Delhi District Court
State vs Dilshad. -:: Page 1 Of 36 ::- on 16 August, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003
State
versus
1. Mr.Dilshad
Son of Mr.Aftab
Resident of H.No 148, Mohalla Julahan
Qazipur, Bijnaur, District Bijnaur, U.P.
............(facing trial)
2. Mr.Zaffaryab
...........(Proclaimed Offender vide order dated 03.09.2003)
First Information Report Number : 11/03
Police Station Kotwali,
Under sections 376, 506-B, 34 of the Indian Penal Code.
Date of filing of the charge sheet before : 19.04.2003.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 17.11.2003.
In the Sessions Court
Date of transfer of the file to this Court : 08.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 16.08.2013.
Date of judgment : 16.08.2013.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Accused Mr.Dilshad on bail with counsel, Mr.Usman
Choudhary.
Accused Mr.Zaffaryab is Proclaimed Offender vide order
dated 03.09.2003.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
*****************************************************************
Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003
FIR No. 11/03, Police Station Kotwali,
Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 1 of 36 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This case falls in the list of twenty oldest cases pending before this Court and is listed at serial number 2 in the list of twenty oldest cases. Unfortunately, this case has traversed a decade, however, this Court has made a sincere endeavour to dispose this case as expeditiously as practically possible.
2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is allegedly subjected to unwanted physical contact by a perverted male, known to her. Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 2 of 36 ::-
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3. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr. Dilshad, the accused, has been charge sheeted by Police Station Kotwali, Delhi for the offences under sections 376/506-B/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 04.01.2003 at about 10.15 pm at jhuggi No. C-24A-218, near Yamuna River, Indira Colony, Yamuna Pusta, Delhi, he alongwith co- accused Zafar Yab (declared proclaimed offender in this case vide order dated 03.09.2003) committed rape upon prosecutrix (name withheld to protect her identity), without her consent and criminally intimated her on the point of gun with threat to kill her and her daughter. Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 3 of 36 ::-
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CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 19.04.2003 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 17.11.2003 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 08.01.2013 vide circular number 87122-157/5912/F.3(4)/ASJ/Gaz/08 Dated 20.11.2008 of the learned District and Sessions Judge, Delhi.
CHARGE
6. After hearing arguments, charge for offence under sections 376/506/34 IPC was framed against the accused Mr. Dilshad by the learned predecessor on 18.07.2007.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as 23 witnesses i.e. PW1 is the prosecutrix; PW2 Mr.Mahabir Prasad Pathak, Managing Director, FSS, PW3 HC Omkar Nath is Chance Print Expert; PW4 Dr. Preeti, Specialist OBS and Gynae, who examined the prosecutrix, PW5 is Ct. Atul who had taken the rukka and copy of the FIR to the IO SI Sudesh Nain, PW6 Ct. Ravinder Kumar is Photographer, PW7 is HC Ram Hari Pathak, a witness of investigation; PW8 is Ct. Ravinder Kumar who has taken photographs of the spot; PW9 is ASI Ram Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 4 of 36 ::-
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Kumar who is duty officer who had recorded the formal FIR of the case; PW10 is HC Chander Pal who is the MHC (M); PW11 is WSI Sudesh Nayan is the IO; PW12 is Mr. Virender Kumar Sharam, Collection Clerk, District Co-operative Society, District Bijnaur who produced the appointment letter of accused Zafaryab Ahmed; PW13 is Inspector Naresh Kumar is also an Investigation Officer; PW14 is Ct. Sushil deposed about 6-7 FIRs in which the complainants were Dilshad, Zafaryab and Shama Praveen;, PW15 ACP Rajpal Singh is also an Investigation Officer; PW16 is Ct. Mukesh who had taken the rukka to the PS for the registration of the case; PW17 Dr. Sunil, who identified the handwriting and signature of Dr. Avneesh Gupta who had medically examined accused Mr.Dilshad; PW18 Mr.Kamal Bandhu, Ahlmad who produced the TIP/164 register; PW19 Retd. ACP J. S. Joon who had also investigated the present case; PW20 HC Sunil Kumar had deposited the pullandas at FSL, Malviya Nagar; PW21 is Mr.Shahzad Ahmed, brother of the accused, PW22 is Mr.Gurdeep Singh Saini, learned ASJ, Karkardooma Court, who while as Metropolitan Magistrate had recorded the statement of prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.); and PW23 is Inspector Ramesh Chandra who has also conducted investigation in the present case.
STATEMENT OF THE ACCUSED DILSHAD UNDER SECTION 313 OF THE CR.P.C.
8. In his statement under section 313 of the Cr.P.C., accused Mr.Dilshad has controverted and rebutted the entire evidence against him submitting that he is innocent and he has been falsely implicated in this Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 5 of 36 ::-
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case in connivance with Mr. Shakir (Jija of the accused) as well as under
his threat. Accused Mr.Dilshad has not preferred to lead any evidence in his defence.
ARGUMENTS
9. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
10. The Additional Public Prosecutor for the State has requested for convicting the accused Dilshad for having committed the offence under sections 376, 506, 34 of the IPC and submitting that the prosecution has been able to bring home the charge against the accused Mr.Dilshad by examining its witnesses whose testimonies are corroborative and reliable.
11. The counsel for accused Mr.Dilshad, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused persons on the record.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
12. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 6 of 36 ::-
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made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
13. Under this sphere, I now proceed to test the submissions of both the sides.
Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 7 of 36 ::-
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CASE OF THE PROSECUTION, ALLEGATIONS AND
DOCUMENTS
14. The prosecution story unveils with the prosecutrix and her husband going to PP Yamuna Pusta, where her statement (Ex.PW1/A) was recorded, on the basis of which endorsement/rukka (Ex.PW13/A) was written and FIR (Ex.PW7/B and Ex.PW9/A) was lodged by ASI Ram Kumar, Duty Officer (PW9) and Ct.Atul (PW5) was sent with the rukka and copy of the FIR to deliver the same to SI Sudesh Nain. SI Naresh (PW13) and HC Ram Hari Pathak (PW7) reached the spot and one mat (Ex.P2) and mattress/bed sheet/chaadar (Ex.P3) were seized vide seizure memo (Ex.PW1/B). Crime team comprising of SI Tilak, HC Omkar Nath (PW3) and Photographer Ct. Ravinder (PW6 as well as 8) also reached the spot and the photograph (Ex.PW8/A to 8/C) with negatives (Ex.PW8/D to F) were prepared. Site plan (Ex.PW11/A) was prepared at the instance of prosecutrix. Chance prints could not be lifted as per the report (Ex.PW3/A). The prosecutrix was taken by SI Sudesh Nain to LNJP Hospital where she was medically examined by Dr. Preeti (PW4) vide MLC (Ex.PW4/A) and her three slides and clothes i.e. pajami and blood were seized vide seizure memo (Ex.PW7/A). On 22.01.2003, SI Sudesh Nain received information through SI Naresh that accused Mr.Dilshad would appear in the Court at Tis Hazari and on the basis of secret information and on the pointing out of the secret informer he was apprehended from the St. Stephen Hospital bus stand vide arrest memo (Ex.PW11/B) and his personal search was conducted vide personal memo (Ex.PW11/C). Accused Mr.Dilshad was medically examined at LNJP Hospital by Dr. Avnish Gupta (left the hospital) vide MLC (Ex.PW17/A) Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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which has been proved by Dr. Sunil (PW17) and two pullendas containing clothes i.e. under wear and blood sample were taken by the doctor, which were seized vide seizure memo (Ex.PW11/D). Accused Mr.Dilshad took the police team to Indira Colony and pointed out the spot of incident vide pointing out memo (Ex.PW11/E) and made his disclosure statement (Ex.PW11/F). The statement of the prosecutrix under section 164 of the Cr.P.C (Ex.PW22/F) was got recorded from Mr. Gurdeep Singh Saini, learned Metropolitan Magistrate (PW22) and certificate regarding correctness of his statement was made (Ex. PW-22/G) on the application (Ex.PW15/A) of ACP Rajpal Singh (PW15). On the application of the IO for conducting TIP of the accused, his statement (Ex.PW22/A) was recorded that he shall not change his appearance by shaving or cutting hair. The TIP was postponed vide proceedings (Ex.PW22/B) as the witness was unwell. Another application (PW15/B) for TIP of the accused was moved on which order (Ex.PW22/C) was passed and the TIP proceedings (EX.PW1/C) was conducted. The certificate regarding correctness of the proceedings (Ex.PW22/B) was recorded. The proceedings were ordered to be sent to the office of learned CMM in sealed cover vide order (Ex.PW22/E) and copy of the proceedings were given to the IO on application(Ex.PW15/C) vide order (Ex.PW22/E). Mr.Aftab Ahmed, father of co-accused Zafar Yab (PO) produced copies of seven FIRs of PS Kotwali, Bijnore (Mark P-15-B collectively) which were seized vide seizure memo (Ex.PW15/E). ACP J.S.Joon (PW19) recorded the statement (Ex.PW19/A) of Mr.Shezad, brother of the accused (PW21) and recorded the statement of the prosecutrix under section 161 of the Cr.P.C (Ex.PW19/B) on moving an application before the learned CJM, Bijnore. Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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IO SI Sudesh Nain (PW11) deposited five pullandas along with sample seal on 05.01.2003 in the malkhana with the Malkhana Moharar HC Chander Pal (PW10) vide entry number 3042 in register number 19 (EX.PW10/A). On 22.01.2003, two envelopes and two sample seals were deposited vide entry no. 3097 in register no.19 (Ex.PW10/B). On 18.02.2003, the entire case property was sent to FSL through Ct. Sunil Kumar (PW20) vide RC No.317/21 of register number 21 (Ex.PW10/X) and corresponding entry was made in Ex.PW10/A. On 14.08.2003, seven sealed parcels and one sealed pullenda were received through SI Ramesh Chand (PW23) vide entry in register no.19 in (Ex.PW10/A). On 14.08.2003, the report was received and entry was made in (Ex.PW10/A). Mr.Mahabir Prasad Pathak (PW2) issued a certificate (Ex.PW2/A) that he had 135 citations to appear issued by the Tehsildar which he went to serve on 04.01.2003 along with his staff, Mr.Hukum Singh and Vigyan Prakash in an official jeep driven by Mr.Shaukat and Mr.Zafaryab Kurk Amin and one helper went into the area of their Samiti. The log book (Mark P-15-A) of jeep UTG-392 was seized vide seizure memo. The log book (Mark P-15-A) of jeep UTG-392 was seized vide seizure memo (Ex.PW15/D). The appointment letter (Mark P-12-A) of co-accused Zafar Yab was seized vide seizure memo (Ex.PW12/A). The case property i.e. pajami (Ex.P1), chatai (Ex. P2), bedsheet (Ex. P3), bandage containing blood sample (Ex.P4), underwear of accused (Ex. P5), blood sample of prosecutrix (Ex. P6), blood sample of prosecutrix (Ex. P7), blood sample of prosecutrix (Ex. P8), female pajami hosiery (Ex. P9) and vaginal smear slide (Ex. P10) were produced and proved in the evidence of prosecution witnesses.
Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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15. The allegations against accused Mr.Dilshad are that on 04.01.2003 at about 10:15 p.m at jhuggi no.C-24A-218, near Yamuna River, Indira Colony, Yamuna Pusta, Delhi, he alongwith co-accused Zafar Yab (declared P.O in this case) committed rape upon the prosecutrix without her consent. He criminally intimidated to prosecutrix on gun point to kill her and her daughter. He and co-accused (Zafar Yab-PO) were friends of Mr.Shahdab, the husband of the prosecutrix, and had told him that they would get a loan of Rs.1 lac sanctioned for him and had demanded Rs. 5,000/- for the same. On 04.01.2003, accused Mr.Dilshad along with co- accused Zafaryab (P.O) went to the jhuggi of the prosecutrix and enquired about her husband who was their friend and as he was away for plying rickshaw, they preferred to wait inside the jhuggi and asked the prosecutrix to prepare tea for them. While the prosecutrix was preparing the tea, accused Mr.Dilshad took out a pistol and told her to lie down on the bed sheet over the chatai. Accused Mr.Dilshad also put the pistol on the forehead of the daughter of prosecutrix and threatened that he would kill her daughter if she raised alarm. After raping the prosecutrix, accused Mr.Dilshad along with co-accused Zafaryab (P.O) went away from the jhuggi on the motorcycle. On return of her husband at about 11.30 pm, the prosecutrix disclosed about the incident to him and he told about the same to their land lady who advised them to lodge a complaint.
IDENTITY OF THE ACCUSED
16. There is no dispute regarding the identity of accused Mr.Dilshad who has been identified by the prosecutrix. It is also not in dispute that they were known to each other prior to the lodging of the FIR. Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 11 of 36 ::-
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He is also named in the FIR.
17. Therefore, the identity of accused Mr.Dilshad stands established.
AGE OF THE PROSECUTRIX
18. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint (Ex.PW1/A), the prosecutrix has stated her age as 20 years. In her statement under section 164 of the Cr.P.C. (Ex.PW22/F), the prosecutrix has stated her age as 20 years. In her evidence before the Court on 12.12.2007, the prosecutrix has stated her age as 27 years which indicates that her age in the year 2003 was 23 years.
19. Therefore, it is clear that the prosecutrix was above 18 years of age (major) at the time of the alleged incident.
VIRILITY OF THE ACCUSED
20. Accused Mr.Dilshad has been medically examined by Dr.M.Das (PW10) vide MLC (Ex.PW17/A) wherein it is opined that "There is nothing to suggest that he is incapable of performing sexual intercourse)"
21. This report indicates that accused Mr.Dilshad is virile and is capable of performing sexual act and is capable of committing the act of Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
State versus Dilshad. -:: Page 12 of 36 ::-
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rape.
MLC OF THE PROSECUTRIX AND FSL REPORTS
22. The MLC of the prosecutrix (Ex.PW4/A) which is dated 05.01.2003 shows in the history that "Alleged H/O Raped by Jafaryab R/O Bijnor who is friend of husband at around 10.00 pm on 4/1/03 when her husband was not at home. Pt has not changed the clothing/ Not washed the parts". There is also mentioned that "No evidence of External injury". There is no mention of any injury on her private parts.
23. The FSL expert has not been examined by the prosecution nor the FSL report has been proved.
24. These facts indicate that her version regarding her being raped are false as had she been actually raped, she would have received some injuries, maybe minor and the FSL reports would have shown the presence of semen. When semen is not connecting the accused to the crime, there cannot be any conviction. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
25. Therefore, it is clear that there is no medical nor forensic evidence against the accused to indicate that he has raped the prosecutrix.
26. However, medical and forensic evidence are only for the purpose of corroboration and solely on the ground of lack of such Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
DELAY IN FIR
27. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
28. It is claimed by the accused that the FIR has been lodged on 05.01.2003 at 02.40 hours while the allegations made by the prosecutrix are that she was raped on 04.01.2003 at 10.15 pm, the same show that the delay is fatal. The delay in lodging of the FIR has been not explained by the prosecution.
29. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the fear of the accused and could not lodge the FIR immediately. She waited for her husband to return and then she told him about the incident. He consulted their landlady who advised them to lodge the case.
30. As per the complaint, Ex.PW1/A which is made on 05.01.2003 at 2.25 am, it is mentioned that the prosecutrix was raped on 04.01.2003 at 10.15 pm. Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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31. The prosecutrix in her MLC (Ex.PW4/A) dated 05.01.2003 in the history has mentioned that she was sexually assaulted on 04.01.2003 at 10 pm.
32. The prosecutrix in her statement under section 164 of the Cr.P.C. (Ex.PW3/B) has mentioned that the accused Zafaryab (PO) had raped her on 04.01.2003 at 9-9.30 pm.
33. The prosecutrix in her evidence before the Court has deposed that the accused Zafaryab (PO) had raped her on 04.01.2003 at 10 am.
34. The FIR has admittedly been lodged on 05.01.2003 at 02.40 hours.
35. It may be mentioned here that a logical explanation has been furnished by the prosecution regarding what was the reason of the prosecutrix to wait till 05.01.2003 at 02.40 hours to make her complaint to the police when the incident occurred on 04.01.2003 at 10 pm (The contradiction in the time of incident shall be discussed while discussing the evidence of the prosecutrix). The claim that she was threatened by the accused, she waited for her husband to return from work, told him about the incident, he consulted the landlady who advised them to lodge the complaint, and then they went to the Police Station and made the complaint, etc. are a sequence of events which explain the tiem gap very reasonably.
Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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36. Therefore, it cannot be said that the FIR was lodged after a delay which is fatal to the prosecution story.
EVIDENCE OF THE PROSECUTRIX AND HER STATEMENTS
37. PW1, the prosecutrix, has deposed on oath that in the year 2003, she was residing with her husband and three children in a jhuggi at Dholak Basti, Yamuna Pusta. They were residing in that jhuggi for two months prior to the incident. Her husband was a rickshaw puller at that time and used to come at the jhuggi in the afternoon time for taking meals. Thereafter, he used to leave for plying rickshaw and used to return to the jhuggi at about 9.00 to 9.30 pm. Two friends of her husband namely Mr.Zafaryab and accused Mr.Dilshad used to visit their jhuggi quite often. They used to tell her husband that they would get loan of Rs. 1,00,000/- sanctioned for her husband and they were demanding Rs. 5,000/- for the same. She did not know in what manner that amount of Rs. 5,000/- would be refunded to her husband.
38. In the year 2003, on 4th day of the month which she does not remember at about 7.00 am, her husband had gone out of jhuggi to ply rickshaw. At about 10.00 am, accused Mr.Dilshad came along with Mr.Zafaryab on a black motorcycle to her jhuggi and asked her about her husband, she told them that her husband is not at home. They asked her as to when her husband would come. She told them that her husband has no fixed time. They entered her jhuggi saying that they would wait for her Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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husband and thereafter, asked her to prepare tea for them. At that time, her children were sleeping. She started preparing tea for them by lighting the stove. In the meanwhile, accused Mr.Dilshad took out a small pistol and on the point of that pistol, he told her to lie down at the place where she was sitting to prepare tea. She was frightened and accused Mr.Dilshad put that pistol on the kanpati of her daughter and threatened that he would kill her daughter in case, she will raise alarm. Thereafter, Mr.Zafaryab took out her salwar and raped her. After committing rape, Mr.Zafaryab told accused Mr.Dilsahd also to rape her but he refused to do so apprehending that somebody may come there. Accused Mr.Zafaryab made her to lie on bedsheet and there was a chatai beneath that bedsheet, on which, he raped her. After raping her, both accused Mr.Dilshad and Mr.Zafaryab went away from her jhuggi on motorcycle. She was frightened and nervous at that time and she was not in a condition to think what to do. She waited for her husband to come. Her husband returned at their jhuggi at about 11.30 pm. She started weeping immediately on seeing him. Her husband asked her as to why she was weeping. She told him the whole incident. Her husband narrated about this incident to their landlady and she advised them to lodge complaint against both of them. She alongwith her husband reached PP Yamuna Pusta where they met Incharge there, who recorded her statement (Ex. PW1/A). Police officials reached their jhuggi on the same day. On her pointing out, they seized bed sheet and chatai (mat) having some spots by putting them in a white cloth and police officials also put some seal on that parcel and prepared some papers (Ex. PW1/B). She was taken to the PS and from there, one lady police took her to Lok Nayak Hospial. She was medically examined there and doctor took her Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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blood as well as her salwar, which she was wearing at that time. She was wearing the same salwar at that time of incident. After few days, she was produced before the Magistrate and her statement was recorded before the Magistrate. On 19.02.2003, she had gone to Tihar Jail at the instance of police officials and identified the accused Mr.Dilshad before the concerned Magistrate in Tihar Jail amongst many persons present there vide the TIP proceedings (Ex. PW1/C). During the course of investigation of this case, her husband was pressurised by accused persons to get this case withdrawn by her. Accused persons had even lured her husband that they would give him Rs. 1,00,000/- if he left alongwith her to some unknown place. She refused to withdraw from this case and refused to go with her husband. On this, her husband became annoyed and got her implicated falsely in several cases. After about 4-5 months of the incident, her husband took her to Bijnaur at the house situated near Iedgah in Bijnaur. In fact, accused persons were not residing there and that house was lying vacant and some old articles were lying there. She was threatened there by accused persons and her husband since her husband had got mixed up with the accused persons. There, she was also falsely implicated in several cases. Once, after the incident, accused Mr.Zafaryab, Mr.Aftab and Mr.Mehtab kidnapped her daughter Gulnaz, who was aged about 5 years at that time and kept her at the house of one of their relative and she received back the custody of her said daughter with the intervention of Magistrate. Even, her son Shahrukh was also taken by her husband without her consent and kept him in the custody of one Kanwar Ahmed in order to pressurise her to withdraw from this case. She is still being pressurised by the accused persons to withdraw from this case and she is being told that they would Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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withdraw the cases against her, if she withdraws her case against them. She identified her pajami as Ex. P1, chatai as Ex. P2 and bed sheet as Ex. P3. She also identified the photographs of her jhuggi as Mark A1 to A3. She has been cross examined at length.
39. On careful perusal of the different statements of the prosecutrix, it transpires that she has made several overwhelming contradictions and glaring discrepancies which make version unreliable and strike at the root of the prosecution case and are fatal blemishes which can not be ignored. Some of the major contradictions are tabulated herein below.
EVIDENCE STATEMENT COMPLAINT
UNDER SECTION (EX.PW1/A)
164 CR.P.C.
(EX.PW22/F)
Place of incident is Place of incident is Place of incident is
jhuggi at Dholak Basti, jhuggi at nav Kakal, Jhuggi No.C-24-A,
Yamuna Pushta Indira Colony, Yaminu near Yaminua River,
Pushta Indira Colony, Yaminu
Pushta
Zafaryab and Dilshad Zafaryab and Dilshad Zafaryab and Dilshad
came at about 10 am came at 9-9.30 pm came at 10 pm
Zafaryab and Dilshad Zafaryab asked her to Zafaryab asked her to
asked her to prepare tea prepare tea. prepare tea.
Dilshad took out a Dilshad put a katta on Dilshad put a katta on
pistol and at the point her forehead and her forehead and
of pistol, told her to lie threatened her and threatened her.
down at the place she made her lie down Zafaryab made her lie
was preparing tea. down
Dilshad put pistol on Dilshad then put a katta No such statement
the forehead of her on forehead of her
Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003
FIR No. 11/03, Police Station Kotwali,
Under sections 376, 506-B, 34 of the Indian Penal Code.
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daughter and daughter
threatened to kill her
daughter
Zafaryab took out her Zafaryab removed her Zafaryab lowered her salwar salwar salwar No such statement Zafaryab removed his Zafaryab removed his jeans pant jeans pant and underwear Rape committed in the Rape committed by Rape committed by morning at about 10 Zafaryab at night at 10 Zafaryab at night.
am pm When Zafrayab told When Zafrayab offered When Zafrayab offered Dilshad to rape the Dilshad to rape the Dilshad to rape the prosecutrix, Dilshad prosecutrix, Dilshad prosecutrix, Dilshad refused saying refused saying asked him to leave someone may come someone may come saying someone may come Husband returned at Husband returned at Husband returned at about 11.30 pm. about 1 am. about 1 am.
40. There are some more unexplained contradictions in the evidence of the prosecutrix qua her own statement and in comparison with evidence of other witnesses.
41. It may be mentioned her that the prosecutrix in her complaint, statement under section 164 of the Cr.P.C. as well as her evidence has stated that she was wearing a salwar at the time of incident which had been removed/lowered by accused Zafaryab at the time of committing rape. However, it is not a salwar which was produced in the Court but a pajama (Ex.P1) which has also been identuified by her. The MLC (Ex.PW4/A) shows that a yellow coloured pyjama was taken by the doctor from the prosecutrix.
Sessions Case Number : 35 of 2013.
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42. Therefore, there is a contradiction in the clothes worn by the prosecutrix at the time of the incident, whether it was a salwar or a pajama and this contradiction has not been explained by the prosecution.
43. Further the place of incident is also differently mentioned in the different statements of the prosecutrix. She has admitted that "The Dholak Basti, Indira Colony are different streets at Yamuna Pusta but when the complaint was lodged in the PS, the address of Dholak Basti was given.". The prosecution has not been able to give a clear picture about the exact and correct place of the alleged incident.
44. A fatal blemish in the prosecution version is about the time of incident. In her complaint, the prosecutrix has mentioned the time of incident as 10pm, in her statement under section 164 Cr.P.C as 9-9.30 pm and in her evidence as 10 am. There is not just a contradiction in the time but also in the morning and night. This contradiction is also not explained by the prosecution.
45. PW11, SI Sudesh Nayan, IO, has deposed that the site plan (Ex.PW11/A) was prepared at the instance of the prosecutrix but on careful perusal of the same, it transpires that the same does not bear the signatures of the prosecutrix which indicates that she may not be present when the site plan was prepared.
46. The prosecutrix, in her examination in chief has deposed about Sessions Case Number : 35 of 2013.
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the accused persons getting a loan of Rs.1 lac sanctioned for her husband and their demainding Rs.5,000/- for the same. However, in her cross examination, she has deposed that "I did not state before police at police chowki that Zafryab and Dilshad used to tell my husband that they would get a loan of rupees one lac sanctioned for my husband and they were demanding rupees five thousand for the same. It is correct that the talks with respect to this amount of loan took place in the chamber of Advocate Shri Usman Chaudhary but it is wrong to suggest that this talk took place on 05.01.2003. Vol. This talk took place to lure me to withdraw this case and I can not tell the time of this talk and the day."
47. She has denied filing a complaint before the learned Court of ACJM at Najibabad, UP vide complaint case No. 318/04 under secton 352/504/506 IPC PS Najibabad titled as Shahina @ Rubi Vs. Javed @ Naushad or also making her voluntary statement before the Ld. Concerned Court at Najibabad (Bijnaur) wherein voluntary stated that the accused present in Court and his other family members were falsely implicated by her in three cases including present case. However, this part of her deposition is untrue as the certified copy of complaint along with supporting affidavit is Ex. PW1/DA (containing seven pages) and certified copy of statement of this witness, Ex. PW1/DB (containing four pages) were produced by the accused.
48. On one hand, the prosecutrix has deposed that "I do not know any person namely Shakir." but on the other hand she has admitted that "It is correct that my daughter Gulnaz was recovered from one person Sessions Case Number : 35 of 2013.
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namely Shakir."
49. The claim of the prosecutrix that she was raped by accused Zafrayab (PO) appears to be wrong as she has deposed that "My landlady was sleeping in the adjacent jhuggi. It is correct that in between our portion and portion of landlady, there is one fencing of tripal with polythene." It is not possible that the landlady would not have heard anything wrong happening in the adjoining jhuggi when there is only a fencing of tripal with polythene in between.
50. It is also clear from the cross examination of the prosecutrix that she is an accused in several criminal cases and has also been convicted, a fact which she had not disclosed in her complaint, statement under section 164 of the Cr.P.C. as well as her examination in chief. This fact may not affect this case as she is an alleged victim but it does reveal her character.
51. The prosecutrix has made several improvements in her evidence before the Court and her different statements suffer from several contradictions.
52. No explanation is coming forth from the prosecution regarding these very material contradictions which strike at the root of the prosecution case and are fatal blemishes which can not be ignored.
53. The prosecution has failed to furnish any explanation in respect Sessions Case Number : 35 of 2013.
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of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.
54. Also, regarding the alleged threat by accused Mr.Dilshad to the prosecutrix and putting a katta/pistol on her forehead, it may be mentioned that for an offence under section 506 of the IPC, the impact of the alleged threat should be such that the victim is unable to even seek help. However, in the present case, neither the alleged weapon of offence has been recovered nor apparently, the threat was of such nature where she would feel scared as she did go to the Police Station to lodge the complaint. In her complaint and statement under section 164 of the Cr.P.C. the prosecutrix has stated that accused Mr.Dilshad threatened her saying "sare daane under kar dunga" but she has not deposed about the words in her evidence nor mentioned about their impact. This fact shows that there is a strong possibility of the version of the prosecutrix being untrue.
55. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Sessions Case Number : 35 of 2013.
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Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence 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 witness."
56. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
57. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
58. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
59. If one integral part of the story put forth by a witness- prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
60. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376/34 and 506 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was raped or threatened by the accused.
61. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Sessions Case Number : 35 of 2013.
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Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
62. This brings me to the final question as to whether it was she was confined, threatened and raped by the accused. In this regard it is no doubt true that in her statement before this Court she has stated so but there are several contradictions in her different statements which remain unexplained and indicate that no such offence was ever committed by accused Mr.Dilshad.
63. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
64. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
65. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
66. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offences of threat and rape and the accused Mr.Dishad merits to be acquitted for the offences under sections 376/34 and 506 of the IPC.
NO RECOVERY FROM ACCUSED DILSHAD
67. It is clear on perusal of the material on record, that there is nothing incriminating recovered from the possession of accused Mr.Dilshad. As per the version of the prosecutrix, he was armed with katta/ pistol but neither any katta nor any pistol nor any other arm has been recovered from the possession of accused Mr.Dilshad or at his instance.
68. This fact indicates that the possibility of false implication of accused Mr.Dilshad cannot e completely ruled out.
Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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ACCUSED ZAFARYAB (PO) ON DUTY
69. It is clear from the evidence of the prosecution witnesses especially PWs 2, 12 and 23 that accused Zafaryab was on duty serving citations issued by the Tehsildar to the defaulters in area of Samiti at Bijnaur. In such a situation, when accused Zafaryab was not in Delhi but doing his duty in UP, it was not possible that accused Mr.Dilshad came with accused Mr.Zafaryab to Delhi to the jhuggi of the prosecutrix to commit the alleged offence.
PUBLIC AND MATREIAL WITNESSES NOT EXAMINED
70. The prosecution has failed to examine some materaila and public witnesses.
71. First of all, the husband of the prosecutrix, to whom the prosecutrix had disclosed about the alleged offence has neither been produced nor examined by the prosecution. His evidence could have given some corroborative support to the prosecutrix.
72. The daughter of the prosecutrix, who was in the jhuggi, also could have been a material witness and could have thrown some light on the alleged incident but even she has not been examined by the prosecution.
73. Further, Ms.Kishwar Jahan, the landlady of the prosecutrix, from whom PW11 IO SI Susesh Nayan had made enquiry (as admitted by Sessions Case Number : 35 of 2013.
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PW11) has neither been cited as a witness in the list of witnesses nor produced nor examined by the prosecution and no explanation is coming forth regarding the same.
74. No neighbor of the prosecutrix has been produced or examined by the prosecution who may have seen the accused persons coming to the jhuggi of the prosecutrix or leaving on the motorcycle.
75. No public witness has been associated at the time of arrest of accused Mr.Dilshad from bus stand near Tis Hazari Courts despite it being a public place with the public being available.
MENS REA / MOTIVE
76. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
77. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the Sessions Case Number : 35 of 2013.
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absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
78. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. Sessions Case Number : 35 of 2013.
Unique Case ID Number : 02401R0062322003 FIR No. 11/03, Police Station Kotwali, Under sections 376, 506-B, 34 of the Indian Penal Code.
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79. In the present case, a story has been projected that the accused Mr.Dilshad came with accused Mr.Zafaryab (PO) to the jhuggi of the prosecutrix where accused Mr.Dilshad threatened her and Mr.Zafaryab raped her. This version appears to be untrue especially considering the fact that the evidence of the prosecutrix herself is unreliable.
80. All these facts in totality indicate that there was no criminal intention and mens rea on the part of the accused persons.
INVESTIGATION
81. The investigation conducted in the present case has been deposed by police witnesses. The FIR has been proved by PW7. The MLCs of the prosecutrix and the accused have been proved by PWs 4 and
17. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
82. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.
83. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
Sessions Case Number : 35 of 2013.
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84. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
85. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
86. Since the prosecutrix as PW1 is neither reliable nor believable as there are overwhelming contradictions and glaring inconsistencies in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against accused Mr.Dilshad. The prosecution story does not inspire confidence and is not worthy of credence.
87. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish threat and rape by accused Mr.Dilshad. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
Sessions Case Number : 35 of 2013.
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88. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
89. Applying the above principles of law to the facts of present case, it is evident that the identity of accused Mr.Dilshad stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor when the alleged offence was committed. It also stands established that accused Mr.Dilshad had neither threatened her nor raped her. There is no incriminating evidence against accused Mr.Dilshad. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
Sessions Case Number : 35 of 2013.
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90. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was threatened and raped by accused Mr.Dilshad.
91. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Dilshad.
92. Accordingly, accused Mr.Dilshad is hereby acquitted of the charges for the offences of threat and rape under sections 376/34 and 506 of the IPC.
93. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
94. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
Sessions Case Number : 35 of 2013.
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95. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
96. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
97. After the expiry of the period of limitation for appeal, the file be consigned to record room. The file be revived as and when accused Mr.Zafaryab (PO) is apprehended.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 16th day of August, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 35 of 2013.
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