Delhi District Court
State vs Jitender on 29 November, 2017
IN THE COURT OF ANURAG SAIN, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH
EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS,
DELHI
SC No. 1471/16 Date of assignment : 28.07.2014
FIR No.245/14 Date on which arguments
PS: Harsh Vihar were heard : 23.11.2017
U/S:376(2)(n)/506(I) IPC Date of judgment : 29.11.2017
State Versus Jitender
S/o Sh. Bharat Singh
R/o D2/119, Pratap Nagar
Saboli, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 05.06.2014, the prosecutrix (her name is withheld to protect her identity) came to the police station Harsh Vihar and lodged a complaint against the accused. In the complaint, the prosecutrix stated as under:
(a) The prosecutrix along with her husband and child uses to reside on rent at the address mentioned in the complaint. Her husband uses to do embroidery work.
(b) In their street, the accused uses to reside and being neighbour, he uses to come off and on in the house of the prosecutrix.
(c) Around threefour months ago of the filing of the present complaint dated 05.06.2014, in the month of February, she was alone in the house and her husband had gone for work. During noon time, the accused came to the house of the prosecutrix and started talking with the prosecutrix. Thereafter, the accused bolted the door of the house from inside and by force, made physical relations with the prosecutrix against her will and without her consent.
(d) The accused threatened the prosecutrix that in case she disclosed the incident to anyone, he would defame her. Due to fear, the prosecutrix even did not disclose the incident to her husband.
(e) Thereafter also, the accused by force made physical relations with the prosecutrix repeatedly against her will and without her consent.
(f) After getting upset with the conduct of the accused, the prosecutrix disclosed the entire incident to her husband. When the husband of the prosecutrix enquired the same from the accused, the accused extended threat to her husband also and stated that nobody can do anything to him.
2. On the basis of the complaint of the prosecutrix, the present FIR under Sections 376/506 IPC was got registered against the accused at police station Harsh Vihar. The prosecutrix was got medically examined at Guru Teg Bahadur Hospital, Delhi on 05.06.2014 and her internal examination was also conducted. The police taken into possession the sealed exhibits given by the Doctors. The prosecutrix was produced before the Ld. Metropolitan Magistrate on 07.05.2014 and the statement of the prosecutrix under section 164 Cr.P.C. was got recorded. Accused was arrested and was got medically examined at Guru Teg Bahadur Hospital, Shahdara, Delhi on 07.06.2014. Doctor opined that there was nothing to suggest that the accused was not capable to perform sexual intercourse. The police taken into possession the sealed exhibits given by the Doctors. Samples collected during medical examinations of the prosecutrix and the accused were sent to Forensic Science Laboratory at Rohini vide RC No. 34/21/14.
3. After completion of investigation, the prosecution filed the chargesheet under Sections 376/506 IPC against the accused.
4. Since the major offence in this case was triable by the Court of Sessions, the learned Metropolitan Magistrate vide order dated 19.07.2014 committed this case to the Court of Sessions and on allocation, this case was assigned to this court.
5. Vide order dated 06.09.2014, a charge under Sections 376(2)
(n)/506(I) IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. In support of its case, the prosecution examined 14 witnesses.
7. PW1 HC Pawan Kumar is the duty officer who recorded the FIR in the present case and proved the same as Ex.PW1/A. He also made Kayami DD No.25A and endorsement regarding the same on the rukka exhibited as Ex. PW1/B.
8. The prosecutrix was examined as PW2 who deposed that the accused was residing in her gali after leaving 23 houses and being neighbour, accused often used to come to their house to meet and talk her husband.
9. She further deposed that in the month of February 2014 accused came to her tenanted room in the noon time when she was alone in the house as her husband had gone for his work of embroidery and accused started talking with her and asked about her husband. She told the accused that her husband had gone for his work at which accused told to her that he knew about the same. At which she asked him if he had some work with her husband at which accused told no.
10.She further deposed that after that immediately accused bolted the kundi of the room from inside, put his hand on her mouth and twisted one of her arm and forcibly removed her legging (pajami) and raped her (mera balaatkar kiya) by forcibly performing sexual intercourse with her. At that time, the accused threatened to defame her if she will disclose about this incident to anyone. After threatening her, accused went away from there.
11.She further deposed that in the night her husband came back to house but due to threat of the accused, she did not disclose anything to her husband.
12.She further deposed that after that later on accused on getting an opportunity used to come to her house and raped her several times. Due to activities of accused, she became upset. At one time, she had told the accused that she will make a complaint to police against him but he continued to harass her and raped her again and again. After that, the prosecutrix dared herself and told about the incidents to her husband who reached at the house of accused and had a talk with him to which the accused and his mother threatened her husband by saying that nobody can cause any harm to accused.
13.Thereafter, on 05.06.2014, the prosecutrix alongwith her husband went to police station Harsh Vihar and got recorded her complaint Ex. PW2/A. She was got medically examined vide MLC Ex.PW2/B and emergency registration card Ex.PW2/C. Site plan Ex. PW1/D was prepared at her instance. On 06.06.2014, the statement of the prosecutrix under Section 164 Cr.P.C. Ex. PW2/E was recorded. The prosecutrix handed over her original birth certificate to the investigating officer Ex.PW2/G which was seized vide seizure memo Ex. PW2/F.
14.The prosecutrix was cross examined on behalf of the accused. The cross examination of the prosecutrix shall be dealt with during findings of the case.
15.PW4 Dr. Ashutosh Mehta who was working as Junior Resident with GTB Hospital, Delhi deposed that on 07.06.2014, the accused produced before him for medical examination. On examination, he opined that there was nothing to suggest that the accused is not capable to perform sexual intercourse. This witness has proved the MLC of the accused as Ex.PW4/A.
16.PW5 Dr. Jyotsana, Senior Resident, GTB Hospital, Delhi deposed that on 05.06.2014, she medically examined the prosecutrix vide MLC already exhibited as Ex.PW2/B and collected the samples and handed over the same to the police official except the clothes of the prosecutrix. This witness was cross examined on behalf of the accused.
17.PW7 Head Constable Ramesh deposed that on 09.06.2014, MHC(M) handed over to him sealed exhibits vide RC No.34/21/14 and he deposited the same with FSL, Rohini.
18.PW8 Sh. Mehi Lal, Incharge, EDMC Pratibha Primary School, Mandoli ExtensionII, Shahdara, Delhi deposed that he was working as a Teacher at the aforesaid school since 2005. This witness brought the original admission form no.1586 pertaining to the accused wherein the date of birth of the accused is mentioned as 08.05.1994. The copy of the same has been proved as Ex. PW8/A. The copy of the admission register pertaining the accused has been proved as Ex. PW8/B. The photocopy of the birth certificate of the accused has been proved as PW8 Mark A.
19.PW9 Smt. Mamta W/o Sh. Ramji is the owner of the house where the prosecutrix was residing on rent at the time of alleged incident and has given the description of the property. This witness was cross examined on behalf of the accused.
20.PW10 Sh. Vijay Pal Singh, Sub Registrar, Birth and Death Department, Shahdara North Zone, EDMC, Delhi brought the birth and death register mentioning the date of birth of the prosecutrix as 17.05.1992. He further deposed that on 26.05.1992, the birth date of the prosecutrix was registered vide registration no.809 and proved the copy of the same as Ex. PW10/A.
21.PW11 Ms Geetanjali, Ld. Metropolitan Magistrate, Patiala House Court, Delhi had recorded the statement of the prosecutrix on 06.06.2014 under Section 164 Cr.P.C. and proved the same as Ex.PW2/E. She proved the other proceedings in this regard as Ex. PW11/A to Ex. PW11/D.
22.PW12 HC Abdesh Kumar deposed that on 05.06.2014, he was working as MHC(M) at PS Harsh Vihar and on the said day, W/SI Vinita handed over one sealed pullanda along with a sample seal to him for depositing the same in the Malkhana and the same was deposited vide entry no.1223/14 in Register no.19. He further deposed that on 07.06.2014, W/SI Vinita handed over three seal pullandas along with a sample seal to him for depositing the same in the Malkhana and the same were deposited vide entry no.1271/14 in Register no.19. He further deposed that on 09.06.2014, all the aforesaid sealed pullandas along with sample seal were sent to FSL, Rohini through constable Ramesh vide RC no.34/21/14. He has proved entries no.1223/14 and 1271/14 which have been exhibited as Ex.PW12/A. He has also proved RC no.34/21/14 in register no.21 as Ex. PW12/B.
23.PW13 is the husband of the prosecutrix who deposed that on 3 rd or 4th June, 2014, the prosecutrix told him that the accused used to come to their house and had been raping her for the last three or four months; used to threaten her; initially due to fear of the accused, she did not disclose the incident to him. Thereafter, he along with the prosecutrix went to the police station Harsh Vihar and on the statement of the prosecutrix, FIR was registered. Therafter, the prosecutrix was medically examined d GTB Hospital and the investigating officer recorded his statement. This witness was cross examined at length on behalf of the accused.
24.PW14 SI Vinita is the IO of the case who deposed that on 05.06.2014, the prosecutrix and her husband came to the police and the prosecutrix disclosed the incident, she was medically examined at GTB Hospital by her along with W/Constable Shakuntla and Constable Surender. Doctor handed over one sealed pullanda along with sample seal to W/Ct. Shakuntala. Counselling of the prosecutrix was conducted from NGO person namely Saroj. Statement of the prosecutrix was recorded by her already exhibited as Ex. PW2/A. She prepared rukka Ex. PW14/A and handed over the same to Ct. Surender for getting the case registered who after sometime came back and handed over the copy of FIR and rukke to her. In the meantime, she along with prosecutrix , her husband and W/Ct. Shakuntala went to the spot and she prepared the site plan at the instance of the prosecutrix already exhibited as Ex. PW2/D. She seized the original birth certificate handed over by the prosecutrix vide seizure memo already exhibited as Ex. PW2/F and the original birth certificate already exhibited as Ex. PW2/G. She recorded the statement of the prosecutrix and thereafter they came back to the police station. W/Ct Shakuntala handed over to her one sealed pullanda along with sample seal pertaining to the prosecutrix which was seized vide seizure memo already exhibited as Ex. PW3/A. The same property was deposited in the Malkhana. She recorded the statement of the constable Surender and W/constable Shakuntala.
25.She further deposed that on 06.06.2014, the statement of the prosecutrix under Section 164 Cr.P.C. was recorded by the ld. Metropolitan Magistrate on her application already exhibited as Ex. PW11/A and she obtained the copy of the same.
26.On 07.06.2014, she along with husband of the prosecutrix and constable Rahul reached at the house of the accused and the accused was arrested vide arrest memo already exhibited as Ex. PW6/A and his personal search was conducted vide personal search memo already exhibited as Ex. PW6/B. The accused handed over photocopy of his marksheet of class V and class X which were seized vide seizure memo Ex. PW14/B, marksheet of class X marked as PW14 Mark A and class V marked as PW14 Mark B. Age memo of the accused was prepared vide Ex. PW14/C. Accused made his disclosure statement already exhibited as Ex. PW6/C. Accused was got medically examined at GTB Hospital and the doctor handed over three sealed pullandas along with one sample seal to Ct. Rahul who handed over the same to her after reaching the police station which was seized vide seizure memo already exhibited as Ex. PW6/B. The accused was kept in the lockup of Nand Nagri police station as the Harsh Vihar police station does not have the lock up. Case property was deposited in the Malkhana. During investigation, she recorded the statement of the witnesses. Case property was sent to FSL Rohini for chemical examination and the report of the FSL is exhibited as Ex. PW14/D. After completion of investigation, she filed the chargesheet. She was cross examined on behalf of the accused.
27.PW3 W/Constable Shakuntla and PW6 Constable Rahul are the witness who joined the investigation of the present case on 05.06.2014 and 07.06.2014 respectively along with IO SI Vinita. Both these witnesses were cross examined on behalf of the accused.
28.On 24.03.2017, on the request of the Ld. Addl. Public Prosecutor, prosecution evidence was closed.
29.After closing of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he has stated that he is innocent; He had given Rs.20,000/ to the husband of the prosecutrix as a friendly loan without any interest for two or three months and when he demanded the said loan amount, the husband of the prosecutrix refused to make payment of the said loan amount; The husband of the prosecutrix in collusion with the prosecutrix and the police officials has falsely implicated him in the present case; He never went to the house of the prosecutrix as alleged by her as he always used to remain present in his office; He has been falsely implicated in the present case and he has not committed any offence.
30.The accused opted to lead defence evidence and examined Sh. Mahendra Singh, Manager Compliance, Delhivery Pvt. Ltd. having its office at Gurgaon, Haryana as DW1 who deposed that the original identity card issued to the accused being contract employee (photocopy exhibited as Ex.DW1/A) has been issued by their company. The job of the accused was to pick the goods from delivery centre and to deliver the same to the buyers. This witness was cross examined by Ld. Addl. PP for the state.
31.I have heard Sh. Arun Kumar, learned Additional Public Prosecutor and Sh. Hasib Siddiqui, learned counsel for the accused.
32.Ld.Addl. Public Prosecutor argued that the case against the accused stands established beyond any reasonable doubt. He further argued that the accused has failed to show any motive on the part of the prosecutrix to make such allegations against the accused which can cast stigma on her self esteem.
33.On the other hand, ld. Counsel for the accused argued that the case of the prosecution has not been proved. He further argued that the accused is not guilty of committing any offence much less the offences for which he has been charged in the present case. He further argued that there are material contractions in the testimony of the prosecutrix and the other prosecutrix witnesses and also the testimony of the prosecutrix also suffered from various inconsistencies. He further argued that the testimony of the prosecutrix is not reliable and trustworthy and prayed for the acquittal of the accused in the present matter.
34.Before coming to the case of the prosecution, the defence which the accused has projected in his statement under Section 313 Cr.P.C. is to be considered. Perusal of the statement under Section 313 Cr.P.C. shows that the accused has taken two defences. As far as the first defence is concerned, at the outset, I may state that except the bald averments made by the accused that he is innocent and that he has advanced a friendly loan of Rs.20,000/ without interest to the husband of the prosecutrix and when he remanded back the same, the husband of the prosecutrix refused and the husband of the prosecutrix in collusion with the prosecutrix and the police officials falsely implicated him in the present case, nothing has been placed on record or proved by the accused to show that he had advanced a friendly loan of Rs.20,000/ as stated above to the husband of the prosecutrix at any point of time.
35.The second defence which the accused has taken in his statement under Section 313 Cr.P.C. is that the accused always used to remain present in his office and never went to the house of the prosecutrix as alleged by her. He stated that he was employed with the private company namely Delhivery Courier Service which was situated at Gali No.1,Om Nagar, Ghaziabad, Uttar Pradesh. His duty hours were from 8:00 a.m. to 6:00 p.m.; He joined the services with that courier service company on 02.01.2014 and he worked there till 06.06.2014; Sometimes, he used to remain on duty on holidays for which he used to get extra money from his office. He also used to do extra work after his duty hours at her office for which he used to get overtime amount.
36.To substantiate his version, the accused has examined Sh. Mahendra Singh, Manager (Compliance) of Delhivery Pvt. Ltd. having office at Gurgaon, Haryana as DW1. By examining DW 1, the accused has tried to prove his innocence that he never gone to the house of the prosecutrix as he always remains present in the office and has no time. This witness was cross examined by the Ld. Addl. PP for the State. During cross examination, the testimony of this witness has been completely demolished on behalf of the state inasmuch as, during cross examination, this witness has categorically deposed that the company does not maintain the attendance register of the contract employees and admitted that no contract was executed between their company and the accused and that the accused had not worked under his supervision at any point of time. Except the identity card of the accused exhibited as Ex. DW1/A, there is no document on record worth the name to prove that the accused always remains present in the office. Thus, the testimony of this witness is of no help to the accused. Moreover, it is highly unbelievable that an employee always remains present in the office all the time and has no time to do other works. Hence the defence taken by the accused is not probable.
37.However, it is no part of the accused that if he fails to prove his defence than the case of the prosecution stands proved. The prosecution has to establish the case beyond reasonable doubts. The prosecution cannot take the benefit from the weakness of the defence of the accused. 1t is a settled proposition of law that onus to prove the case is always upon the prosecution and it never shifts.
38.In a case titled as Narender Kumar vs. State (NCT) (2012) 7 SCC 171, the Hon'ble Supreme Court of India observed that: "29.However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However, great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. {Vide Tukaram vs. State of Maharashtra [ (1979) 2 SCC 143] and Uday vs. State of Karnataka [(2003) 4 SCC 46]}.
30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecurix is found to be improbable, the prosecutrix's case becomes liable to be rejected."
39.The case of the prosecution is based on the statement of the prosecutrix. The law relating to the evidentiary value of deposition of the victim of offence of rape is well settled. A prosecutrix in a rape case is a victim of the offence and not an accomplice. Conviction in such a case can be based on an uncorroborated and unsubstantiated testimony of the prosecutrix if her deposition inspires high confidence.
State
40.The Hon'ble Supreme Court of India in a case titled as of Punjab Vs. Gurmeet Singh [1996 (2) SCC 384], has held that: ".... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complaints of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable....."
41.The accused is facing trial for the offences punishable under Sections under Sections 376(2)(n)/506(I) IPC. The deposition of the prosecutrix and the other prosecution witnesses have been noted above. From the evidence adduced in the present matter, the court finds that there are contractions, improvements and variations in the prosecution version. 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 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 of 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 at the same time, no person committing an offence should get scotfree. If inspite of such efforts suspicion is not dissolved, it remains writ a large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and 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 concertized. It would depend upon the evidence of each case including the manner of deposition of 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.
42.The material contradictions and improvements made by the prosecutrix in her testimony before the court are as under:
43.Firstly, there are contradictions with respect to the time of alleged commission of rape of the prosecutrix by the accused. A per Ex. PW2/A, the prosecutrix stated that the accused first time raped her in the month of February 2014. The prosecutrix has given the detailed version how she has been raped and thereafter, she had been raped for many times whereas the statement of the prosecutrix under Section 164 Cr.P.C. shows that the accused had allegedly raped the prosecutrix once and that too in the month of April, 2014. The prosecutrix during cross examination was when confronted with her statement under Section 164 Cr.P.C. Ex. PW2/E, she deposed that she had stated to the Ld. Magistrate who had recorded her statement under Section 164 Cr.P.C. Thus, the prosecution has failed to prove the first incident of alleged rape of the prosecutrix.
44.Secondly, in her complaint Ex. PW2/A, the prosecutrix stated that after the rape, the accused threatened her that in case she will disclose the incident, he will defame her everywhere whereas nothing such has been mentioned either in her statement under Section 161 Cr.P.C. or in her statement under Section 164 Cr.P.C. of the prosecution that the accused had ever threatened her of defaming at any point of time.
45.The entire case of the prosecution rests on the footing that the accused had raped the prosecutrix for 45 times within a span of four months from February 2014 to June 2014 and that too every time by threatening the prosecutrix that the accused would defame the prosecutrix in public. The prosecutrix has stated in her deposition before the court that in February 2014 when the accused committed rape upon her for the first time he threatened the prosecutrix that he would defame her in the society and for all subsequent rapes the threat was the same. However, while considering the statement of the prosecutrix under Section 164 Cr.P.C. the prosecutrix did not even whisper that accused had ever threatened her. Thus, the prosecution has failed to prove the very base of its case.
46.Besides above, it is worthwhile to mention that in her cross examination, the prosecutrix has changed her version of her threatening of defaming her in the society as deposed by her in her examination in chief and has deposed that the accused used to threat her to kill her child. She further deposed in the cross examination that she has not stated to the Ld. Magistrate in her statement under Section 164 Cr.P.C. about the threatening to kill of her child or to inform her husband that she had called the accused as she was scared.
47.The object of the cross examination is to elicit the truth and check the veracity of the witness. Though the prosecutrix in the cross examination has stated that she did not mention that the accused used to threat her to kill her child or to inform her husband that the prosecutrix called him as she was scared but this is patently without any base inasmuch as, as per the case of the prosecution, the prosecutrix had earlier some fear to tell the same to her husband but when she had disclosed the same to her husband and lodged the FIR, there is no occasion for her to be scared from the accused.
48.As already stated above that the prosecutrix has given a detailed version of how she has allegedly been raped in February 2014 for the first time by the accused, the prosecutrix during cross examination was when confronted with her statement under Section 164 Cr.P.C. where it was not so recorded. She deposed that she had stated the same to the police in her complaint Ex. PW2/A and to the ld. Magistrate who recorded her statement under Section 164 Cr.P.C. The prosecutrix further in her cross examination has deposed that she had stated to the ld. Metropolitan Magistrate in her statement under Section 164 Cr.P.C. that the accused immediately bolted the Kundi of the door inside, put his hand on her mouth and twisted her hand and forcibly removed her legging and raped her. She was confronted with the statement under Section 164 Cr.P.C. where it was not so recorded.
49.At all places, as discussed in paras 43 to 48 where the prosecutrix was confronted with her statement made before the police or before the Ld. Magistrate who recorded the statement under Section 164 Cr.P.C., she started making allegations against the IO and further goes to make allegation against the ld. Metropolitan Magistrate who recorded the statement of the prosecutrix under Section 164 Cr.P.C. So much so when the prosecutrix was confronted with the statement recorded by the ld. Metropolitan Magistrate under the proceedings under Section 164 Cr.P.C., the prosecutrix stated that she had narrated the same to the ld. Metropolitan Magistrate. The conduct of the prosecutrix shows that she does not hitch in accusing the Magistrate who recorded her statement. The sanctity is implicit with the proceedings under Section 164 Cr.P.C. Ld. Metropolitan Magistrate has no interest nor knows the facts of the case. His job was only to record the statement of the prosecutrix produced by the IO. Moreover, before recording of the statement of the prosecutrix by the Ld. Magistrate, the Ld. Magistrate has satisfied herself with respect to the voluntariness of the prosecutrix and the prosecutrix has stated that she is making the statement voluntarily.
50.The general purpose of recording the statement under Section 164 Cr.P.C. of a witness is to fix him to it when it is feared that he/she may resile afterwards or may be tampered with. Such statement is admissible in evidence and presumption of genuineness under Section 80 of the Evidence Act attaches to such statement. However, a statement under Section 164 Cr.P.C. can never be used as substantive evidence of truth of the facts but it may be used for the purpose of contradiction or corroboration of the witness who made it, as per provisions of Section 145 and Section 157 of the Evidence Act.
51.In the present case, the evidence of the prosecutrix is not free from embellishment as she has deviated from her statement under Section 164 Cr.P.C. The statement under Section 164 Cr.P.C. is a previous statement of the prosecutrix recorded before the Magistrate, which could be used for the purpose of contradiction or corroboration under the provisions of Indian Evidence Act.
52.From the evidence on record, the court finds that there are contradictions between the complaint, the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the testimony of the prosecutrix recorded before the court. The testimony of the prosecutrix is improbable, unreliable and unworthy of credence and thus, the evidentiary value of her deposition before the court is zero keeping in view the contradictions recorded before the Magistrate under Section 164 Cr.P.C. and the statement recorded before the court. The prosecutrix has made major improvements in her deposition before the court which has broken the genesis of the occurrence in the present case and thus, benefit can be granted to the accused from the statement of the prosecutrix under Section 164 Cr.P.C.
53.It is settled law that if the prosecutrix makes improvements on material points and and her testimony suffers from infirmities and inconsistencies, the same cannot be relied upon.
54.In this regard, I find support from the judgment passed by the Hon'ble Supreme Court India in a case titled as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC) wherein it has been held that" "17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point 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, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220)"
55.In Abbas Ahmed Choudhury v. State of Assam [(2010) 12 SCC 115] while observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court of India held that: "Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. "
56.In Rai Sandeep @ Deepu vs. State of NCT of Delhi [(2012) 8 SCC 21], the Hon'ble Supreme Court of India commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. It has been held that: "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
57.Thirdly, though the accused failed to prove its defence in his defence evidence however, from the evidence of PW13, it is apparent that there was enmity between the accused and the husband of the prosecutrix and they quarreled with each other and police case was also made after the quarrel.During cross examination of the husband of the prosecutrix PW13, this witness has admitted that 2025 days prior to the incident, a quarrel was taken place between him and the accused and he made a call on 100 number but the police did not give any document to him. The prosecutrix nowhere in her testimony stated that prior to the incident, a quarrel was taken place between her husband and the accused and her husband made a call on 100 number rather the prosecutrix deposed during cross examination that she had never made a phone call to the police at 100 number prior to the present complaint.
58.Previous enmity or strained relation always acts like a double edged digger which cuts both ways and a man may be falsely implicated in the commission of crime because of previous enmity. So in a case where previous enmity or illfeeling between the family members of the prosecutrix and the accused is shown to exist, it should be the duty of the court to scan the evidence on record with great circumspection.
59.The court is aware of the fact that nowadays false charges of rape are not uncommon and there have also been rather instances where parents have persuaded a gullible or obedient daughter to make false charge of rape either to take revenge due to previous enmity or extort money or to get rid of financial liability but whether there is rape or not, would depend only on the facts and circumstances of each case.
60.The evidence on record shows that there was previous enmity between the accused and the family members of the prosecutrix which creates doubt to the truthfulness of the testimony of the prosecutrix with respect to the false implication of the accused in the present case.
61.Fourthly, the prosecutrix in her complaint Ex.PW2/A stated that after getting upset with the conduct of the accused, she disclosed the entire incident to her husband and thereafter filed the instant complaint on 05.06.2014. From the statement under Section 164 Cr.P.C. and the deposition of the prosecutrix before the court wherein she has deposed that the accused met her last time in April 2014, it is apparent that the accused did not meet the prosecutrix after April 2014 till the filing of the instant complaint dated 05.06.2014. If it is the position that after April 2014 till the filing of the present complaint dated 05.06.2014 the accused did not meet the prosecutrix then the question of getting her upset with the conduct of the accused does not arise at all as it is nowhere the case the prosecution that after April 2014, the accused ever extended any threat to the prosecutrix. During the said period, the prosecutrix kept silent and this conduct of the prosecutrix creates doubt as to the truthfulness of the veracity of her testimony and the same does not inspire confidence.
62.The testimony of PW13, husband of the prosecutrix is also self contradictory in nature inasmuch as in his deposition before the court he deposed that on 3rd or 4th June 2014, the prosecutrix told him that the accused used to come to their house and had been raping her for the last three or four months whereas in his statement under Section 161 Cr.P.C. dated 05.06.2014, he stated stated that for the last 45 months, his wife, the prosecutrix, was behaving indifferently and used to remain silent and when he enquired about the same, she did not disclose anything to him which created doubt to his mind that something wrong is going on with the prosecutrix and due to fear, she is not disclosing the same and few days ago, he enquired from her by convincing her in emotional manner then the prosecutrix disclosed the entire incident to him while weeping. He also went to the house of the accused to discuss the matter and the accused did not give any satisfactory answer to him and later on when he threatened the accused that he will complaint to the police, the accused told him that nobody can cause any harm to him, on this, he has a fight with the accused. The conjoin reading of the version of the husband of the prosecutrix and the prosecutrix shows that there are material contradictions made by them in this regard.
63.Fifthly, as per the evidence on record and the site plan Ex.PW2/D, only one room at the ground floor of the property was rented out where the prosecutrix along with her husband and child used to reside in the year 2014. To this effect, PW9 Mamta who is the owner of the property deposed that there are two rooms on the ground floor and in one room, she along with her family used to reside and in the other room, prosecutrix along with her husband and child was residing. During cross examination, the prosecutrix deposed that the accused used to hide her son and thereafter used to commit rape upon her. Firstly, this fact is neither mentioned in the complaint Ex. PW2/A nor in her statement under Section 164 Cr.P.C. The prosecutrix was also confronted with her statement under Section 164 Cr.P.C. in this regard to which the prosecutrix deposed that she has stated this fact to the Magistrate. Secondly, how it is possible to hide a child in a single room.
64.Though this is no more res integra that conviction for the offence punishable under Section 376 IPC can be based on the sole testimony of the victim but the same should be consistent and probable and if in compelling circumstances the court finds it difficult to act on the sole testimony of the victim of sexual assault, the court can look for corroboration of the statement of the victim.
65.It has been held by the Hon'ble Orissa High Court in a case titled as Balia alias Balaram Behera and another v. State of Orissa, 1994 CRI. L.J. 1907 that: "It is well settled that the conviction can be maintained even on the sole testimony of the prosecutrix if believed to be true being wholly reliable and in such a case corroboration is not sought for. Corroboration becomes necessary when such evidence is neither wholly reliable nor wholly unreliable. It is in such case, "the court has to circumspect and (sic) look for corroboration in material particulars by reliable testimony, direct or circumstantial." (refer decision AIR 1957 SC 614: (1957 Cri LJ 1000), Vadivelu Thevar v. State of Madras).***"
[Emphasis supplied]
66.The court in the facts and circumstances of the case is of the opinion that the testimony of the prosecutrix was required to be corroborated in the present matter and without there being any corroboration, her sole testimony cannot be relied upon when the accused has denied of committing rape upon the prosecutrix.
67.The prosecutrix was subjected to medical examination at GTB Hospital, Delhi on 05.06.2014 vide MLC Ex. PW2/B and was also internally examined. The MLC Ex. PW2/B of the prosecutrix records that the alleged acts of coitus took place in the months of February and April 2014 i.e. more than one month before the medical examination of the prosecutrix. The FSL report Ex. PW14/D shows that due to nonavailability of semen on victim's sample, no DNA examination was conducted. Thus, the scientific evidence i.e. MLC of the prosecutrix Ex. PW2/B and the FSL result thereof Ex. PW14/D have not supported the case of the prosecution and accordingly, there is no forensic or medical evidence to connect the accused with the charged offences. In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction.
68.Sixthly, there is also considerable delay in lodging the FIR in the present matter. No doubt in the rape cases the delay in lodging in FIR has to be evaluated in a different manner than the delay in lodging of FIR in other matters. However, the fact remains that the delay if unexplained in any matter is fatal to the prosecution case.
69.The FIR in the present case was registered on 05.06.2014 under Section 376/506 IPC on the basis of the complaint dated 05.06.2014 Ex. PW2/A filed by the prosecutrix. As per the complaint Ex.PW2/A, the first incident of rape alleged to have been committed by the accused upon the prosecutrix in February 2014 whereas the complaint Ex. PW2/A has been filed by the prosecutrix on 05.06.2014. In her statement under Section 164 Cr.P.C., the prosecutrix stated that the accused raped her in April 2014. In her deposition before the court, the prosecutrix has admitted that the accused met her for the last time in April 2014. From the statement under Section 164 Cr.P.C. and the deposition of the prosecutrix, it is clear that after April 2014, the accused did not meet her. If it is assumed for the sake of arguments that the prosecutrix was under threat of the accused from February 2014 to April 2014 but thereafter, the prosecutrix was having ample opportunities to lodge the complaint against the accused but the prosecutrix waited till 05.06.2014. PW13 husband of the prosecutrix, even after coming to know about the alleged incident on 3rd or 4th June, 2014 as deposed by him, also did not lodge the complaint immediately thereafter. There is no explanation came forward from the prosecution in this regard. It is nowhere the case of the prosecutrix that she was under threat after April 2014. There is delay of more than three months in lodging the FIR in the present case which has not been explained by the prosecution. There is nothing on record to show what stopped the prosecutrix from lodging a complaint in the present matter. The delay in lodging the FIR in the present matter has not been explained in the present matter which raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. In the present case, the FIR was lodged after a considerable delay which is unexplained and the same is fatal to the prosecution story. Apparently, the FIR was lodged after due deliberations. Thus, adverse inference is drawn against the prosecution case. In this regard, I find support from the judgment passed by the Hon'ble High Court of Delhi in a case titled as Jagdish v. State, (Delhi), 1987(1) R.C.R.(Criminal) 613 :
1987(1) AICLR 465, wherein it has been observed that :
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 : "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite after results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to."
70.Settled legal position as discussed above, is that conviction can be based upon the sole testimony of the prosecutrix provided it is reliable and is of sterling quality but it would not be safe to do so if the testimony of the prosecutrix is shaky, unreliable and not worthy of credence. The testimony should be beyond suspect and of very high quality. A case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully. Though, the statement of the prosecutrix must be given prime consideration but at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape.
71.In the facts and circumstances of this case, the court is of the opinion that it would highly unsafe to rely on the deposition of the prosecutrix as there are substantial variations and embellishment on material aspects of the case, as discussed above. the testimony of the prosecutrix suffers from major improvement and contradictions which go to the root of the case as discussed above and is thus unreliable. With all these infirmities in the evidence of the prosecutrix, no implicit reliance could have been placed upon the testimony of the prosecutrix.
72.In view of the aforesaid discussion, the court holds that the prosecution has not been able to prove its case against the accused. Thus, accused Jitender is acquitted of the charge of having committed the offences punishable under Sections 376(2)
(n)/506(I) IPC.
73.In compliance of the provisions of Section 437A Cr.P.C. and on the direction of this court, the accused has submitted his personal bond and surety bond for the sums of Rs.25,000/.
74.File be consigned to record room after necessary compliance. Announced in the open court on 29.11.2017 (ANURAG SAIN) Additional Sessions Judge, (Spl.FTC), East, Karkardooma Courts, Delhi SC No. 1471/16 State vs. Jitender FIR No. 245/14 P.S. Harsh Vihar 29.11.2017 Present: None for the State.
Accused on bail along with ld. Counsel.
Vide separate judgment announced in the open court today, accused Jitender is acquitted of the charge of having committed the offences punishable under Sections 376(2)(n)/506(I) IPC. File be consigned to record room after necessary compliance.
(ANURAG SAIN) ASJ (Spl.FTC), East/KKD Courts,Delhi/29.11.2017