Delhi District Court
State vs Sumit Kumar Bhatia 1 Of 17 on 28 August, 2017
IN THE COURT OF MS. BIMLA KUMARI: ADDITIONAL
SESSIONS JUDGE/SPECIAL FAST TRACK COURT:ROHINI
DELHI
Sessions Case No : 57335/16.
S.C. No. : 80/13
STATE
VERSUS
SUMIT KUMAR BHATIA,
S/O. SHRI ASHOK KUMAR BHATIA,
R/O. A1681,
JAHANGIRPURI,
DELHI.
FIR No : 01/12.
Police Station : MAHENDRA PARK.
Under Sections : 376 IPC.
Date of Committal to Sessions Court :01.05.2012
Date on which Judgment reserved :22.07.2017 & 21.08.2017
Date on which Judgment announced :28.08.2017
J U D G M E N T
1.In the present case, charge against accused Sumit Kumar Bhatia in respect of offence u/s. 376 IPC was framed by ld. Predecessor on 08.10.2012 with the allegations that in the night of 01/02.01.2012 at STATE VS SUMIT KUMAR BHATIA 1 of 17 about 3:40 p.m., he committed rape upon the prosecutrix without her consent in a white Maruti Van parked near red light, Jahangirpuri Metro Station,.
2. Accused pleaded not guilty to the said charge and claimed trial.
3. To bring home the guilt of the accused, prosecution has examined 21 (twenty one) witnesses. They are as under:
(i) PW1, ASI Babu Khan (got recorded the FIR Ex.PW1/AP
(ii) PW2, Dr. R.S. Mishra (under his supervision, Dr. ` Azie Manzoor medically examined the accused vide MLC Ex.PW2/A)
(iii) PW3, Dr. Rachit (under his supervision Dr. Shailender Kumar medically examined the prosecutrix vide MLC Ex.PW3/A)
(iv) PW4, Dr. Seema (Has identified the signature of Dr. Mamta Rahengdde, who had conducted the Gynaecological examination of the prosecutrix)
(v) PW5, W/Ct. Seema (took the prosecutrix to BJRM Hospital for her medical examination)
(vi) PW6, Ct. Sachin Kumar (took the IO to BJRM Hospital on his motorcycle)
(vii) PW7, Ct. Altaf Hussain Khan (He took the accused to BJRM Hospital from lock up for taking the sample STATE VS SUMIT KUMAR BHATIA 2 of 17 of his hair)
(viii) PW8, Ct. Praveen Kumar (He was with PW7 and took the accused to BJRM Hospital from lock up for taking the sample of his hair)
(ix) PW9 is the Prosecutrix.
(x) PW10, HC Chander Bhan (He was MHC(M) at PS)
(xi) PW11, SI Anil Kumar (He was Incharge Mobile Crime Team which took the photos of maruti van)
(xii) PW12, Ct. Surender (He was the photographer in the Mobile Crime Team)
(xiii) PW13, HC Kalyan Singh (He took the exhibits to FSL).
(xiv) PW14, Ct. Dharmender Singh (He was with IO at the time of preparing the site plan Ex.PW14/A and seizure of Maruti Car and other case properties in car and arrest of accused)
(xv) PW15, SI Satyavir Singh (He is the initial IO of the case) (xvi) PW16, Ct. Pradeep (He joined the investigation on 03.11.2012 with IO and Ct. Dharmender (PW14)) (xvii) PW17, Shri V. Shankarnarayanan (He has examined the exhibits of case at FSL Rohini) (xviii)PW18, Ms. Shashi Bala Pahuja (She has conducted the DNA examination on the exhibits at FSL) STATE VS SUMIT KUMAR BHATIA 3 of 17 (xix) PW19, Manju Sharma (She is mother of the prosecutrix) (xx) PW20, W/SI Durga Kapri (She is the last IO of the case) (xxi) PW21, Dr. V. Shankarnarayanan (He has conducted the DNA examination on the exhibits on the direction of the Court).
4. Statement of accused u/s. 313 Cr.P.C. was recorded wherein he has denied allegations of the prosecution. He has submitted that he has been knowing the prosecutrix since 2012, as her mother showed the inclination, to his mother, for marriage of prosecutrix with him. On 02.01.2012 when he refused to marry the prosecutrix as his family had fixed his marriage with some other girl, she started crying. He tried his level best to convince her but she did not reply and went to her house. After that, her mother came to his house and asked the reason of his refusal. On 03.01.2012, 3/4 police officials came to his home and he was taken to the police station, in his van. Police took the key of his van and put him in lock up. In Police station, the mother of the prosecutrix was present alongwith one Rajesh, who threatened and warned him by saying that, "Abhi Bhi Samay Hai Apne Pariwar ko Samjha le Nahi to Jail Jayega." He was badly tortured in the police station. Police obtained his signatures and his thumb impression on various blank papers and forms. He is innocent. The prosecutrix and her mother have lodged the false and fabricated case against him with a view to create pressure upon him and STATE VS SUMIT KUMAR BHATIA 4 of 17 his family members.
5. Accused has examined two witnesses in his defence. They are as under:
(i) DW1, Rahul Sehgal
(ii) DW2, Ashok Kumar
6. I have heard arguments from ld. Counsel for accused, who has prayed for acquittal of the accused by submitting that no CCTV footage of the place of the incident has been obtained by the IO. Clothes were handed over by the prosecutrix to the police after three days of the incident. As per the MLC, no internal injury and resistant marks were present on the body of the prosecutrix. The testimony of the prosecutrix is not trustworthy and reliable. There are contradictions in the statements of the prosecutrix. There is delay in lodging the FIR, as prosecutrix spent the whole night in temple, after the alleged rape. Prosecutrix received injuries on her body, as she met with an accident, as per her own testimony, when she was going to her home in the next morning. Accused was present in Mata Jaagran as per testimony of DW1 at the relevant time. Committal of rape by the accused in the school van on its 'front' seat, which was fixed is not possible. FSL result is in favour of accused.
7. On the other hand, ld. Addl. PP has submitted that the prosecutrix and other Pws have fully supported the prosecution story. The clothes have been identified by the prosecutrix. The prosecutrix has identified the accused. The site plan was prepared at the instance of the STATE VS SUMIT KUMAR BHATIA 5 of 17 prosecutrix. The rape has been committed by the accused upon the prosecutrix, as semen has been detected on the salwar of the prosecutrix.
8. I have also gone through the written submissions filed by ld. Counsel for accused.
9. It is settled law that accused can be convicted on the sole testimony of the prosecutrix, provided her testimony is trustworthy and reliable.
10. In Abbas Ahmad Choudhary Vs. State of Assam I (2010) CCR 402(SC) relied upon by Hon'ble High Court in Criminal Appeal No.248/15 titled as Sunder V. State FIR No.177/11, PS Narela, U/s. 363/376/34 IPC, it has been observed that: "in a matter of rape, the statement of the prosecutrix must be given prime consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and statement of prosecutrix cannot be treated as gospel truth."
11. In Sanjay Vs. State Crl.A.1059/2015 pertaining to PS Nangloi, FIR No.538/06, u/s. 376/506 IPC and decided on 28.07.2016, it was held by Hon'ble Delhi High Court that: "Needless to say, conviction can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony.
STATE VS SUMIT KUMAR BHATIA 6 of 17 In case, the court has reasons not to accept the version of the prosecutrix, on its face value, it may look for corroboration."
12. Further, in Sadashiv Ramrao Hadbe vs. State of Maharashtra & Anr, 2006 (10) SCC 92, the Hon'ble Supreme Court held that: "It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or that whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
13. In the present case, after going through the testimony of the prosecutrix, I am of the considered view that prosecutrix is not trust worthy and reliable. She has not been consistent in her statement and gave different versions at different times. Further, her testimony is not STATE VS SUMIT KUMAR BHATIA 7 of 17 corroborated with the testimony of other witnesses.
14. From the testimony of the Pws, it is not clear as to where the rape was committed upon her by the accused.
15. PW9/prosecutrix has deposed that on 01.01.2012, there was a new year party in her gali. She attended that party. At about 3:00 p.m., she went to her house. Thereafter, she was standing at the balcony of her house, at 3rd floor. Accused Sumit, to whom she was knowing previously, was residing in a gali, opposite to her house. On the occasion of Janmastmi he had given his mobile phone number to her and started insisting her to make calls to him. He was standing beneath her house and gave signal to her by his finger and asked her to meet near red light, Metro Station, Jahangirpuri, Delhi. She went there. Accused Sumit came in a van of white colour. He opened the door of the said van and made her to sit in the said van. Thereafter, he took her to a place, where weighing of trucks was done. Vehicles were standing there. He started doing love talks with her and stated to her that he loved her and wanted to marry with her. She refused to marry with him. Thereafter, he asked her to open chord (nada) of her salwar. She refused to open the same, on which he (accused) forcibly cut off the chord of her salwar with a knife. Thereafter, he started doing Badtamizi (misbehaviour/misconduct) and touched her body parts and committed ganda kam (bad deed) with her. He (accused) removed his pant and dragged the chair of the car behind and forced STATE VS SUMIT KUMAR BHATIA 8 of 17 himself upon her. In other words, the ganda kaam / rape was committed upon her by accused at a place, where weighing of trucks is done i.e. Dharamkanta.
16. But in her statement Ex.PW9/A, she has stated that accused Sumit met her at Red Light, Metro Station, Jahangirpuri from where he took her to the parking of Metro Station, where his white colour van was parked. He made her to sit in the Van and started love talks with her. He stated to her that he wanted to marry with her. He also asked her to remove the salwar, but she refused to do the same. Thereafter accused cut off the chord (nada) of her salwar and committed rape upon her without her consent. In other words, as per statement Ex.PW9/A the rape was allegedly committed by accused upon her in the parking of metro station, Jahangirpuri.
17. But, PW20 W/SI Durga Kapri, who is the IO of the case has deposed that on the intervening night of 02/03.01.2012 at about 9:00 P.M., she received an information from PS - Mahendra Park, regarding rape. She went to the PS, from where she came to know that prosecutrix had been taken to the hospital by SI Satbir. She went to hospital, where the prosecutrix was present with her mother. The prosecutrix was medically examined. After her medical examination W/HC Seema handed over the MLC of victim and sealed exhibits, which were seized by her vide memo Ex.PW5/A. Thereafter, they came to the PS and statement of prosecutrix Ex.PW9/A was recorded. She prepared the rukka Ex.PW20/A and handed over the same to duty officer for STATE VS SUMIT KUMAR BHATIA 9 of 17 registration of FIR. She has further deposed that on 03.01.2012, she alongwith Ct. Pradeep and Ct. Dharmender went to the house of prosecutrix. The prosecutrix and her mother were also joined in the investigation. Thereafter, they went to the house of accused, but he was not present. They tried to search the accused, but he could not be traced out. They went to Near Red Light, Metro Station, Om Dharam Kaanta, Service Lane. She prepared the site plan, Ex.PW14/A, at the instance of complainant.
18. In crossexamination by ld. Counsel for accused PW20 has deposed that the prosecutrix has specified the place of vehicle, which was situated at the distance of 100/200 meters from the red light, Metro Station, Jahangirpuri. She has volunteered that the place of the incident was towards Jahangirpuri Bye Pass and not towards metro station, Jahangirpuri. In other words, as per the testimony of PW20, the place of incident was towards Jahangirpuri Byepass and not towards Jahangirpuri Metro Station.
19. But, as per the site plan, Ex.PW14/A, the maruti van in question is shown to have been parked in a gali opposite to Om Dharam Kanta.
20. Thus, prosecution has miserably failed to prove on record as to where the alleged rape was committed by accused upon the prosecutrix.
21. Further, from the testimony of the prosecutrix, it is not STATE VS SUMIT KUMAR BHATIA 10 of 17 clear as to whether she met the accused on 01.01.2012.
22. PW9/prosecutrix has deposed that on 01.01.2012 after attending the new year party, she went to the red light, metro station, Jahangirpuri on the asking of accused, from where he took her to a place, where weighing of trucks was done and accused committed rape upon her.
23. In other words, she met accused on 01.01.2012 and accused committed rape upon her on that date.
24. But, in her crossexamination by ld. Counsel for accused, she has deposed that she did not meet the accused Sumit Kumar Bhatia at any point of time on 01.01.2012.
25. But, at the same time, she has also deposed that accused Sumit proposed her for marriage on 01.01.2012 and she remained with accused in the Van till 6:00 pm.
26. It is significant to note that when she (the prosecutrix) did not meet the accused at any point of time on 01.01.2012, then how it was possible for the accused to commit rape upon her and, thereafore, the testimony of prosecutrix in this regard also cannot be believed and relied upon.
27. Further, from the testimony of the prosecutrix it is not clear as to whether she was on talking terms with accused prior to 01.01.2012 or not.
28. PW9/prosecutrix has deposed in her examinationinchief that she was knowing the accused personally, as he was residing in a gali STATE VS SUMIT KUMAR BHATIA 11 of 17 opposite to her house. On the festival of Janmastami, accused had given his mobile phone number to her and insisted her to make calls to him. In her statement Ex.PW9/A also, she has stated that they used to talk on phone after Janmastami. In other words, the prosecutrix was on talking terms with the accused prior to 01.01.2012.
29. But in her crossexamination by ld. Counsel for accused, she has deposed that she did not have any contact with Sumit on phone prior to 01.01.2012, but at the same time, she has also deposed that only once she had talks with accused on mobile phone
30. It is worth noting that if the prosecutrix was not on talking terms with the accused, prior to 01.01.2012, than how she is able to understand the signal of accused, made by him with his finger and goes to Red Light, Metro Station, Jahangirpuri to meet him. Since, no explanation has been furnished by the prosecutrix in this regard, her testimony cannot be believable and relied upon.
31. Further, from the testimony of PW9/prosecutrix, it is not clear as to whether, accused had come in the maruti van or the Van was already parked in the parking lot of Metro Station, Jahangirpuri.
32. PW9/prosecutrix has deposed that upon the signal, given by accused with his finger, she went to metro station, Jahangirpuri. Accused came in a white colour Maruti Van. He opened the door of the said Van and made her to sit in the Van. Thereafter, he took her to place where weighing of trucks is done. In other words, accused had come in a STATE VS SUMIT KUMAR BHATIA 12 of 17 Maruti Van, on the day of incident, and made her to sit in that Van.
33. But, in her statement Ex.PW9/A, she has stated that after receiving the signal from accused, she went to Red light, Metro Station, Jahangirpuri, where accused Sumit Kumar Bhatia met her. He took her to the parking of the metro station, where his van was parked. He made her to sit in that Van and started love talks with her. In other words, the Maruti Van, in which the alleged rape was committed by the accused, was already parked in the parking of metro station, Jahangirpuri and accused had not come in the Maruti Van to pick her up from the Metro station, Jahangirpuri.
34. Further, there is delay in lodging the FIR.
35. In Jaishree Vs. State Crl. A. 1382/13 and Balbir Singh & Anr Vs. State Crl. A. 1268/13 decided on 19.04.2017 by Hon'ble Delhi High Court, it was observed that:
"Undoubtedly, the promptness in the lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."
36. In the present case, as per the testimony of PW9/prosecutrix, accused allegedly committed rape upon her in the evening on 01.01.2012 as she remained with accused Sumit in the Maruti Van till 6:00 p.m. However, FIR Ex.PW1/A has been registered on 03.01.2012 at about STATE VS SUMIT KUMAR BHATIA 13 of 17 2:00 a.m.
37. In crossexamination by ld. Counsel for accused PW9 has deposed that she did not go to her home on 01.01.2012. She has admitted that she did not inform her parents, after her return to home that she had gone with Sumit on 01.01.2012.
38. Further, PW19 Smt. Manju Sharma, who is the mother of the prosecutrix has deposed that on 01.01.2012 she had gone to attend Satsang in Gali No.1200. She came back to her house at about 6:00 p.m. Her children told her that her daughter / the prosecutrix was called by accused Sumit and she had gone to meet him. She searched her daughter here and there and also made inquiries from her relatives and friends but did not find any clue about her. Thereafter, on suspicion, they went to the house of the accused Sumit, which was found locked at that time. In the morning, they again visited the house of the accused and his parents were there, but they did not give any satisfactory reply in that regard. She has further deposed that on 02.01.2012, in the evening, her daughter came to the house, in an injured condition and she took her daughter to the PSMahendra Park, where her daughter told the incident to the police.
39. In crossexamination by ld. Counsel for accused, PW19 has deposed that they did not lodge the complaint to police till the evening of 02.01.2012, as they kept on searching her. She has fxurther deposed that they had been searching the prosecutrix in the neighbourhood and in the houses of her friends, as her no relative lives nearby her house.
STATE VS SUMIT KUMAR BHATIA 14 of 17
40. It is significant to note that when it was the in the knowledge of PW19 that her daughter had gone with accused Sumit, then why she did not report the matter immediately to police and kept on waiting the return of her daughter to the house.
41. Since, delay in lodging the FIR has not been properly explained by the prosecution, I am of the considered view that delay in lodging the FIR is fatal to the prosecution and cannot be ignored
42. Further, as per testimony of PW4 Dr. Seema, the prosecutrix was examined gynecologically by Dr. Mamta vide her observations from points C to C1 on MLC Ex.PW3/A. Dr. Mamta took the samples, which were handed over by her to PW5 W/Ct. Seema, who in turn handed over the same to IO W/SI Durga Kapri (PW20) and IO deposited the same with PW10. During investigation, the said samples were sent to FSL, where PW17 Shri V. Shankarnarayanan, Senior Scientific Officer, FSL, Rohini examined the exhibits biologically and serologically vide his reports Ex.PW17/A and Ex.PW17/B respectively. PW18, Shashi Bala Pahuja, Senior Scientific Officer, FSL, Rohini, Delhi has conducted the DNA examination on exhibits vide her Report Ex.PW18/A. As per the Biological Report Ex.PW17/A human semen has been detected on the salwar and underwear of the prosecutrix.
43. But, as per the DNA report Ex.PW18/A, the DNA could not be isolated from the source of exhibits S1 (strands of hair of accused) and exhibit S2 (strands of hair of prosecutrix) due to nonavailability of DNA from the source of exhibits S1 & S2.
STATE VS SUMIT KUMAR BHATIA 15 of 17
44. It is significant to note that during trial of this case, fresh blood sample of the accused was taken by the IO with the permission of Court and was sent to FSL, where PW21 Dr. V. Shankarnarayanan, Senior Scientific Officer (Biology) again conducted the DNA examination on the exhibits vide his detailed report Ex.PW21/A. But, again no DNA could not isolated from the exhibits due to inhibitors/degradation.
45. In these circumstances, it cannot be concluded that the semen detected on the clothes of prosecutrix was of accused.
46. Moreover, the prosecutrix had handed over her clothes after three days of alleged rape and keeping in view of the facts and circumstances of case the possibility of fabrication/manipulation in this regard by the family of prosecutrix the cannot be ruled out
47. In the present case, accused has examined DW1 Rahul to prove that he was present in Mata Jaagran on 01.01.2012. However, the testimony of DW1 is not discussed in detail as DW1 has admitted in his crossexamination by ld. Addl. PP that the Jaagran started at 10:00 p.m., and the alleged offence is stated to have been committed by the accused at about 3:40 p.m.
48. Accused has also examined DW2 Ashok Kumar, who is owner of Dharam Kaanta, as per the certificate Ex.DW2/PA issued by the office of Controller Legal Metrology, to prove that no incident had taken place, near his Dharam Kaanta, as the same remains open 24 hours. But the testimony of this witness is also not discussed in detail since STATE VS SUMIT KUMAR BHATIA 16 of 17 prosecution has not been able to prove the place of incident, where the alleged rape was committed by accused.
49. Thus, after going through the testimony of prosecutrix and other material on record, I am of the considered view that prosecution has miserably failed to prove beyond reasonable doubt that on the night of 01/02.01.2011 at about 3:40 p.m., accused committed rape upon the prosecutrix in a white maruti van, near red light, metro station, Jahangirpuri.
50. Accordingly, accused is acquitted of the offence, he was charged with. His personal bond and surety bond are hereby canceled. His surety is discharged.
51. However, in term of Section 437 (A) Cr.PC, accused has furnished fresh personal bond in the sum of Rs.10,000/ with one surety of the like amount, which are accepted for a period of six months with the directions to appear before higher court, in the event, he receives any notice of appeal or petition against this judgment.
File be consigned to record room.
Announced in the open Court (Bimla Kumari)
on this 28th day of August 2017 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
STATE VS SUMIT KUMAR BHATIA 17 of 17