre of the accused as he has deposed that he worked in the service centre on all days in the month of March, 2014 except weekly holidays. He has also deposed that his wife had obtained the telephone number of women helpline from somewhere and they made a call on that number and were told to lodge a complaint in the police station. However, he has not stated when was the said call made to women helpline number. What is intriguing is that why call was not made at telephone no.100.
18. Hence, in my opinion, the delay in reporting the incident to police has not been satisfactorily explained, which affects the credibility and trustworthiness of the prosecution case seriously. It does not appear that the prosecutrix and her husband were under any threat of pressure of the accused. It is quite manifest that they did not report the matter to police deliberately and suddenly reached the police station one fine day i.e. on 03.04.2014 with the complaint. It gives a slight indication that the incident reported to the police and described by the prosecutrix in her testimony is a fabricated one.
19. That apart the prosecutrix does not appear to be a sterling witness. She had made various improvements in her deposition before this court over her previous statements recorded during the course of investigation. She has not stated in her statement to the police Ex.PW1/A and in her statement u/s.164 SC No.45/14. Page 11 of 17 Cr.PC Ex.PW1/B that the accused had started throwing water upon her by service centre pipe with intense speed; that when she tried to raise alarm, they threw water into her mouth with speed so that she could not raise alarm; that she requested the accused to leave her, upon which they told her that they would leave her only on the condition that she would oblige them sexually whenever they would ask her for it and at that time she agreed to the same and that the accused told her that they would implicate her husband in a false criminal case. These are very major and material improvements and hence have an adverse impact upon the quality and reliability of the prosecutrix's testimony.
20. The assertion of the prosecutrix that the accused, upon reaching her room, starting throwing water over her from service centre pipe with intense speed does not appear to be true or atleast probable. Her husband has deposed that there is a brass nozzle at the tip of the pipe by which water could be thrown at a specific point. The speed with which the water comes out of the service centre pipe nozzle is not unknown to this court. The water comes out with tremendous speed. So, therefore, the room of the prosecutrix would have got filled up with water and all the goods in the room would have been floating in the water, when the accused had thrown water upon her by the service centre pipe. However, that has not happened. She did not receive any injury over her body, not even a bruise despite that water came upon her body with such intense speed. She doesn't even say that her clothes had got drenched in water. She has deposed that when she opened her mouth to raise alarm, they threw water with force into her mouth. It can't be believed. If, in fact, water is thrown into SC No.45/14. Page 12 of 17 one's mouth by a service centre pipe, he/she would choke, water may go down to the lungs and stomach, which may prove fatal also. She has not stated where did they keep the pipe when they were sexually assaulting her. From her deposition, it does not appear that they had switched off the water supply. Thus the whole premises would have been flooded by the water flowing through the pipe. However, it has not happened. Therefore, I find it difficult to believe the version of the prosecutrix.
21. Furthermore, the prosecutrix has described the incident differently in her statements recorded during the course of investigation and in her deposition before this court. In the statement Ex.PW1/A, she has stated that first accused Deepak pressed her breasts and inserted his finger into her vagina and thereafter accused Neeraj pressed her neck, inserted his male organ into her mouth and also inserted his finger into her vagina. In this statement, she does not mention that accused Deepak had also put his male organ into her mouth. In the statement u/s.164 Cr.PC Ex.PW1/B, she has stated that accused Deepak tried to put his male organ in her hands and gagged her mouth and was also soaking her with water from service centre pipe and then accused Neeraj inserted his finger into her vagina and put his male organ into her mouth. So in this statement, the only allegation against accused Deepak is that he tried to put his male organ into her hands and gagged her mouth. She does not say that accused Deepak also inserted his finger into her vagina and put his male organ into her mouth.
22. In her testimony before this court, she has deposed SC No.45/14. Page 13 of 17 that accused Deepak inserted his finger into her vagina, pressed her throat and made her to put his male organ into her mouth and thereafter accused Neeraj also repeated the same acts with her. He also inserted his finger into her vagina, pressed her throat and put his male organ into her mouth.
23. Thus there is no consistency in the statements of the prosecutrix regarding the manner in which she is stated to have been sexually assaulted by the two accused. This too indicates that her testimony cannot be relied upon and trusted. It would be against the well founded principles of criminal justice to base conviction upon the aforenoted deposition of the prosecutrix.
24. As per the testimony of the prosecutrix, both the accused forcibly put their male organs into her mouth. She has deposed that she became enraged at that time. However, she does not appear to have shown any resistance or any sign of anger. She could have kept her mouth shut and prevented them from doing so. There is no evidence to that effect. It is also not the case of prosecution that the accused had threatened her to take their male organs into her mouth. She even did not try to bite the male organ of any of the accused. Her contention that she did not do so as she feared that they would kill her is only an after thought as admittedly, the accused had not beaten her or issued threats to her either before doing these acts or during the commission of these acts.
25. Even otherwise also, the testimony of the prosecutrix does not inspire any confidence and the version of the incident SC No.45/14. Page 14 of 17 given by her patently seems to be improbable. She has deposed that at the time when the two accused came to her room, she was present alone inside the room as her husband was lying in drunken condition in the adjacent room and her children had gone out to play. She has stated that the accused pushed her towards the bathroom adjacent to their room and sexually assaulted her there. Though she has denied that the said bathroom, which is shown at point A in the site plan Ex.PW1/D, does not have any roof yet her husband (PW2) admitted in his cross examination that the bathroom adjacent to their room is without any proper sanitary fittings and a proper door. IO (PW8) has deposed in her cross examination that there was only one tap in the bathroom, in which the incident had occurred and the bathroom did not have any door. There were walls on three sides and one side was totally open and she also deposed that anybody can see inside the bathroom while standing on the roof or on the balcony of the adjacent house. She deposed that there are residential houses on one side of the plot and an Ashram on the other side.
26. Therefore if the two accused had in fact come to the room of the prosecutrix with intention to sexually assault her, it was easy and convenient for them to commit the act inside the room after bolting the door of the room from inside. It does not appeal to reason that they would take the prosecutrix to the bathroom for this purpose, which had no door at all and anybody could have spotted them. It is a natural conduct of a person to commit sexual act either in a closed room or at a place not exposed to public gaze. It cannot be believed that the accused would act with such stupidity that they would commit sexual SC No.45/14. Page 15 of 17 assault upon the prosecutrix, not inside her room where she was present alone but inside an open bathroom.
27. It also seems to be very intriguing and curious that the two accused only inserted their fingers into vagina of the prosecutrix and put their male organs into her mouth one by one. What did they get by doing this. They didn't disrobe her and did not have proper sexual intercourse with her. If they had come to prosecutrix's room to satiate their sexual lust upon her, they would have subjected her to usual sexual intercourse. Nothing prevented them from doing so. There is also no evidence that they compelled the prosecutrix to give them oral sex to the point of their ejaculation. This court finds it absolutely unusual that the accused would have left her after only inserting their fingers into her vagina and by putting their male organs into her mouth.
28. The aforenoted discrepancies in the evidence lead by the prosecutrix show that the defence taken by the accused that the prosecutrix and her husband have implicated them falsely in this case as they had asked them (prosecutrix and her husband) to vacate the room, is true and probable.
29. The discussion leads to the conclusion that the prosecution has failed to lead any credible or trustworthy evidence to prove its case. The evidence lead by it is neither reliable nor inspires any confidence. The testimony of material witnesses like the prosecutrix and her husband is replete with embellishments and prevarications. They delay in lodging the FIR has not been explained satisfactorily. The defence taken by the accused seems SC No.45/14. Page 16 of 17 to be true and probable.
30. Therefore, both the accused are liable to be acquitted and are hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 05.11.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.45/14. Page 17 of 17