Delhi District Court
State vs . Suresh Kumar on 6 May, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 57594/16
State
Versus
Suresh Kumar
S/o Late Sh. Harbans,
R/o H. No. 681, Village Bajitpur
Delhi.
FIR No. : 146/12
Police Station : Narela
Under Sections : 376/506 IPC
Date of Committal to Sessions Court : 29.01.2013
Date on which Judgment reserved : 26.04.2019
Date on which Judgment announced : 10.05.2019
JUDGMENT
1. The accused has been forwarded to face rape trial.
2. The prosecutrix claimed that she had given complaint to SHO, PS Narela regarding rape and when he did not take any action, she moved an application before concerned DCP on 17.02.2012, but on that complaint also, no action was taken. Thereafter, she filed a case U/s 200 Cr.P.C. alongwith application U/s 156(3) Cr.P.C. which was allowed and the police was directed to register FIR and investigate the case.
State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 1 of 14
3. Police case is that husband of the prosecutrix had sold agricultural land for about Rs. 89 Crores. After coming to know of such a big sale, the accused being her Nandoi (husband's sister's husband) started visiting her house for demanding money from her husband, though earlier, he was not on regular visiting terms. Her husband flatly refused to give him even a single penny and due to pressure mounted by her, he even turned him out of the house and the accused had to leave her house extending threats of dire consequences. Her husband was abducted on 18.03.2011 for which FIR No. 101/10, U/s 365 IPC was registered. After his abduction, the accused started visiting her house regularly and showing sympathy towards her with the sole intention of usurping the landed money. She was under great depression due to abduction of her husband and as such, she unknowingly and unintentionally fell prey to accused and he raped her several times in one year. During that period, he obtained her signatures on blank papers and extorted money by withdrawing the same from her bank account. She had a step son Surender who was also threatened by the accused, to be implicated in a false case and under that threat, the step son had committed suicide.
4. Charge U/s 376/506 IPC was framed against the accused on 05.03.2013 to which he pleaded not guilty and claimed trial.
5. In order to prove the case, the prosecution examined eleven witnesses.
6. PW2 is the prosecutrix. She deposed that accused was her Nandoi. On 18.03.2011, her husband Beer Singh went missing for which State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 2 of 14 FIR was registered in PS Narela. Prior to missing, Beer Singh had sold 3 acres for Rs. 4 Crores out of which he had retained Rs. 2 Crores and the balance amount of Rs. 2 Crores was given to his step son Surender from his first wife Jeewani. She further deposed that the accused alongwith his wife Nirmala had come to them to ask for money but her husband had refused. Her husband went missing on 18.03.2011. All relatives had visited her after his missing but the accused had come to her only after three days of missing. Accused used to tell her that he would get her husband traced out. After about 1 - 1½ months of missing, when she was sitting alone in her house, accused came there and committed galat kaam/raped her without consent. She did not make any complaint to anybody as she was threatened by the accused. Inducing, he took her to his house in village Bajitpur where he started asking money from her on the pretext that it was to be paid to police and also on the pretext that he had incurred expenses on fare/kiryana. She further deposed that she gave him money on one or two occasions and when she refused to pay, he started threatening her. He used to take her under threat to bank for withdrawing money. She further deposed that the accused had raped her several times without her consent in his house. When the case of missing of her husband was transferred to Crime Branch, she had disclosed to the police officials of Crime Branch about the misdeeds of the accused. She further deposed that the case was ultimately registered by the order of the court and she was medically examined in SRHC Hospital.
State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 3 of 14 PW7 Ms. Sheela deposed that her father Sh. Beer Singh, who used to reside in Narela, went missing five years ago. Prosecutrix Smt. 'R' (since expired) was her step mother and accused Suresh was her Phoopha. Prosecutrix used to visit the house of the accused situated in Village Bajitpur after the missing of her father. She used to visit her house as well as the house of other relatives. But she never stayed in the house of the accused. In the cross examination by Ld. Additional PP, she admitted that after the missing of her father, accused started visiting house of the prosecutrix frequently. She was not aware if the prosecutrix used to wander with the accused. She never stayed in his house for 3 - 4 months. She denied the suggestion that she had told police that the prosecutrix used to wander with accused after missing of her father. She further denied that she had told police that the prosecutrix had stayed in the house of accused for about 34 months. She admitted the suggestion that her relations with the accused were cordial as he was her Phoopha.
PW8 Ms. Kavita deposed that Sh. Beer Singh was her father inlaw who used to reside with her and her husband in Narela. On 18.03.2010, he was kidnapped for which case was registered in PS Narela. Sh. Beer Singh was first married to Smt. Jivani (since expired) and three children namely Surender, Sheela and Renu were born from that wedlock. She further deposed that after the death of Smt. Jivani, Sh. Beer Singh married to prosecutrix, however, no child was born to them. Sh. Beer Singh owned three acres of land which was sold in Rs. 3.75 Crores. Half of the amount was given to her and her husband and rest was retained by State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 4 of 14 her fatherinlaw. He had one bank account in his own name and two in joint name with prosecutrix. He purchased a plot from his share and deposited the remaining amount in Bank. The prosecutrix stayed with her only for 1 - ½ or 2 months after missing of her fatherinlaw. She used to reside reside in the front portion whereas she and her husband were living in the back portion of the same house. Accused started frequently visiting the prosecutrix after missing of Beer Singh and after two months, she went alongwith him. Thereafter, the accused and she used to visit her house only sometimes. On some occasions, Smt. Nirmala (wife of the accused) also accompanied them when they visited her house. Accused and prosecutrix had withdrawn whole amount from bank within one year of missing of her fatherinlaw. Due to frequent visits of the accused and the prosecutrix, her husband Sh. Surender started suffering from tension as they used to quarrel with him and her. Her husband committed suicide due to tension. The prosecutrix had stayed in the house of the accused for a long time.
PW11 Smt. Renu is step daughter of the prosecutrix. After missing of her father, she stayed at her parental home with her step mother i.e. prosecutrix. Her Phoopha accused i.e. used to visit the Court with prosecutrix in the absence of her family members. After one year of missing of her father, her brother Sunder also expired.
In the cross examination by Ld. Additional PP, she deposed that she had not told police that prosecutrix used to wander with her Foofa. She further deposed that she had not told police that her step State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 5 of 14 mother had resided in the house of her Foofa for 3 - 4 months.
7. PW6 Sh. Naresh Khatri filed the record of joint account no. SD4037 of Bir Singh and prosecutrix. She proved the attested copy of account opening form attested by Branch Manager, specimen signature card, cheque book issue register and statement of account w.e.f. 30.11.2009 to 28.08.2013 as Ex.PW6/A to Ex.PW6/D respectively.
PW9 Sh. Sanjeev Singh from Delhi State Cooperative Bank, filed record of account nos. 6235 and 6240 which are in the individual names of Beer Singh and prosecutrix. Account no. 6239 is in their joint name.
8. PW4 Dr. Swapnil examined prosecutrix medically on 28.03.2012. She prepared MLC as Ex.PW4/A. She refused to undergo internal examination.
PW3 Dr. Avadesh Kumar deposed that after examining accused on 24.04.2012, he opined that there was nothing to suggest that he was not capable of performing sexual intercourse. He had prepared the MLC as Ex.PW3/C. PW5 HC Rajvir Singh was working as Duty Officer on 23.03.2012 and on that day, Inspector Manoj Kumar handed him over a complaint upon which he registered the case FIR Ex.PW5/A.
9. PW10 IO Inspector Manoj Kumar deposed that after receipt of an order from Ld. MM on a complaint U/s 200 Cr.P.C. on 22.03.2012, he made endorsement Ex.PW10/A and gave the same to Duty Officer who registered the case FIR and gave him a copy of FIR. He alongwith HC State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 6 of 14 Suraj Bhan reached to the house of prosecutrix i.e. H. No. 69, Pana Udhyan, Narela, but she was not found there but her daughterinlaw Kavita met them and he recorded her statement. He later came to know that the prosecutrix was residing with her brother Virender in his village and hence, he reached there, but she was not found there also. Her brother Virender undertook that he would inform his sister. The prosecutrix informed him on 28.03.2012 that she had already reached SRHC Hospital alongwith her nephew Sudhir and he (PW10) alongwith Lady Ct. Sheela also reached there and got her medically examined. But she refused to undergo internal medical examination. She also refused for forensic analysis. After recording her statement, he alongwith staff went to the house of the accused and instructed his family members to ask accused to join investigation. He (accused) came to SRHC Hospital on 24.04.2012 and was formally arrested vide arrest papers Ex.PW1/A as he had been granted anticipatory bail. After enquiry, his disclosure statement Ex.PW1/B was recorded. HC Suraj Bhan handed him over photocopy of statement of joint bank account of prosecutrix and her husband on 02.07.2012, which he took into possession vide memo Ex.PW1/C. Thereafter, he filed the chargesheet.
10. Under Section 313 Cr.P.C., the accused took the defence of false implication on the ground that the prosecutrix falsely believed that he had borrowed some amount from her husband and that is why she filed this case to put pressure upon him to get back that amount.
State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 7 of 14
11. Ld. defence counsel argued that further cross examination of the prosecutrix was deferred on 04.06.2013, but she did not appear as she expired and hence, without complete cross examination, it cannot be said that the statement of the prosecutrix is evidence within the meaning of Section 3 of Indian Evidence Act, 1872. Next argument is that the incident is said to have taken place 1 or 2 months after her husband went missing on 18.03.2011, but the FIR has been registered on 22.03.2012. There is no explanation why the matter was not reported to the police earlier. He next submitted that the place, time and date of incident have not been deposed by the prosecutrix. She told the doctor on the day of medical examination on 28.03.2012 that she was lastly raped at her matrimonial home about six months back, but as per the evidence of PW8 Ms. Kavita, with whom she used to live, the prosecutrix had left her house about two years ago. Last argument is that the conduct of the prosecutrix is not that of a reasonable person and hence, her evidence cannot be relied upon.
On the other hand, Ld. Additional PP argued that the accused is in close relationship with the prosecutrix being Nandoi and hence, she did not report the matter earlier as family honour was at stake. The prosecutrix was examined in chief and cross examined substantially and thereafter, she expired due to which her cross examination could not be concluded. Such kind of evidence is definitely evidence within the meaning of Section 3 of Indian Evidence Act, 1872 and can be taken into account. Next argument is that the place of incident has been deposed by State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 8 of 14 the prosecutrix and that ld. defence counsel is absolutely wrong to argue that the prosecutrix did not depose about the place of rape. He submitted that the prosecutrix was raped first time in her own house and thereafter, she was raped by the accused in his own house. Last submission is that the conduct of the prosecutrix is that of a reasonable person and hence, her evidence inspires confidence.
12. The prosecutrix was examined in chief fully and cross examined partly on 26.04.2013. She was further cross examined partly in four pages on 04.06.2013 and further cross examination was deferred for 29.08.2013. As per death certificate, she expired on 16.10.2013. Before death, she was examined in chief completely and was cross examined substantially.
In M.T. Horil Kuer & Anr. Vs. Rajab Ali & Ors., AIR 1936 Patna 34, it was held by Hon'ble Patna High Court that the evidence of a witness who was examined only in chief and not cross examined, cannot be said to have been obliterated due to non cross examination. It was held that weight of such evidence depends on circumstances.
It was held in Chinna Bayyannagari Munirami Reddy Vs. Chinna Bayyannagari Shankar Reddy & Ors., Civil Revision Petition no. 4632/2016 decided by Hon'ble Andhra Pradesh High Court on 20 th December 2016 that when a witness has been examined in chief, but the cross examination could not be completed due to his/her death, it cannot be said that such evidence does not exist. It should be taken into account.
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13. In view of above position of law, it is held that despite cross examination of prosecutrix not being complete, her statement amounts to evidence within the meaning of Section 3 of Indian Evidence Act, 1872. But it does not meant that the same is creditworthy and believable. This aspect shall be discussed in the coming paragraphs.
14. It is the settled law that accused can be convicted on the sole testimony of prosecutrix provided the testimony is trustworthy and reliable.
In Abbas Ahmad Choudhary vs. State of Assam, I (2010) CCR 402 (SC), it has been observed as under: "We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary 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 there can be no presumption that a prosecutrix would always tell the entire story truthfully."
In Sadashiv Ramrao Hadbe vs. State of Maharashtra & Anr., 2006 (1)) SCC 92, the Apex Court while reiterating that in a rape case, the accused can be convicted on the sole testimony of prosecutrix, if it is capable of inspiring confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony, when the entire case is improbable and unlikely to have happened. This what has been stated: State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 10 of 14 "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."
15. The FIR was registered when the complaint of the prosecutrix was sent to the police U/s 156(3) Cr.P.C. for registration of the case. Perusal of the complaint U/s 200 Cr.P.C. shows that the date, month and place of the incident are not mentioned in the same. In examination in chief, she deposed that her husband went missing on 18.03.2011 and 11½ months thereafter, accused came to her house and committed galat kaam. It means that she was raped in April or May 2011. Her explanation for not getting the FIR registered earlier, is that despite complaint, the police had not registered the FIR. It is the admitted fact that the case FIR was registered on 22.03.2012, but her explanation becomes false from the complaint given by her to SHO, PS Narela. That complaint was given only on 17.03.2012, whereas the incident of rape had taken place in April/May 2011. Hence, there is a delay of about 10 - 11 months in giving complaint to SHO. She has no explanation why she did not report the matter to police earlier.
State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 11 of 14 In Ganga Sharan @ Chotu & Anr. vs. State of Delhi, 2013 (4) C.C. Cases (HC) 143, report of rape was lodged after 42 days. The prosecutrix had failed to give any plausible explanation for inordinate delay. She had not raised hue and cry at the time of incident. She had not lodged any report to the police. There was nothing on record to show that she had offered any resistance or caused injury to the accused. She herself had not gone to the hospital for medical examination. In this backdrop, the accused was acquitted by Hon'ble High Court of Delhi. This citation can cover the case of the accused squarely.
16. As per MLC Ex.PW4/A of the prosecutrix, she had told the treating doctor that the accused had sexually assaulted her six months back in her house. She was unable to tell the exact date and month. Six months back to medical examination dated 28.03.2012 means that she was sexually assaulted in her own house in September 2011. But as per her examination in chief, in her house, she was sexually assaulted 1 - 1½ months after missing of her husband on 18.03.2011 i.e. in April or May 2011. So, as per MLC, she was sexually assaulted in September 2011, but as per her examination in chief, she was raped in her own house in April or May 2011. Both months are irreconcilable.
Moreover, it is deposed by step daughterinlaw PW8 of the prosecutrix that the prosecutrix had resided with her (PW8) only for 1½ - 2 months after kidnapping of her fatherinlaw in 2011. So, as per PW8, the prosecutrix had resided in her own house only upto May 2011. If she had resided in her house only till May 2011, it cannot be said that she was State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 12 of 14 raped in that very house by the accused in September 2011.
The prosecutrix deposed that the accused had raped her several times in his house also. Again, she did not depose the date, month and year of that rape. It is the case of the prosecution itself that Nirmala wife of the accused and children used to reside with him in the house of accused. Had accused raped his brotherinlaw's wife, the wife of the accused could not have remained tight lifted as the prosecutrix was her brother's wife. But Nirmala did not grace the witness box.
17. The conduct of the prosecutrix is not that of a reasonable person. As per complaint U/s 200 Cr.P.C., the accused was attracted to her house in greed as he wanted money from her husband who had sold agricultural land for about Rs. 4 Crores. Her husband had sensed his intention. It is further mentioned in her complaint that at one point of time when the accused sought money from her husband, he was turned out of the house. At that time, the accused had left her house extending threats of dire consequences. She deposed that when her husband went missing on 18.03.2011, all relatives visited her house, but the accused came to her only after three days of missing. Till that point of time, her complaint shows that there was hostility between her and accused. Her conduct till that stage is that of a reasonable person. Unreasonable conduct starts thereafter, and it is reflected in para no. 7 of the complaint in which it is mentioned that due to depression and missing of her husband, she unknowingly fell prey to accused. As per para 7, she had started liking the accused. Unreasonable conduct again appears in para State Vs. Suresh Kumar FIR no. 146/12, PS Narela Page No. 13 of 14 no. 8 of the complaint in which it is mentioned that the accused threatened and raped her under pressure and he kept on raping for more than one year.
18. In Rathinam @ Rathinan vs. State of Tamil Nadu & Anr., 2010 (4) C.C. Cases (SC) 158, the Apex Court held that a best check on the veracity of a witness is the test of normal human behaviour. In the case in hand, due to above discussion, the conduct and behaviour of the prosecutrix is not that a normal person.
19. Accordingly, accused Suresh Kumar is acquitted of the offences, he was charged with.
20. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
21. However, in terms of Section 437(A) Cr.P.C., accused has furnished the fresh personal bond in the sum of Rs. 10,000/ with one surety of the like amount, which are accepted with the directions to appear before Higher Court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room. UMED
Digitally signed
by UMED
SINGH
SINGH GREWAL
Date:
GREWAL 2019.05.15
17:27:22 +0530
Announced in the open Court (Umed Singh Grewal)
On this 10th May 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State Vs. Suresh Kumar
FIR no. 146/12, PS Narela Page No. 14 of 14