Delhi District Court
State vs Pramod Yadav on 21 April, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. : 2468/16
FIR No. : 255/15
PS : Lodhi Colony
U/s : 328/376(2)(n) IPC
State Versus Pramod Yadav
Sh. Lal Bahadur Yadav,
R/o C2/118, New Ashok
Nagar, Delhi.
Date of Institution : 04.01.2016.
Judgment reserved for orders on : 18.04.2018.
Date of pronouncement : 21.04.2018.
J U D G M E N T
Brief facts of the case:
1.The case of the prosecution is that on 21.07.2015 complainant 'M' ( name withheld to keep her identity confidential) came to police station Lodhi Colony and gave her statement that she is residing as tenant. She knew accused for the last about 5 years who was earlier residing in Jhuggi of Meharchand Market against whom on 20.06.2014 she had got registered a rape case in PS Lodhi Colony and the same is pending trial. On 19.07.2015 accused called her on her mobile phone number 9654557837 from mobile number 9818092682 SC No. 2468/16 State Vs Pramod Yadav Page No. 1 of 33 and called her near New Ashok Nagar to discuss about the case. She went in Metro to meet accused and between the track of New Ashok Nagar Metro and Sector 15 Metro Station they talked for 1015 minutes. He then went from there and she then called on his mobile on which he told her that he is coming. After around 1015 minutes Pramod brought Pepsi bottle and Potato chips. Bottle was half empty. He made her drink cold drink and after consuming cold drink she felt giddiness. He then took her to nearby jungle and committed wrong act with her and torn her clothes. She was in little bit of senses at that time and aftersome time she became unconscious. When she woke up she found herself in Safdarjung Hospital. During investigation, site plan was prepared and some broken pieces of bangles of prosecutrix were collected from the spot and were taken into possesion by the police. Spot was got photographed by the police. CDRs of victim phone number 9654557837 and number 9818092682 used by accused were collected by the police. During investigation, phone number 9654557837 was found in the name of Salma and phone number 9818092682 was found to be in the name of father of accused namely Lal Bahadur Yadav. On 19.07.2015 call from accused phone number 9818092682 to victim phone number 9654557837 was not found but as per site address location of victim's phone number and accused phone number was collected. CCTV footage of victim's travelling dated 19.07.2015 was tried to be collected from CISF office and Chief SC No. 2468/16 State Vs Pramod Yadav Page No. 2 of 33 Security Commissioner, Metro Station of Barakhamba Road, New Delhi but reply was received mentioning that they have only seven days storage capacity and thereafter CCTV footage are automatically deleted from server.
2. On 24.08.2015 victim filed a complaint No. 31W/LC in PS Lodhi Colony that between 18.08.2015 and 19.08.2015 she received phone call on phone number 7838363094 and 9643221847 from accused phone number 9818092682. CDR was also collected and after investigation it was found that accused had called the prosecutrix on phone number 9643221847. Call made by accused on victim's phone number 7838363094 was not found.
3. On 19.08.2015 accused Pramod Yadav was granted anticipatory bail. On 24.08.2015 accused was formally arrested. Accused was medically examined from AIIMS Hospital. Exhibits( Blood and Gauge) were taken into possession by the police. Exhibits of victim and accused were sent to CFSL (CBI) CGO Complex, Lodhi Road for examination. After completion of investigation, chargesheet was filed in the court under Section 376/328 IPC against the accused. CHARGE :
4. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 07.01.2016, prima facie case was made out against the accused for the offence u/s 328/376(2)(n) IPC. The charge was framed to which SC No. 2468/16 State Vs Pramod Yadav Page No. 3 of 33 accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
5. To substantiate its allegations against the accused, prosecution examined the following witnesses: Material Witnesses:
6. PW1 had deposed that she is the resident of village & Post office Ramchand Pur, PS Baduria, District Uttar 24 Pargana, West Bengal. She knew the accused, present in the Court today for last about 7 years from today. In the year 2015, accused used to reside in Lodhi Colony, in jhuggis Mehar Chand Market. Previously also she had lodged a similar case against the accused in the year 2014 in PS Lodhi Colony. Since 18th July accused has been troubling her and asking her to meet him regarding the previous case. On 19.07.2015, she agreed to meet the accused. Accused asked her to get down at Noida Metro Station. From there, she walked towards New Ashok Nagar and she sat somewhere in between Ashok Nagar and Noida. Accused called her on the mobile number of her son number she do not remember from his mobile number, number she do not remember. He asked her to wait there saying that he was coming. The accused came there after half an hour. He was having with him potato chips and soft drink. He gave her the same. She started feeling giddy. The accused took her towards Ganda Nala where he beat her. Since she was intoxicated, she does not know if the accused did wrong with her or not. When she SC No. 2468/16 State Vs Pramod Yadav Page No. 4 of 33 regained consciousness, she found herself at Safdarjung hospital. She came to know from there that she was brought in the hospital by a lady who was with a boy. They took her to her house. She then went to the police station. The police made inquiry from her. Since she could not muster courage she did not tell the police the incident. On the next day, she again went to the police station and gave her statement Ex.PW1/A. She started living in her house. She was also brought in the Court for her statement where she gave her statement. She has correctly identified her statement u/s. 164 Cr.P.C Ex.PW1/B (running into 5 pages) on record. She deposed that she was discharged and sent to her home. She had shown the police the place of incident and at her instance, site plan Ex.PW1/C was prepared. The accused used to beat her number of times. She belong to a very poor family. She used to beg in her village with her child. The accused had met her in her jhuggi. She used to leave her son in the jhuggi and go for work. The accused used to love her son. Through her son, she had met the accused. He started living in her house. He also put mangal sutra on her and vermilion on her parting. He lived with her for five years. He used to live with her as husband and wife and during their relations, he made physical relations with her. The father of the accused got engaged the accused with some other girl. The accused then took her to his native village on the pretext that they would earn and live there. The father of the accused then called him from the SC No. 2468/16 State Vs Pramod Yadav Page No. 5 of 33 village. She also came with him with her son. At the place near Diwan Chand School, Lodhi Road, the accused asked her to sign some papers but she refused. She came to her house with her son. His parents took the accused with them. His mother used to go in the police station and complaint against her that I took her son (accused) with me to Kolkata. She was called by the police at the police station where she was scolded. She explained everything to the police. The police then called the father of the accused. The police scolded the father of the accused. The father of the accused then brought the accused in the police station where the accused admitted to have married and lived with her. The accused thereafter said that he did not marry her but he lived with her. The police then registered the case against the accused u/s 376 IPC. The accused used to quarrel with her. The accused used to tell the people that she got the accused falsely implicated in the case u/s 376 IPC. The accused used to come to her house and beat her. She had a relation with him as the wife of the accused but the accused did not recognize her relation / marriage. She came to know that the accused has married with some other girl about 6 - 7 months before. His wife used to telephone and abuse her. She lodged the report of the beating given by the accused about one month from today. She was examined in the hospital. She had brought the record of the same Ex.PW1/D. The accused states that he has received the order from the Court to marry with some other girl. The accused has played with her SC No. 2468/16 State Vs Pramod Yadav Page No. 6 of 33 life and also spoiled her life. The accused also misappropriated her earnings. She was asked in the court what does she mean by 'wrong' what the accused did with her when she was taken to Ganda Nala and she replied 'Wrong' means rape. She deposed that the police after registration of the case recovered the pieces of bangles and prepared seizure memo which is Ex.PW1/E. The police also got the spot photographed. The positives of the photographs are Mark A1 to Mark A5. She had also pointed out the place of incident which is Ex.PW1/F. She has duly proved on record Ex.P1. Since she was unconscious, she did not tell anything to the doctor when she was examined at Safdarjung hospital. Witness was cross examined by Ld. Addl. PP as she was not disclosing the complete facts. She deposed that after taking Pepsi after about 10 minutes she started feeling giddy. She stated that accused took her to jungle behind New Ashok Nagar Metro Station. She had told the police the number of accused which is 9818092682. She stated that she cannot say if she had stated to the doctor about what had happened with her. She has correctly identified her signatures on MLC Ex.PW1/G. She stated that she does not remember whether she had told anything to the doctor. She denied the suggestion that she does not remember portion A to A of the MLC. Formal Witnesses:
7. PW2 Ms. Sharmila Sharma had deposed that on 21.07.2015, she was called at the police station Lodhi Colony to counsel the SC No. 2468/16 State Vs Pramod Yadav Page No. 7 of 33 prosecutrix. She counseled her and gave her report Ex.PW2/A.
8. PW3 ASI Ram Singh had deposed that on 21.07.2015 he was posted as HC at PS Lodhi Colony and was working as Duty Officer. His duty hours were from 4.00pm to 12.00 midnight. On that day at about 5.35pm, SI Jagroshni gave him a rukka on the basis of which, he registered the FIR through computer, computer generated copy is Ex.PW3/A. He also endorsed the rukka vide Ex.PW3/B. After registration of FIR, copy of FIR and rukka in original were handed over to Ct. Rohtas for being given to SI Jagroshni. Certificate under section 65B of Indian Evidence Act is Ex.PW3/C.
9. PW4 W/Ct. Nutan had deposed that on 21.07.2015 she was on emergency duty from 8.00pm to 8.00am. On the directions of the SHO, she reached Safdarjung Hospital, where IO SI Jagroshni and the prosecutrix met her. She got the prosecutrix medically examined. The examining Doctor handed over to her some sealed exhibits of the prosecutrix with sample seal, which she further handed over to the IO. IO seized the same vide memo Ex.PW4/A and recorded her statement.
10. PW5 Smt. Farida has deposed that the prosecutrix has been living in her neighbour. She do not remember the exact date but it was in July 2015. At about 8:30 p.m., she returned to her house after her work. After sometime, her mother told her that the prosecutrix was lying near Banyan Tree School. She went there. She saw the prosecutrix was lying unconscious there. She asked some public SC No. 2468/16 State Vs Pramod Yadav Page No. 8 of 33 persons to help the prosecutrix and take her to the hospital but no one came forward. She called at 100 number from her mobile phone 9650976055. Police came at the spot and took the prosecutrix to Safdarjung hospital. She accompanied her to the hospital. Next day at about 4 - 4:30 a.m., she regained consciousness. The prosecutrix came to her house with her from the hospital since she had to go for her work. The prosecutrix told her that she had gone to meet the accused Pramod and he gave her cold drink laced with sedative and that after taking the cold drink she became unconscious. She know the accused since he lives in the same locality. After registration of the case, police called her in the police station and recorded her statement. During examination, as prayed by Ld. Addl. PP was permitted to put leading questions to the witness as prosecutrix was not disclosing the complete facts. Witness depsoed that the prosecutrix also told her that when she became unconscious, then the accused Pramod committed rape upon her or that he made her sit in an auto and left her at Meharchand Market. She deposed that it was 19.07.2015 when she made a call at 100.
11. PW6 Sh. Ajay Kumar, Nodal Officer with Bharti Airtel had deposed that he has been working as Nodal Officer with Bharti Airtel since 2007. Today, he had brought the CDR Ex.PW6/A of mobile phone number 9818092682 for the period from 16.07.2015 to 30.07.2015, the print out of the same was generated by him. The SC No. 2468/16 State Vs Pramod Yadav Page No. 9 of 33 Customer Application Form of the said mobile phone number is registered in the name of Sh. L.B. Yadav S/o Sh. R.K. Yadav. Copy of the customer application form with ID proof is Ex.PW6/B. The CDR Ex.PW6/A has been generated from the computer of the company which is under his control and regularly used by him and same are not tampered in any manner. The certificate u/s 65B Evidence Act in this regard is Ex.PW6/C. He has also seen the CDR of the aforesaid mobile phone, copy of Customer Application Form, cell ID chart and certificate u/s 65B of Evidence Act, already placed on record provided by Sh. Surender Kumar, the Nodal Officer of Bharti Airtel Ltd. The copy of CDR is Ex.PW6/D, copy of Customer Application Form is Ex.PW6/E, Cell ID chart Ex.PW6/F and the copy of certificate u/s 65B of Evidence Act is Ex.PW6/G. He can identify his signature as he has seen him writing and signing the documents during usual course of his duties. He also brought the relevant cell ID chart which is Ex.PW6/H.
12. PW7 Saurabh Aggarwal, Nodal Officer with Vodafone had deposed that he has been working as Nodal Officer with Vodafone Mobile Services Ltd. since July 2016. I have brought the CDR of mobile phone number 9654557837 for the period from 10.07.2015 to 31.07.2015, the print out of the same was generated by me. The CDR is Ex.PW7/A. The Customer Application Form of the said mobile phone number is registered in the name of prosecutrix. Copy of the SC No. 2468/16 State Vs Pramod Yadav Page No. 10 of 33 customer application form with ID proof is Ex.PW7/B. The CDR Ex.PW7/A has been generated from the computer of the company which is under his control and regularly used by him and same are not tampered in any manner. The certificate u/s 65B Evidence Act in this regard is Ex.PW7/C. He has also seen the CDR of the aforesaid mobile phone, copy of Customer Application Form, cell ID chart and certificate u/s 65B of Evidence Act, already placed on record provided by Sh. Dinesh, the Nodal Officer of Vodafone. The copy of CDR is Ex.PW7/D, copy of Customer Application Form is Ex.PW7/E, Cell ID chart Ex.PW7/F and the copy of certificate u/s 65B of Evidence Act is Ex.PW7/G. He has also brought the relevant cell ID chart which is Ex.PW7/H. He has also seen the copy of customer application form Ex.PW7/I. CDR of mobile phone no. 7838363094 Ex.PW7/J. Certificate u/s 65B of the Indian Evidence Act Ex.PW7/K. Customer application form of 9643221847 in the name of the prosecutrix Ex.PW7/L. The CDR of mobile no. 9643221847 is Ex.PW7/M and certificate u/s 65B of the Indian Evidence Act Ex.PW7/N. The same were given to the police by Dinesh which bear the seal of the company and his signature at point A. He deposed that he can identify his signature as he had seen him writing and signing the documents during usual course of his duties.
13. PW8 Ms. Archana Beniwal, Ld. MM had deposed that on 22.07.2015, she was posted as MM at Saket Courts, New Delhi. On SC No. 2468/16 State Vs Pramod Yadav Page No. 11 of 33 that day, the application Ex. PW8/A for recording the statement of prosecutrix under section 164 Cr P C was assigned to her by Ld. Link MM. On the same day, she recorded the statement of prosecutrix Ex.PW1/B. Prosecutrix had also appended her signature at points A on the said statement. Before recording the said statement of the prosecutrix, she had put certain questions to her to ascertain her voluntariness to make the said statement. The said statement contains true accounts of the statement made by the prosecutrix. She had also appended the certificate to this effect at point C to C on the statement Ex. PW 1/B. After recording the said statement, copy of the statement was supplied to the IO on her request vide application Ex.PW8/A. Ahlmad was directed to send the proceedings in a sealed envelope to the concerned Court.
14. PW9 Ct. Sunil Kumar had deposed that on 24.07.2015, she was posted as constable at PS Lodhi Colony. On that day, she along with IO and the prosecutrix reached at the spot i.e. vacant land behind New Ashok Nagar Metro Station. IO prepared the site plan at the instance of prosecutrix. On the directions of the IO, she took the photographs of the spot. IO also collected pieces of some broken bangles at the instance of prosecutrix and seized the same vide Ex. PW1/E. The photographs are marked as Mark A1 to A5. The pieces of broken bangles have already been exhibited as Ex. P1.
15. PW11 Ct. Prem Chand had deposed that on 27.08.2015, he was SC No. 2468/16 State Vs Pramod Yadav Page No. 12 of 33 posted as Constable at PS Lodhi Colony. On that day, on the directions of the IO he took some seal exhibits with some documents from the Malkhana and deposited the same in CFSL, CGO Complex, Lodhi Colony, New Delhi vide RC No. 51/21/15. After depositing the exhibits in CFSL, he returned to police station and handed over the copy of receipt to the MHC(M). So long as the exhibits remained in his custody, the same were not tampered with in any manner. IO recorded his statement.
16. PW12 Ct. Pawan had deposed that on 24.08.2015, the accused present in the court today had come in the police station. He was arrested vide arrest memo Ex. PW 12/A. He took the accused to AIIMS for getting him medically examined. He was examined vide MLC Ex. AW 1/A. The doctor gave him the sealed exhibits alongwith the sample seal which he handed over to the IO vide memo Ex. PW 12/B. So long the exhibits remained with him, their seals were intact and no one tampered it.
17. PW13 SI Jag Roshni had deposed that on 21.07.2015, she was posted as SI at PS Lodhi Colony. On that day, the prosecutrix came at police station. She recorded her statement Ex.PW1/A She was given counseling. She prepared the rukka Ex.PW13/A and got the FIR registered. The prosecutrix was sent to Safdarjung hospital with W/Ct. Nutan for her medical examination where she was medically examined vide MLC Ex.PW1/G. The examining doctor handed over SC No. 2468/16 State Vs Pramod Yadav Page No. 13 of 33 the sealed exhibits of the prosecutrix with sample seal and her MLC. She seized the exhibits vide Seizure memo Ex.PW4/A. The exhibits were deposited in the malkhana. She recorded the statement of witnesses. On the next day, the statement of the prosecutrix was recorded by the Magistrate on her application Ex.PW8/A. She received the copy of the statement. She searched for the accused but he could not be found. On 24.07.2015, she reached at the spot i.e. jungle vacant land, behind New Ashok Nagar Metro Station, New Delhi with the prosecutrix. Prosecutrix pointed out the place of incident vide memo Ex.PW1/F. Some pieces of broken bangles were lying at the spot. Prosecutrix identified the pieces of bangles as belonging to her. She seized the broken pieces of bangles vide seizure memo Ex.PW1/E. Ct. Sunil took the photographs of the spot Mark A1 to Mark A5. She prepared the site plan at the instance of the prosecutrix which is Ex.PW1/C. She tried to collect CCTV footage but the same could not be collected since the incident was more than 7 days old. She collected the CDRs. She analyzed the CDR. The number given in the complaint by the prosecutrix was not used by the prosecutrix. The prosecutrix provided two more numbers out of which one number was reflected in CDR. The accused Pramod Yadav, present in the Court today, was on anticipatory bail. He was formally arrested vide arrest memo Ex.PW12/A. The accused was sent to AIIMS with Ct. Pawan for his medical examination where he was SC No. 2468/16 State Vs Pramod Yadav Page No. 14 of 33 medically examined vide MLC Ex.AW1/A qua his potency test. The examining doctor gave one sealed exhibit of the accused with sample seal which was seized vide seizure memo Ex.PW12/B. She collected the PCR form Mark PW13/X. During investigation, SI Ashwini handed over her the statement of the prosecutrix Ex.PW1/DA and Ex.PW10/A. She had sent the exhibits to CFSL, Lodhi Colony through Ct. Prem Chand for expert opinion. She recorded the statement of witnesses. She completed the investigation, prepared the chargesheet and filed the same in Court. She collected the FSL result qua biological examination and DNA examination Ex.PW13/A (running into two sheets) and filed the same in Court. She can identify the pieces of broken bangles if shown to me. She correctly identified them as Ex.P1.
18. PW14 SI Yashvir Kumar had deposed that on 19.07.2015, he was posted as SI at PS Lodhi Colony. On that day, He was on an emergency duty from 8.00 p.m to 8.00 a.m. On that day, a call was received vide DD No. 26A that a lady is lying unconscious, which was assigned to him for necessary action. The copy of DD no. 26A is Ex. PW14/A. He along with W/Ct. Sunita reached the spot i.e. Meharchand market, Harijan Basti, New Delhi. He came to know that the said lady had already been removed to the Safdarjung hospital by the PCR. He and W/Ct. Sunita reached Safdarjung hospital. The prosecutrix was found admitted in the hospital and she was under
SC No. 2468/16 State Vs Pramod Yadav Page No. 15 of 33 treatment. One lady who was the neighbour of the prosecutrix met him in the hospital. The doctor opined the prosecutrix to be unfit for statement. The doctor advised her to refer in Ward No.A but she was not ready to shift in the ward and was willing to go to her house. They returned to police station. On the same day, he again went to Safdarjung hospital to record the statement of the prosecutrix. The prosecutrix was not present in the hospital. The doctor mentioned the said fact in her MLC. He collected the MLC of prosecutrix. He again went to the spot. The prosecutrix met him there. She told him that she is not in a fit state of mind and will give her statement later. Thereafter, he returned back to the police station. The prosecutrix came to the police station. He recorded her statement Ex. PW1/DA.
19. PW16 HC Shishpal had deposed that on 210715 he was posted as Head Constable at Police Station Lodhi Colony and was working as MHC(M). On that day, W/SI Jagroshni deposited some sealed exhibits with sample seal in the malkhana. He made an entry in register no. 19 vide serial no. 838. Copy of the same is Ex.PW16/A (OSR). On 24.07.15 W/SI Jagroshni deposited some sealed exhibits with sample seal in the malkhana. He made an entry in register no. 19 vide serial no. 842. Copy of the same is Ex.PW16/B (OSR). On 24.08.15 W/SI Jagroshni deposited some sealed exhibits with sample seal in the malkhana he made an entry in register no. 19 vide serial no. 860. Copy of the same is Ex.PW16/C (OSR). On 27.08.15 the exhibits were sent SC No. 2468/16 State Vs Pramod Yadav Page No. 16 of 33 to CFSL, Lodhi Road, CGO Complex, New Delhi through Ct. Prem Chand vide RC no.51/21/2015. The copy of RC Ex. PW16/D (OSR). So long as the exhibits remained in my custody, the same was not tempered in any manner.
Medical Witnesses:
20. PW10 Dr. Bhoomika Gupta had deposed that on 20.07.2015, at 12.00 a.m, the prosecutrix aged 40 years was brought by Ct. Yogender. She was found unconscious. There was frothing from her mouth. After examination, she responded to verbal command poorly. There was stiffness in her body and clinching of teeth. She suspected it a case of seizure or unknown poisoning. At 2.25 a.m, she was declared unfit for statement. She advised her treatment. The MLC Ex. PW 10/A is in her hand and also bears the thumb impression of the prosecutrix at Point B. They referred the prosecutrix to Medical and Gynae department. She had been deputed by the Director to depose for Dr Deepika, Senior Resident Gynae, Safdarjung Hospital. She has left the services of the hospital. She had worked with Dr. Deepika. She can identify her signatures and handwriting as she had seen her signing and writing during course of her duties with her. She had seen the MLC of the prosecutrix Ex.PW1/G. As per the MLC, on 20.07.2015, at 8.50 p.m, she was brought by W/Ct. Nutan. She was examined on 21.07.2015 with the alleged history of sexual assault by a person named Parmod with whom she married about five years ago.
SC No. 2468/16 State Vs Pramod Yadav Page No. 17 of 33 The prosecutrix gave the history of incident which is recorded at Point B to B. As per the MLC, there were multiple bruises over right upper arm, small multiple bruises over right elbow and small 2 X 2 cms bruise over left elbow and bruise over right thigh. She was advised medicines and treatment. The samples of in between fingers, combing of pubic hair, clipping of pubic hair, vaginal secretion, cervical mucus collection, culture, washing from vagina, nail scrappings, blood sample and urine and oxalate blood vial were collected, preserved, sealed and were handed over to the police alongwith the sample seal. The MLC Ex. PW1/G is in the hand of Dr. Deepika. She had identified her signatures at Point C and also her handwriting.
21. PW15 Dr. B.K. Mohapatra, SSOI, CFSL, Lodhi Road had deposed that on 27.08.2015 he was posted as above. On that day two sealed parcels were received in their office. The same were assigned to him for examination. The seals on the parcels were intact and tallied with sample seal. He desealed the parcels before examination and carried out examination of exhibits as per the query. The details of descriptions of the parcels and the exhibits are mentioned in his report bearing no. CFSL2015/B1228 dated 08.04.2016. He submitted his report which is running into two pages and bears his signature alongwith rubber stamp at point A which is already Ex.PW13/A. The findings of his examination in briefly be described as below: SC No. 2468/16 State Vs Pramod Yadav Page No. 18 of 33
1. Semen was detected on the exhibits 1e & 1f.
2. DNA Profile generated from the male fraction DNA obtained from the source of exhibits 1e(Cervical Swab) and 1f(vaginal swab & smear) was found to be consistent with the DNA profile of the accused (Source of exhibts2: Blood stained gauze). Statement of accused and Defence taken by accused:
22. Statement of accused was recorded under Section 313 Cr.P.C wherein accused deposed that prosecutrix herself has made a false complaint against him. He did not commit any offence and it is a planted case on him at the instance of prosecutrix. He was not involved in the incident and that earlier he and prosecutrix have relations and their relations were always consensual. He had never put vermilion on her parting nor put Mangalsutra on her. It is stated that she gave the false statement to the IO. She had given statement Ex.PW1/DA wherein she had stated that "I did not commit any wrong with her" to PW14. She has given false history to doctor and to the Magistrate and the samples are manipulated and deposited in connivance with prosecutrix. The DNA report is false and the samples were tampered with before sending to the CFSL. He stated that mobile phone number belongs to her father and he is illiterate and when some missed call came on his phone, he redialed it to know the dialer, may be the above said call would be done in same manner but he did not make any call to the prosecutrix. Accused had stated that he is married SC No. 2468/16 State Vs Pramod Yadav Page No. 19 of 33 and prosecutrix had concocted the false story of rape to mount pressure upon him to marry her as she wanted to marry him. Prosecutrix is habitual in making complaint against him to pressurize him to marry her and she had previously registered a false FIR No. 185/14, U/s 417/376 IPC, PS Lodhi Colony against him in which he was acquitted by the Court. Accused in his defence had produced no witness therefore Defence Evidence was closed. Arguments of Ld. Addl. PP for State:
23. It is argued by the Ld. Addl. PP that the case of the prosecution stands proved from the testimony of the prosecutrix. There is no suggestion given by the accused to the prosecutrix with regard to the FSL result. The accused has taken the defence in his statement recorded under Section 313 Cr.P.C that he used to live with the prosecutrix in livein relationship but so far as this incident is concerned no suggestion is put by him to the prosecutrix that the relation was consensual even on the day of incident. It is stated that from the testimony of the prosecutrix as well as from the medical evidence and other evidence the case stand proved. Arguments of the Ld. Counsel for accused:
24. It is argued by the Ld. Counsel for accused that the prosecutrix is in habit of levelling false allegations against the accused. On earlier occasions also she has levelled allegations of rape against the accused and in the said case bearing FIR No. 185/14, PS Lodhi Colony, Under SC No. 2468/16 State Vs Pramod Yadav Page No. 20 of 33 Section 376 IPC, the Court has acquitted the accused holding that it was a case of livein relationship. It is stated that the prosecutrix had given statement to the earlier IO PW14 wherein she has stated that nothing wrong had happened with her. The said statement is Ex.PW1/D and duly proved by the IO. No plausible explanation is given by the prosecutrix as to why she has made the said statement to the IO. PW5 Farida is hostile. As per statement of this witness it shows that prosecutrix used to say to her that she is married to the accused though in fact no marriage had taken place between the prosecutrix and the accused and this type of statement made by the prosecutrix to her neighbours shows that she was very desperate to perform marriage with the accused and when he refused she falsely implicated the accused in this case. As per the prosecution case, prosecutrix was taken to the hospital by PW5 along with a boy but no enquiry with regard to said boy was made by the police. The accused has no knowledge about the FSL. The same seems to be planted. Moreover, there was no forcible sexual intercourse with the prosecutrix and the testimony is not reliable. Hence, it is prayed that the accused be acquitted.
Conclusion:
25. I have heard the arguments of Ld. Addl. PP for the State and Ld. Defence Counsel and perused the record.
26. Before appreciating the facts of this case, it is necessary to SC No. 2468/16 State Vs Pramod Yadav Page No. 21 of 33 know the ingredients of the offence of rape by resorting to the provisions of section 375 IPC. Section 375 IPC provides as under: "375. Rape. A man is said to commit "rape" if he
(a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : First. against her will.
Secondly. Without her consent Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is SC No. 2468/16 State Vs Pramod Yadav Page No. 22 of 33 under eighteen years of age.
Seventhly. When she is unable to communicate consent.
Explanation 1. For the purpose of this section, "vagina" shall also include labina majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
27. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced upon a woman against her will. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Lett. 130b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section SC No. 2468/16 State Vs Pramod Yadav Page No. 23 of 33 requires the following essentials"
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
28. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
29. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
30. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word ' SC No. 2468/16 State Vs Pramod Yadav Page No. 24 of 33 consent' and 'submissions' as shown below: "(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be " consent" as understood in law.
(2) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
(4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to; it always is a voluntary and conscious acceptance of what is SC No. 2468/16 State Vs Pramod Yadav Page No. 25 of 33 proposed to be done by another and concurred in by the former."
31. To prove the case, prosecutrix is the most material witness. In her statement before the court she had deposed on the lines of the prosecution story that accused called her to meet him regarding previous case filed by her against accused and on his insistence, she went to meet him on 19.07.2018 where he gave chips and coke to her, whereafter she felt giddiness, then he took her to Ganda Naala and beaten her. She stated that she did not know if he committed sexual intercourse with her or not as she fell unconscious and when she regained consciousness, she was in Safdarjung Hospital.
32. So far as the making of physical relations is concerned, the accused had stated that they were living in livein relationship and their relations were always consensual. The accused is silent with regard to the making of relations with the prosecutrix on 19.07.2015. But it is settled law that the onus to prove its case is always on the prosecution.
33. In the case of Narender Kumar vs State (2012) 7 SCC 171 it was held that: "Even in a case of rape, onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The Prosecution case has to stand on its own leg and cannot take support from the weakness of the case of the defence. However, the great the suspicion against the accused SC No. 2468/16 State Vs Pramod Yadav Page No. 26 of 33 and however, strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence".
34. So far as the making of physical relations between the prosecutrix and the accused are concerned, the prosecutrix in her statement before the court has not deposed in specific terms that the relations were in fact made by the accused on the alleged date with her as she fell unconscious. The incident had happened near Ganda Naala in the jungle behind New Ashok Nagar Metro Station but the prosecutrix was found unconscious by PW Fareeda near her house. Though the prosecutrix could not specifically depose about the making of relations stating that she fell unconscious but the MLC of the prosecutrix duly proved by the concerned doctor coupled with FSL result proves beyond doubt that the physical relations were made between the prosecutrix and the accused on that day. MLC also shows that several injuries on the person of prosecutrix.
35. The DNA profile of the prosecutrix and the accused has matched. In the FSL result Ex.PW13/A it is opined that : "The DNA profile generated from the male fraction DNA obtained from the source of exhibits ie (cervical swab) and if (vaginal swab and smear ) was found to be consistent with the DNA profile of accused (source of exhibit 2: blood stained gauge)"
SC No. 2468/16 State Vs Pramod Yadav Page No. 27 of 33
36. Though the accused has taken the defence that the FSL result is concocted but there is nothing on the file to doubt the seizure of exhibits or the tampering of the same. The collection of the exhibits, handing over of the exhibits of the prosecutrix by the doctor to PW4 W/Ct. Nutan, who proved the handing over of the same to the IO and their seizure vide Ex.PW4/A and also proved by the IO, seizure of the exhibits of the accused by PW12 Ct. Pawan and handing over to the IO by PW12 and its seizure vide Ex.PW12/B and forwarding the exhibits by PW16 HC Shish Pal to FSL is duly proved by the prosecution from the statement of these witnesses. PW19 has specifically deposed that so long as the exhibits remained in his custody the same was not tampered with. The testimony of these witnesses are convincing and cogent and leaves no doubt on the collection, seizure and forwarding of the exhibits to the FSL. During their cross examination, the testimonies of these witnesses remained intact.
37. Hence, the statement of the prosecutrix, her MLC and the DNA result proves beyond doubt that the physical relations were in fact made between the accused and prosecutrix on the day of incident.
38. Now the question to be decided is whether the relations were consensual between the prosecutrix and accused or not.
39. Admittedly, prosecutrix was married and her earlier husband had left her around 12 years ago when she was 3 months pregnant.
SC No. 2468/16 State Vs Pramod Yadav Page No. 28 of 33 She had admitted that she had registered a case under Section 376 IPC against the accused earlier. In her cross examination, prosecutrix had admitted a document Ex.PW1/DA which is a signed statement given by the prosecutrix to PW14/SI Yashwir Singh, who on receiving DD No. 236A Ex.PW14/A that lady is lying in unconscious condition, went to the spot along with W/Ct. Sunita. As per his version, prosecutrix was already removed to Safdarjung Hospital where she was not found fit for statement. Again he went to the hospital on the same day for recording her statement but she was not present there. Then he went to the spot where the prosecutrix was found who stated that she is not in fit state of mind and will give the statement later on and then he returned to the police station and thereafter the prosecutrix came to police station and had given her statement Ex.PW1/DA. In this statement Ex.PW1/DA recorded by PW14 the prosecutrix has stated that "mere sath koi galat kaam nahi hua hai. Mujhe kisi ne kuch galat khilaya pilaya nahin". During the cross examination, prosecutrix could not mention as to under what circumstances she has signed the said statement made to the earlier IO/PW14 SI Yashvir Singh. The said statement is duly signed by the prosecutrix and admitted by her. As per this statement Ex.PW1/DA she had gone to meet the accused on 19.07.2015 near New Ashok Nagar and they talked to each other near Pul (flyover) in Sector 15. Thereafter accused left her in an auto at Mehar Chand Market. She stated that SC No. 2468/16 State Vs Pramod Yadav Page No. 29 of 33 nothing wrong had happened with her in this regard. Later on IO of this case again recorded the statement of prosecutrix in which she had narrated the incident as alleged by her in the court. Hence, it is clear that earlier the prosecutrix has stated to the police that nothing wrong had happened with her but later on she had given a wavering statement to the later IO whereupon the present case is registered against the accused.
40. It is settled law that a witness who gives two different testimonies at the same time or at two different times is unworthy of credit and the testimony of such witness is not reliable.
41. Reference can be had from the case of Surajmal Vs State (Delhi Administration) AIR, 1979 Supreme Court 1408 wherein Hon'ble Supreme Court has observed that: "It is well settled that where witnesses made two inconsistent statements in their evidences either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses."
42. Admittedly, the prosecutrix had filed a case against this accused earlier also which was pending before this court and the same was decided by my Ld. Predecessor Court on 27.07.2016. The copy of the said judgment is given by Ld. Counsel for accused during the course of arguments. There is no objection with regard to the authenticity of this judgment. Ld. Counsel for accused has argued that in that case, SC No. 2468/16 State Vs Pramod Yadav Page No. 30 of 33 statement of prosecutrix was already recorded in March, 2015 and as such, there was no occasion for the accused to call her to talk in connection with the said case. It is argued that in fact the prosecutrix was very desperate to perform marriage with the accused and when he refused, she falsely implicated the accused in this case to mount pressure upon him to marry her.
43. To ascertain the date of recording of testimony of prosecutrix in the earlier FIR No. 185/14, PS Lodhi Colony, I had requisitioned the judicial file of the said case which was decided by my Predecessor Court on 27.07.2016 and it is revealed that the testimony of prosecutrix was concluded in the said case on 11.03.2015. Hence, there is merit in the argument of Ld. Counsel for accused that when the statement of prosecutrix was recorded in the said case, there was no occasion for the accused to call her to meet him in connection with the said case. In the FIR No. 185/14, my Predecessor Court had acquitted the accused holding that relations between the prosecutrix and accused were consensual and there was no promise of marriage by the accused and that prosecutrix did not appear to have consented for sexual relation in consequence of misconception of fact arising from his promise of marriage and that they remained in livein relationship for long. The said judgment has attained finality. In the present case also the accused had taken the defence that he was living in livein relation with the prosecutrix. The prosecutrix has given a statement to SC No. 2468/16 State Vs Pramod Yadav Page No. 31 of 33 earlier IO PW14 that nothing wrong had happened with her and that nobody had administered wrong thing to her. Viewed in this scenario, the relations between the prosecutrix and the accused appear to be consensual.
44. Moreover, it is not out of place to mention here that PW5 neighbour of the prosecutrix who had taken her to the hospital when she was lying unconscious on the road has deposed that the prosecutrix has stated that she got married with the applicant/accused. She had also deposed in her cross examination that she has seen the accused visiting the house of the prosecutrix in 2004, 2015 and even during the time period of both the cases and she had seen him in the evening time. This statement of PW5 shows that even after the registration of the earlier FIR, the prosecutrix was meeting the accused off and on and knowing full well that she was not married with the accused, she was stating that accused is her husband. In view of this evidence the defence of the accused that prosecutrix was desperate to marry him cannot be ruled out.
45. In the present case, the prosecutrix had earlier made statement to the police that nothing wrong had happened with her. Then again, she levelled allegations of rape against the accused in her complaint made to the police. There is no explanation as to how she was found unconscious near Banyan Tree School near her house when the incident had happened with her in jungle near Ashok Nagar. At one SC No. 2468/16 State Vs Pramod Yadav Page No. 32 of 33 hand the prosecutrix had already filed a case of rape against the accused and on the other hand during the pendency of the said case she was going to meet the accused and was meeting him on regular basis, as told by PW5. This conduct is reflective of the fact that the relation between the accused and the prosecutrix were nothing but consensual. The testimony of the prosecutrix does not inspire confidence and is not of sterling quality as is revealed from her own conduct. The relations between them were certainly consensual and cannot be termed as rape. According, prosecution has failed to prove its case beyond reasonable doubt. Giving benefit of doubt the accused Pramod Yadav is acquitted of the offence punishable under Section 328/376(2)(n) IPC.
46. In view of the Section 437A of Cr.P.C., accused is directed to furnish bail bond in a sum of Rs. 30,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any. File be consigned to Record Room.
Announced in the open court today i.e. 21.04.2018 ( Renu Bhatnagar) ASJSpl. FTC / SED/Saket Courts New Delhi SC No. 2468/16 State Vs Pramod Yadav Page No. 33 of 33