Delhi District Court
State vs . Pandit Shiv Dutt Sharma Page No. 1/27 on 7 October, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SOUTH EAST, SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0183872014
SC No. : 1553/16
FIR No. : 419/14
U/s. : 376/328/323 IPC
PS : Jaitpur, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Pandit Shivdutt Sharma
S/o Shri Prem Dutt Sharma
R/o House no. 23, Gali no.7/2,
Shakti Vihar Meethapur,
New Delhi .........................Accused
Date of Institution : 30.08.2014
Judgment reserved for orders on : 14.09.2017
Date of pronouncement : 07.10.2017
J U D G M E N T
Facts:
1. This case vide FIR no. 419/2014 u/s 376/328/323 IPC was registered on 30.06.2014 at the police station Jaitpur, New Delhi on the complaint of the prosecutrix (name withheld to protect her identity) who inter alia alleged that she knew the accused Pandit Shiv Dutt Sharma from before. He used to do pujapath in her parents house. Her bhabhi had suggested her to contact the accused to know the auspicious date of the marriage of her son. She contacted the accused on his number 9312846907 FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 1/27 from her number 8750020324. She asked him to come at her house but he asked her to come at his house on 05.06.2014 at about 8:00 p.m. at Shakti Vihar, Meethapur, New Delhi. He also asked her to call him first before coming. On 05.06.2014 at about 7:00 p.m., she called the accused and went to his house. He was standing in the gali. He called her inside the house. At that time, none else was there. He asked her to sit on the sofa. A motorcycle was parked there. A laptop was on a table. He brought a steel glass and gave her water. After taking water, she started feeling uneasy and giddy. She felt that the accused mixed some intoxicant in the water. She tried to go away from there but struck against the motorcycle and fell down. When the accused found that she was not in sense, he tried to molest her. She was unable to speak but was feeling that the accused was committing sexual intercourse with her forcibly. She was helpless. When she was resisting him, he inflicted blow on her head with some object as a result, she became unconscious. On 12.06.2014, she came in senses in Max hospital. She checked her clothes which she was wearing at that time. She told it to her husband who brought her to the police station to make the complaint.
Investigation:
2. After the registration of case, on 01.07.2014, the prosecutrix was taken to AIIMS where she was got medically examined. She gave the brief history of the incident to the doctor. She also handed over her pajami which she was wearing at the time of incident. On the same day, her statement u/s 164 Cr.P.C. was got recorded wherein she reiterated the allegations made in her statement. On 02.07.2014, the accused was got medically examined qua his potency. He was found capable of performing sexual intercourse under normal circumstances. His blood in gauze was FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 2/27 taken. On 03.07.2014, exhibit containing gastric lavage of the prosecutrix bearing the seal of Holy Family Hospital was collected. On 04.07.2014, the accused was arrested from his house. The exhibits were sent to the FSL, Rohini. After the investigation, he was sent for trial for the offences punishable u/s 328/376/323 IPC.
Charge:
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 17.09.2014, prima facie case was made out against the accused for the offences punishable u/s 328/376 and 323 IPC. The charge was framed. The accused pleaded not guilty and claimed trial. Prosecution Evidence:
4. To substantiate its allegations against the accused, prosecution examined as many as fifteen witnesses.
PW1 ASI Laxman Prasad proved the recording of the FIR Ex.PW1/A. PW2 SI Bikram Jeet prepared the chargesheet. He also got the exhibits sent to the FSL.
PW3 Dr. Piyush Sharma did the medical examination of the accused vide MLC Ex.PW3/A and found him capable of performing sexual intercourse under normal circumstances. He took his blood sample and handed over to the IO in sealed condition alongwith the sample seal.
PW4 SI Chander Shekhar stated that on 06.06.2014 a call vide DD no. 26A was received at the police station. He alongwith constable went to Holy Family Hospital FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 3/27 and collected the MLC of the prosecutrix. Since the prosecutrix was unable to speak properly, he returned at the police station and kept the DD pending. He then gave the MLC to W/SI Lekha Rani. On 03.07.2014, he again went to the hospital, collected the exhibit of the prosecutrix in sealed condition and handed over to W/SI Lekha Rani vide memo Ex.PW4/A. On being crossexamined, he stated that the call was to the effect that a lady has consumed something and is admitted in the hospital. He admitted that the attending doctor did not declare her unfit for statement. He admitted that he had mentioned in his statement Ex.PW4/DA that the relatives of the prosecutrix had disclosed him 'kisi ne pilaya', but he can not tell the name of that relative.
PW5 Ct. Mohd. Ali had taken the accused to AIIMS for his medical examination. He collected his exhibit and handed over to the IO W/SI Lekha Rani vide memo Ex.PW5/A. He stated that the exhibits were not tampered with in any manner till they remained in his possession.
PW6 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence.
PW7 Ms. Manisha Khurana Kakkar, Ld. MM recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW6/A. PW8 Dr. Mala Saini from Holy Family Hospital proved FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 4/27 the MLC of the prosecutrix Ex.PW8/A prepared by Dr. Altaf on 06.06.2014.
PW9 Dr. Venus Dalal, AIIMS proved the MLC of the prosecutrix Ex.PW6/B prepared by Dr. Japleen Kaur on 01.07.2014. She stated that as per record, the prosecutrix was not willing for her gynecological examination. She also proved the medical notes prepared by Dr. Japleen Kaur Ex.PW9/A. PW10 Ct. Krishna had taken the prosecutrix to AIIMS. She collected her MLC and her exhibit in sealed condition alongwith the sample seal and handed over to the IO W/SI Lekha Rani, who seized it vide memo Ex.PW10/A. PW11 is the son of the prosecutrix. He stated that on 05.06.2014 at about 8:15 p.m., his mother called him that she would return home after some time. At about 10:00 p.m., his maternal uncle Sanjeev Kumar called him from the mobile of his mother that she is not feeling well. He asked him to come to his house immediately. He went there and saw her mother unconscious. He brought his mother in his house but she did not regain consciousness till 10:00 a.m. He noticed blood stains on her face. He informed his father, a doctor by profession who took her to Holy Family Hospital where she remained for two days. Since there was no improvement in her condition, they shifted her to Max Hospital where she remained till 17.06.2014. He stated that on FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 5/27 30.06.2014, her mother told him and his father that on 05.06.2014, the accused had given her something to drink and committed rape upon her. His father then took his mother to the police station and reported the matter. On being crossexamined, he admitted that neither he nor his maternal uncle informed the police when he brought his mother from the house of his maternal uncle. He stated that the marriage of his brother took place after the registration of this case. He stated that during the period from 17.06.2014 to 30.06.2014, his mother was not fully conscious although she was recovering.
PW12 is the brother of the prosecutrix. He stated that on 05.06.2014 at about 10:00 p.m., son of the accused namely Sachin came at his shop and informed him that the prosecutrix was lying unconscious in his house. He went there and met the accused. The accused told him that she is in the gali having a lota in her hand. He came out and saw the prosecutrix standing near the wall of Awana Farm House, Tunkey Road. She was not able to recognize him as she was not in full sense. He brought her in his house. She was not able to stand and walk. She was making gesture of vomiting. His wife sprinkled water on her face. On inquiry, she told them that the accused had given her intoxicated water as a result, her condition deteriorated. She also asked him to call to PW11. He was not having phone number of Vishal in his FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 6/27 contacts, so he called at the phone of the prosecutrix. It was picked up by the accused. He informed him that the prosecutrix had left her purse and mobile in his house. The accused then sent his son Sachin at his house who handed over him the purse and mobile phone of the prosecutrix. He then called PW11 from her mobile. He also went to the house of the accused and asked him why the prosecutrix became unconscious. He told him that the prosecutrix had come to show the Kundli of her son. When he was seeing his kundli, she started shouting and became unconscious. PW11 also came there and they took her to her house. On the next day, she was admitted in the hospital.
On being crossexamined, he stated that when the prosecutrix informed him at 10:10 p.m., that the accused had given her intoxicated water, he did not call any doctor to give her medical aid nor called the police. He stated that he did not hand over the lota, which the prosecutrix was having in her hand. He stated that he did not notice if her clothes were stained in blood or not when he took her in his car. He stated that when he saw the prosecutrix, she was about 400 meters away from the house of the accused. The people were coming and going and he did not notice any vomit there. He stated that he never disclosed to PW11 that the prosecutrix had told him that the accused had given her intoxicated water. He admitted that he did not hand over the mobile FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 7/27 phone and purse of the prosecutrix to the police. He also admitted that his wife did not change the clothes of the prosecutrix. He stated that he did not notice injury marks on her head at that time but she was crying and putting hand on it.
PW13 W/SI Lekha Rani was the investigating officer of this case. She deposed on the lines of the investigation. She also prepared the site plan of the place of incident and arrested the accused. She stated that she never visited Holy Family Hospital and Max Hospital to collect the reports of the prosecutrix. She stated that the prosecutrix remained unconscious from the date of incident till she was examined at AIIMS. She admitted that the house of the accused was in a thickly populated area and she did not make inquiry from the neighbours of the accused. She stated that the prosecutrix did not hand over her the pajami.
PW14 Dr. Sarabjit Singh was the senior officer, FSL Rohini. He took the FSL report Ex.PW14/A, as per which, DNA profile generated from the source of pajami of the prosecutrix matched with the DNA profile generated from the source of the blood in gauze of the accused. He, however, admitted that the samples of the accused were not taken in his presence.
PW15 was the MHC(M). He proved the relevant entries made in register no. 19 and 21 regarding receipt of samples and sending of samples to the FSL. He stated FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 8/27 that no specimen seal was ever deposited in the malkhana in his presence.
Statement of The Accused U/s 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and pleaded his innocence. He admitted that he used to live near the house of the parents of the prosecutrix and do puja for them. He stated that the prosecutrix had come with her younger son and brother, a month before 05.06.2014 and got the kundli of her elder son matched. She never came to him on 05.06.2014. He stated that on 05.06.2014, he was going to his house after closing the temple. The prosecutrix was standing with her brother, son and two more persons. They asked him what he had said to the family of the girl. When he told them that he never talked to them, she told him that the family of the girl has told her that he (accused) has told them that her husband had committed murder of someone and her son had kidnapped her mami. They started beating him. He fell on the road and lost his tooth.
He was saved by Jai Prakash and Prakash. He stated that the prosecutrix had told him that she has suffered loss of Rs. 40 lacs due to breaking of engagement and she would recover it from him. Since she was an influential lady, due to fear, he did not make the complaint. He stated that he never committed any offence and he was falsely implicated. He, however, admitted that his blood sample was taken during his medical examination but stated that the samples were manipulated before sending to FSL.
6. As per the FSL report dated 24.12.2014, on chemical and TLC examination, ethyl & methyl alcohol, alkaloids, barbiturates and tranquilizers were not detected in the 'gastric lavage' of the prosecutrix, FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 9/27 which was taken during the medical examination of the prosecutrix in Holy Family Hospital.
Defence Evidence:
7. In defence, the accused examined two witnesses.
DW1 Jai Prakash Gautam stated that on 05.06.2014, when he was returning home, near his house in the gali, he saw 56 persons. He went there and saw the prosecutrix, her brother and son beating the accused. Prakash also reached there. A motorcycle was standing there. He was trying to save the accused from them. In the scuffle, prosecutrix fell down and the bike fell on her. The accused also fell down when the prosecutrix pushed him. He sent the accused to his house on the bike of Prakash. He stated that quarrel had taken place at about 9:00 p.m. After 2 - 3 days, he went to the police station and met SI Chandra Sekhar. He had told him that the accused is a gentle man.
DW2 Prakash Singh deposed on the lines of DW1 and stated that he had taken the accused on his bike after the quarrel.
Arguments & Contentions:
8. I have heard the arguments advanced by Ld. Counsel Sh. Rajesh Arora for the accused and Ld. Addl. PP Sh. Mohd. Iqrar for the State.
9. Ld. counsel for the accused vehemently argued that it is a case of false implication of the accused. The version of the prosecutrix is highly improbable. It is not believable that the accused after causing the incident would send his son to inform the brother of the prosecutrix that the FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 10/27 prosecutrix was lying unconscious in his house and again send him to deliver her mobile phone and purse to PW12. Ld. Counsel stated that the house of the accused was situated in a thickly populated area but no neighbour of the house was inquired upon to know if an incident had happened in the house of the accused or not. Ld. Counsel stated that the FSL report dated 24.12.2014 completely rules out the possibility of mixing intoxicant in the water given by the accused to the prosecutrix on 05.06.2014 as no ethyl & methyl alcohol, alkaloids, barbiturates and tranquilizers were detected in the 'gastric lavage' of the prosecutrix. The investigating officer did not seize the lota which the prosecutrix was holding at the time of incident. The mobile phone of the prosecutrix was not seized nor the call detail records of the mobile phones of the accused and prosecutrix were collected to prove their locations at the time of incident or whether they had talked to each other on the mobiles. Ld. Counsel stated that the prosecutrix had refused for her medical examination. She is in the habit of taking drugs so the possibility of sustaining injuries after taking drugs can not be ruled out. Ld. Counsel stated that there is inordinate delay in lodging the report. No report was lodged on the day of alleged incident. Even, the circumstances under which the pajami was collected are suspicious. Ld. Counsel stated that it is a case of tampering of samples just to falsely implicate the accused. Ld. Counsel stated that the prosecutrix is a highly influential person. She had contested the election of the corporator in that area. It is highly improbable that the accused would call her in his house and do the said act.
10. Ld. Addl. PP on the contrary argued that the prosecutrix is consistent and cogent in her testimony. The FSL report Ex.PW14/A corroborates her testimony as per which, DNA profile generated from the FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 11/27 source of pajami of the prosecutrix matched with the DNA profile generated from the source of the blood in gauze of the accused. The pajami of the prosecutrix was preserved and it was given by the prosecutrix to the doctor at AIIMS when her MLC was prepared which fact is also evident from her MLC Ex.PW6/B. Ld. Addl. PP stated that the prosecutrix had gone to the house of the accused to show the kundli of her son. The accused was alone there. He gave her water mixed with intoxicant as a result, she started feeling giddy. He then committed sexual intercourse with her forcibly. He also inflicted blow on her head. She became unconscious. She was removed to Holy Family Hospital where she remained unconscious which fact is evident from the testimony of PW4. She was then admitted in Max Hospital where she remained till 17.06.2014. She was not in complete sense till 30.06.2014. On that very day, she told the incident to her husband and asked about the clothes which she was then wearing. Her husband gave her pajami. He took her to the police station where she gave her statement Ex.PW6/A. Ld. Addl. PP stated that there was no reason for the prosecutrix to falsely implicate the accused. Her statement is corroborated by PW11 and PW12 who came on the spot after the incident. Ld. Addl. PP stated that delay had occurred since the prosecutrix was not in complete sense which fact is evident from the medical records. Ld. Addl. PP stated that lota, purse and mobile phone were not seized during the investigation since they were not the material piece of evidence. Ld. Addl. PP stated that there is enough direct and circumstantial evidence against the accused to prove the complicity of the accused in the commission of the aforesaid offence. Findings :
11. I have bestowed my thoughtful consideration on the contentions FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 12/27 raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record.
12. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) .......
(c) ......
(d) ......
under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. .........................
Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
13. Section 376 provides punishment for rape, Section 328 provides punishment for administering any poison or any stupefying, intoxicating or unwholesome drug with intent to cause hurt to such person or with intent to commit or to facilitate the commission of an offence. Section 323 IPC provides punishment for voluntarily causing hurt to a person.
FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 13/27
14. The basic question now is whether the accused had caused the prosecutrix to drink some intoxicant / stupefying substance with an intent to commit rape upon her or he committed sexual intercourse with her against her wishes or he voluntarily caused hurt to the prosecutrix. For deciding this question, it is relevant to discuss the testimony of the prosecutrix in detail.
15. PW6 / prosecutrix has deposed on the lines of her complaint / statement Ex.PW6/A. She stated that the accused used to perform puja in the house of her parents. She knew him from before. She has two sons aged 25 years and 21 years. About 5 / 6 days before, her bhabhi had advised her to talk to the accused to find auspicious date for the marriage of her son. She requested the accused to come to her house but he asked her to come in his house after 4 - 5 days. On 05.06.2014 at about 7:00 p.m., she called the accused and confirmed the time. She took an auto and went to his house at 23, Gali no. 7/2, Shakti Vihar, Meethapur, Delhi. The accused was standing outside his house. He asked her to come inside. At that time, none else was there. He made her sit on the sofa in the room where a bike was parked and a table was kept. After a little while, he brought a glass of water and offered her to drink. After drinking water, she started feeling giddy and unconsciousness. She felt that some sedative was mixed in the water. She got up from the sofa. The accused was standing in front of her. He started molesting her. She collided with the motorcycle. She sustained injuries on her right leg below the knee. She was not able to cry or shout. He again molested her and committed rape upon her. Though, she was looking at him but was unable to raise hands or cry or resist him since she was under the effect of intoxication. He then hit her on her head with some object as a result, she became unconscious. When she regained FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 14/27 consciousness on 12.06.2014, she was in Max Hospital. She was discharged from there on 17.06.2014. She started feeling better and recollecting what had happened with her. On 30.06.2014, she told the incident to her husband and asked about her clothes which she was then wearing. Her husband brought her pajami. She stated that she does not know who had changed her clothes and when her clothes were changed or who had taken her to the hospital. She stated that since she was not in a fit state of mind and not able to recollect the incident, she had not told the incident to her husband immediately after she was discharged from the hospital. Her husband then took her to the police station Jaitpur where she gave her statement Ex.PW6/A. She stated that she was got medically examined vide MLC Ex.PW6/B and her statement u/s 164 Cr.P.C. Ex.PW6/C was also recorded. Police took her to the house of the accused at Meethapur and apprehended him from there. She identified her pajami Ex.P1.
On being crossexamined, she stated that she did not state the incident to the doctors at Holy Family Hospital and Apollo Hospital. She stated that she was in comma when she was taken to Holy Family Hospital. In Max Hospital, she was not in complete sense. From Apollo Hospital, she has been getting neuro treatment. She denied that she was in complete sense during the period from 05.06.2014 to 30.06.2014 and did not receive any head injury. She stated that she had told her bhabhi that the accused had given her something and she was feeling giddy. She also admitted that she had asked her bhabhi to call her son to take her to her house. She stated that she did not hand over her pajami to the doctor at Holy Family Hospital, Max Hospital and Apollo Hospital nor had given the description of the pajami to the police when she lodged the report. She stated that FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 15/27 during scuffle, she fell down on the floor. Although, she tried to resist but since her body had become weak, she could not resist him. On being further crossexamined, she admitted that she had contested the election for the Municipal counsellor. She also admitted that her husband was released on bail in a murder case FIR no. 51/09 PS Sunlight Colony. She also admitted that she and her husband are BEMS and they have been running a clinic in the name of Sharma Clinic at Badarpur. She denied that on 04.11.2009, ACP had issued a press release qua her involvement in the case FIR no. 51/09 MarkX. She denied that her son had run away with his mami about six months ago. She denied that marriage of his son could not materialize since the girl side came to know about the involvement of her husband in a murder case, her involvement in an abortion racket and her son eloping with his mami. She denied that she had suspected that the accused had disclosed these facts to the girl's family. She stated that the blood had oozed out from her head and right leg due to collision and she does not know if her clothes got blood stains or not. She stated that she did not hand over her kurta and chunni to the police and she does not know where they were lying. She stated that when she came in senses, she was wearing hospital dress and she can not say who changed her pajami. She denied that pajami Ex.P1 was planted after taking blood sample of the accused. She denied that on 05.06.2014 when the accused was returning from the temple, she, her son and her husband wrongfully restrained him near the house of Jai Prakash Gautam and Prakash Singh and beat him and they had intervened to save the accused from them. She denied that she is in the habit of taking poppy and ganja or that the accused never called her in his house nor gave her intoxicant nor committed rape upon her.
FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 16/27
16. As per the MLC prepared at Holy Family Hospital Ex.PW8/B, the prosecutrix was brought in the hospital on 06.06.2014 at 11:30 p.m. by her husband. The police was informed on the same day at 2:45 p.m. As per the history recorded in the MLC, some panditji had given water / liquid to the prosecutrix in his house on 05.06.2014 at around 8:30 p.m.. Her gastric lavage was taken and handed over to the police. In the instant case, although the IO / PW13 did not collect the complete record of the treatment of the prosecutrix from the hospitals but the prosecutrix while claiming the compensation u/s 357A(3) & (4) Cr.P.C. had filed the documents. As per the documents, she was discharged from Holy Family hospital on 07.06.2014 against medical advise. She was diagnosed Venous thrombosisleft sigmoid sinus & transverse sinus. Acute infarct of left PCA territory with hemorrhagic transformation. Calcified granuloma in right frontal region (on mech. ventilation). There was history of 3 episodes of GTCS with tongue bite and postictal confusion. She was then taken to Max Hospital at Saket. She was discharged on 17.06.2014. There, she was diagnosed Cerebral venous thrombosis (left sigmoid sinus and transverse sinus) with acute left PCA territory infarct with hemorrhagic transformation with calcified granuloma right frontal region with seizures. Fibroid uterus with PV bleed. As per the history, there was recurrent seizure and altered sensorium. She had difficulty in breathing. When she was discharged, she was stable. She was advised followup. PW6 has stated that after committing rape, accused hit on her head with some object and she fell unconscious. When she regained consciousness, she found herself in Max hospital. PW12 has stated that at about 10:00 p.m., son of the accused came at his shop and informed him that his sister / prosecutrix was lying unconscious in his house. He reached FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 17/27 there and asked the accused about his sister. He told him that she is in the gali having a lota in her hand. He came out and saw the prosecutrix standing near the wall of Awana Farm House, Tunkey road. She was unable to stand and walk properly. She was making gesture of vomiting. She was crying by putting her hand on her head, but he did not notice injury mark on her head. His wife sprinkled water on her face. On inquiry, she told them that the accused had given her some intoxicated water as a result her condition deteriorated. He then called PW11. They took the prosecutrix to her house and on the next day, she was admitted in Holy Family Hospital. He has stated that he had found his sister at a distance of 400 meters from the house of the accused. At that time, people were coming and going. PW11 has stated that when he reached the house of PW12, her mother was unconscious. He with the help of PW12 brought her in his house. When she did not regain consciousness till 10:00 a.m. and he noticed blood stains on her face, he informed his father who took her to the Holy Family Hospital. Question arises when the prosecutrix had become unconscious in the house of the accused, how she covered the distance of 400 meters. There is inconsistency if the prosecutrix was fully unconscious or partially unconscious when she was standing in the gali. Question further arises when she was unconscious, why she was taken to the hospital on the next day at about 10:00 a.m. PW6 has stated that the accused had given her water in the glass. PW12 has stated that the prosecutrix was holding a lota in her hand. Question further arises how the lota came in the hand of the prosecutrix and why she was carrying that lota. It is pertinent to mention that during investigation, the said lota was not seized.
In the instant case, the gastric lavage of the prosecutrix was sent to FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 18/27 the FSL. As per the report dated 24.12.2014 which is admissible in evidence u/s 293 Cr.P.C., no ethyl & methyl alcohol, alkaloids, barbiturates and tranquilizers were detected in the gastric lavage. The report rules out the possibility of mixing of sedatives or intoxicants in the water allegedly given to the prosecutrix by the accused.
17. The instant matter was reported to the police on 30.06.2014 i.e. after about 13 days of the discharge of the prosecutrix from the Max hospital. PW4 has stated that when he reached Holy Family hospital on receipt of DD no. 26A, he had met the attending doctor and he had not declared the prosecutrix unfit for statement. It is pertinent to mention that during investigation, his statement Ex.PW4/DA was recorded where he had stated that the relatives of the prosecutrix had disclosed him that 'kisi ne pilaya' but he failed to disclose the name of that relative. PW11 has stated that the prosecutrix was in her house from 17.06.2014 to 30.06.2014 but she was not fully conscious and was recovering. PW6 has stated that after discharge from the hospital, she started feeling better and regaining consciousness and recollecting the facts. On 30.06.2014, she narrated the incident to her husband. In the instant case, the prosecution did not examine the husband of the prosecutrix. He was the material witness in this case as he was the person who had taken the prosecutrix to the police station on 30.06.2014. He was a practicing doctor. From his testimony, it could be known as to what was the condition of the prosecutrix during the period from 17.06.2014 to 30.06.2014.
18. PW12 has stated that when he took the prosecutrix to his house, she was making gesture of vomiting. His wife sprinkled water on her face. On inquiry, she told him that the accused had given her intoxicated water as a result, her condition deteriorated. She had also asked him to call FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 19/27 PW11. PW6 has stated that she had told her bhabhi (wife of PW12) that the accused had given her something and she was feeling giddy. She had also asked her bhabhi to call PW11 to take her to her house. It is pertinent to mention that before 30.06.2014 when the report was lodged, PW6 never alleged that the accused molested her, committed sexual intercourse with her forcibly and inflicted blow on her head with some object. I failed to understand what had prevented the prosecutrix from disclosing the other incidents, caused to her by the accused, to her brother / PW12, bhabhi and her husband. It is also not understood why the family members of PW6 waited for the whole night to take PW6 to the hospital though it had already come in the notice of her husband that PW6 was given some intoxicant by the accused as appearing in her MLC Ex.PW8/B.
19. PW6 / prosecutrix has stated that at the time of incident, she was wearing kurta, chunni and pajami Ex.P1. Due to the impact, she sustained injury on her head and the blood had oozed out from her head and right leg. She does not know who changed her clothes when she was taken to Holy Family hospital or who had taken her to the hospital. When she came in senses, she was wearing hospital dress. She has stated that she did not hand over her kurta and chunni to the police during the investigation. She has stated that on 30.06.2014, she narrated the incident to her husband and asked him about her clothes which she was then wearing. Her husband then brought her pajami. She has stated that she did not hand over her pajami to the doctor at Holy Family Hospital or at Max Hospital. As per the FSL report Ex.PW14/A, blood was detected on the pajami of the prosecutrix and the blood in gauze of the accused. Semen was also detected on the pajami of the prosecutrix. DNA profile generated from the blood in gauze of the accused matched with the DNA profile generated FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 20/27 from the pajami. The report shows that the blood was detected on the pajami but there is no report whether the blood was of accused or of the prosecutrix on the pajami as no analysis was made in this regard. In the instant case, the exhibits of the accused and the prosecutrix were collected on 01.07.2014 and 02.07.2014 but they were sent on 19.09.2014 after the gastric lavage was sent. No explanation came why the exhibits were sent so late. It assumes significance because it remained a mystery under what circumstances, the pajami of the prosecutrix was seized / collected. Testimony of PW14 / Sr. Scientific Officer shows that the accused was never brought before him nor the samples were taken in his presence. In these circumstances, it is difficult to rely on the FSL report.
20. It is pertinent to mention that before 30.06.2014, the prosecutrix did not tell anyone that she was raped by the accused. Her clothes were not seized either by the doctor or the police when she was admitted in Holy Family Hospital or Max Hospital. She herself had handed over her pajami to the doctor when her MLC Ex.PW6/B was prepared at AIIMS. Question arises what made the family members of the prosecutrix preserve her pajami in that very condition and not wash the same and why the other clothes of the prosecutrix were not preserved with the pajami. No plausible answer came from the side of the prosecution in this regard. It is not the case that the prosecutrix when she was being taken to the hospital in unconscious condition had murmured that accused had molested her or committed sexual intercourse with her. As per PW6, her husband had brought the pajami. Since her husband is not examined, so it remained unanswered from where he had brought the pajami or who had preserved it before it was given to the doctor at AIIMS.
21. PW12 has stated that son of the accused had come in his shop and FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 21/27 informed him that the prosecutrix was lying unconscious in his house. He had asked him to bring her from there. He went to the house of the accused who told him that the prosecutrix was in the gali having a lota in her hand. PW12 has stated that he wanted to contact PW11, but he did not have his mobile number. He then called on the mobile of the prosecutrix which was picked up by the accused. The accused informed him that the prosecutrix has left her purse and phone in his house. He sent his son Sachin at his house and he handed over the purse and mobile to him. He then called PW11 from the mobile phone of the prosecutrix. His testimony to this effect appears to be improbable and unbelievable. Why the accused after causing the incident would inform PW12 that the prosecutrix was lying unconscious in his house and why he would send his son to give her purse and mobile to PW12. In the instant case, the investigating agency did not collect the call detail records of the prosecutrix to find out if the prosecutrix had called the accused before going to his house or whether during that period, her phone was used or where was the location of her mobile phone at the time of the alleged incident. No plausible explanation came from the side of prosecution.
22. Perusal of testimony of PW6 reveals that she had contested the election for Municipal corporator. A case vide FIR no. 59/09 u/s 302 IPC at the police station Sunlight colony was registered against her husband. The police had also inquired from her regarding her involvement in the said case and in this regard, a press release was made by the Asst. Commissioner. Version of the accused is that the family of the girl side had broken the engagement of her son when they came to know of the involvement of her husband in the murder case and her son eloping with his mami, the prosecutrix and her family had suspicion on him that he had FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 22/27 informed the girl side about it. They were having grudge against him and on that day, the prosecutrix, her brother and son beat him. This version is substantiated by the defence witnesses DW1 and DW2 who used to live in the same locality. They have stated that at about 9:00 p.m., in gali no. 7, they saw a crowed. The prosecutrix, her brother and son were beating the accused. They intervened in the quarrel and DW2 took the accused to his house on his motorcycle. I do not find any reason to disbelieve them. The Apex Court in Ram Singh case Crl. App. No. 932/2009 held that the evidence tendered by defence witness cannot always be termed to be tainted one. The defence witness is entitled to equal term and equal respect as with of the prosecution. The issue of credibility and trustworthiness will also to be attributed to the defence witness at par with that of the prosecution. It was held in the case of Dudh Nath Pandey Vs. State of UP AIR 1981 SC 911 that defence witnesses are entitled to equal treatment with those of the prosecution and the Court ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.
23. It was contended by Ld. Defence Counsel that the prosecutrix had refused for her internal examination and it goes to show that no such incident had happened. I do not agree with this contention. In the instant case, her MLC was prepared after about 25 days of the incident. For that reason, she must have refused for her internal examination.
24. As regards delay, the Supreme Court in the case of Satpal Singh Vs. State of Haryana (2010) 8 SCC 714 has held that the normal rule regarding the duty of the prosecution to explain the delay in lodging the FIR and the lack of prejudice and / or prejudice caused because of such delay in lodging of the FIR does not per se apply to the cases of rape. In FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 23/27 the instant case, the explanation regarding the delay in lodging the FIR may be bleak but not totally unacceptable. PW6 has stated that after she came in complete sense, she told the incident to her husband who brought her in the police station where she made the complaint.
25. From the evidence discussed above, I am of the view that the circumstances appearing in this case when examined in the light of above principles do not lead to any decisive conclusion that the accused Pandit Shiv Dutt Sharma committed sexual intercourse with the prosecutrix without her consent after intoxicating her and caused her injuries. The testimony of the prosecutrix does not appear to be of sterling quality. There are embellishments and exaggerations in the testimony of the prosecutrix/PW6 which go to the root of the case. The things appear to have not happened in the manner they have been projected.
26. Who can be termed as sterling witness has been dealt in the case of Rai Sandeep @ Deepu Vs. State of NCT of Delhi, 2012 (131) DRJ, 3SC, it was held as under: "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 howsoever 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, FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 24/27 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"
27. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 25/27
28. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the 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.
29. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record"
Conclusion
30. In the light of what has been stated above, I am of the view that the prosecution has failed to prove its case against the accused beyond FIR No. : 419/14 PS : Jaitpur State Vs. Pandit Shiv Dutt Sharma Page No. 26/27 reasonable doubt. I therefore, acquit the accused Pandit Shiv Dutt Sharma of the offences punishable under section 328/376 and 323 IPC giving him benefit of doubt. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 25,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal or revision.
31. File be consigned to the Record Room.
Announced in the open
court today i.e. 07.10.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 419/14
PS : Jaitpur
State Vs. Pandit Shiv Dutt Sharma Page No. 27/27