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[Cites 14, Cited by 0]

Delhi District Court

State vs Rakesh on 15 October, 2012

         IN THE COURT OF SH.SURESH CHAND RAJAN
      ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
                DWARKA COURTS, NEW DELHI

SC No.85/1/11
FIR No.156/11
U/s 376/506 IPC
PS Naraina

State 

Vs.

Rakesh 
S/o Azad Singh
R/o WZ­572C, Naraina Village
New Delhi 
                                     .......... Accused
                                                                                                        
Challan filed on : 09.11.2011
Reserved for Order on : 28.09.2012
Judgment delivered on : 15.10.2012

JUDGMENT

The Brief conspectus of facts are that on 21.09.2011 Smt. Sunita alongwith her daughter Anuradha (prosecutrix) came to Police Station and met the duty officer. They were produced to ASI Manju Dhyani who interrogated them and recorded the statement of Smt. Sunita (mother of prosecutrix) which is Ex.PW8/A wherein she has alleged that her daughter Anuradha is illiterate. Due to ill health of her daughter she State Vs.Rakesh FIR no.156/11 Page No. 1 of 37 took her to doctor about 15 days back who after check up informed that her daughter is pregnant. She asked her daughter Anuradha as to who is responsible for it and she told that this child is of Rakesh who is living in their neighbourhood. Anuradha told her that in January 2011 on the eve of Lohri Rakesh had come to their house and at that time she was in another room and he gave one cold drink stating that it was sent by her sister­in­law (bhabi). After consuming the same she started becoming unconscious and thereafter Rakesh took off her clothes and committed wrong act with her. She further told that when she regained her consciousness she got perplexed and she did not inform about this to anyone as Rakesh had take her pictures with his mobile phone and she showed those pictures to her on many occasions and threatened that if she will disclose this to anyone, he will also show the photographs to everyone and that he will insult her and kill her. She has further told that Rakesh used to show her photographs and commit sexual intercourse with her due to which she became pregnant. On this statement Ex.PW8/A, IO made her endorsement and got the case registered. The investigation was done and accused was arrested. Medical of accused as well as prosecutrix were got done. The statement of prosecutrix u/s 164 Cr.PC was got recorded. Application was moved by IO before the Ld. MM for conducting DNA test of new born baby but the said application was dismissed. After completion of investigation, challan was filed in the court.

State Vs.Rakesh FIR no.156/11 Page No. 2 of 37

2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by this court on 02.12.11.

3. The charge against accused Rakesh was framed u/s 376/506­I IPC on 07.01.2012 to which the accused pleaded not guilty and claimed trial.

4. The prosecution in all has examined as many as 13 witnesses.

5. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case in connivance with the complainant and prosecutrix. He has stated that in the month of Dec.2010, he was going to his house and Anuradha and three boys were sitting in the park and they acted obscene acts with Anurdha. He objected the same being neighbour. On this the three boys and Anuradha, threatened him with dire consequences and also threatened to involve him in false criminal case. He went to his house. On 7.9.2011 police called him in the PS Naraina. He alongwith his family went to PS and illegally detained in the PS and on 21.09.2011 he was shown arrested in the present false case and his mobile phone was also taken by the IO and IO checked the same and never returned the same to him. His mobile phone State Vs.Rakesh FIR no.156/11 Page No. 3 of 37 number is 9250056193. He has further stated that on 9.9.12 he made call on this mobile and IO listened the call and told that it is a wrong number and switched off the mobile till today. It is a false case. He was involved in this case due to altercation with the prosecutrix and her boy friends. Thereafter the case was fixed for final arguments.

6. I have heard the Ld. APP for the State as well as Ld. counsel for the accused and perused the testimonies of all the PWS and exhibited documents carefully. PW1 Ms. Shelly Arora is the Ld. MM who recorded the statement of prosecutrix u/s 164 Cr.PC which is Ex.PW1/C. 7 PW2 Anuradha is the prosecutrix who has stated that she gave statement to Ld. MM which is Ex.PW1/D. She also stated that accused had made forcible physical sexual relations with her. 8 PW3 Dr. Kavita Aggarwal has deposed that patient Anuradha was brought to the hospital for her medical examination and after medical examination she prepared her MLC which is Ex.PW3/A.

9. PW4 Dr. Subhajit Dhar has deposed that he examined patient Rakesh as if he was capable of intercourse or not. After examination he prepared MLC which is Ex.PW4/A. State Vs.Rakesh FIR no.156/11 Page No. 4 of 37

10. PW5 Ct. Hari Chand has deposed that on 21.9.2011 he alongwith ASI Manju and W/Ct Jayawanti, Victim Anuradha, Sunita and Sonia (chachi of prosecutrix) reached near Club Road Naraina where on the pointing out of prosecutrix accused Rakesh was apprehended and arrested vide memo Ex.PW5/A. Thereafter prosecutrix and accused were taken for medical examination.

11 PW6 Lady/Ct Jaywanti has also deposed that she joined the investigation on 21.9.2011 and that victim pointed out one boy namely Rakesh who was apprehended and arrested vide memo Ex.PW5/A. She also deposed that the prosecutrix and accused were taken to hospital and got medically examined.

12 PW7 Sonia is the chachi(aunt) of prosecutrix. She has stated that the date of birth of prosecutrix is 4.8.95. On 21/22.9.2011 he alongwith prosecutrix, Sunita and her husband went to PS to lodge the complaint against Rakesh as he had raped her niece as a result of which she became pregnant. She had accompanied the prosecutrix to hospital for her medical examination. She also came to court where statement of prosecutrix was got recorded. She had given the copy of date of birth certificate to the police which is Ex.PX.

13 PW8 Sunita is the mother of prosecutrix and she has deposed State Vs.Rakesh FIR no.156/11 Page No. 5 of 37 that her daughter is aged about 15 years. The birth certificate is Ex.PX. She has stated that in the month of Lohri, her daughter was raped by Rakesh. At that time she used to go for work. The health of her daughter deteriorated and she became very weak. She was taken to doctor in the month of Rakhi where she was told that her daughter is pregnant. The prosecutrix did not tell her that she was raped by accused in the month of Lohri and when she came to know about the pregnancy of her daughter she questioned her and it was informed that she was raped by Rakesh after she was given some cold drink containing intoxicated substance and she also disclosed that accused had taken her naked photographs in his mobile and threatened that if she disclose anything to anyone he would defame her by showing those photographs to all. She was told that she was raped 3­4 times. She further told that she did not disclose anyone as she was threatened by accused that if she disclosed to anyone, he would kill her brothers and her father. She took her to PS where her statement Ex.PW8/A was recorded. Later her daughter had delivered a male child in the same year after Rakhi and the said child is of accused Rakesh due to rape.

14 PW9 Raman Vij is the witness from Sub Registrar Birth & Death who has stated that particular regarding birth of Anuradha is mentioned at sr.no.198 and her date of birth is mentioned as 4.8.95 which was report in the office on 9.8.95. The copy of the relevant entry is State Vs.Rakesh FIR no.156/11 Page No. 6 of 37 Ex.PW9/A. 15 PW10 Dr. Chetan Kumar has examined the accused and prepared his report Ex.PW10/A and opined that there is nothing to suggest that the said person was not capable of performing sexual intercourse.

16. PW11 ASI Shankar Lal is the duty officer who recorded FIR of the present case. The rukka is Ex.PW11/A, endorsement on rukka is Ex.PW11/B and he recorded FIR no.156/11 copy of which is Ex.PW11/C

17. PW12 Ct. Moti Lal has deposed that accused and prosecutrix were got examined on 22.9.2011 and after examination the exhibits were seized vide memo Ex.PW12/A. He has stated that statement of prosecution u/s 164 Cr.PC was recorded. He was declared hostile by the Ld. APP for the State wherein he admitted that after medical examination of accused he was kept in custody of Ct. Harichand and under his supervision and thereafter IO went to obtain some advise from the lady doctor taking alongwith her prosecutrix and her chachi Sonia.

18. PW13 ASI Manju Dhayani is the IO of this case and she has stated that she recorded the statement of Sunita which is Ex.PW8/A on which she made endorsement Ex.PW13/A and got the case registered. State Vs.Rakesh FIR no.156/11 Page No. 7 of 37 She has further stated that she alongwith her team and prosecutrix went to the spot and on the way prosecutrix pointed out one boy who had raped her. He was arrested vide memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW13/B. Accused was taken to hospital for his medical examination. She has further stated that accused made disclosure statement which is Ex.PW13/C wherein he disclosed about the commission of rape and taking of obscene photographs of prosecutrix from his mobile. After medical examination the exhibits of accused were seized vide memo Ex.PW11/A. She moved an application Ex.PW9/A before the court for recording the statement u/s 164 Cr.PC. She obtained the copy of the statement vid e application Ex.PW1/F. She moved an application for police remand of accused to recover the mobile phone which was allowed. On 21.9.2011 Smt. Sonia produced the copy of birth certificate of prosecutrix Anuradha which was seized vide memo Ex.PW13/D. She has further deposed that on 22.9.2012 accused had disclosed that he had thrown the mobile phone in the dustbin at Naraina Vihar. The prosecutrix also could not give the number and make of the said mobile. The accused also could not give the details of the mobile phone and stated that it was a second hand mobile phone. She checked the house of accused on 23.9.2011 and 24.9.2011 but could not trace any mobile. On 23.9.2011 accused pointed out the place where he had thrown the mobile phone after breaking it and accordingly pointing out memo was prepared which is Ex.PW13/E. The mobile could not be searched. On State Vs.Rakesh FIR no.156/11 Page No. 8 of 37 her application prosecutrix was sent to CWC for her safety and on 26.9.2011 she moved an application for medical examination of the prosecutrix as she had been advised ultrasound. She was produced in DDU Hospital due to her ill health. On 27.9.2011 she was informed by the CWC Welfare Officer that the prosecutrix had delivered a male child. On 30.9.2011 the prosecutrix was discharged and she was taken to child home girls. The parents of prosecutrix moved an application before the Ld. MM for taking her custody. In the court she moved an application for DNA test of the child but it was dismissed on 5.10.2011 copy of the order is Ex.PW13/F. CWC later released the prosecutrix to her parents. She verified the birth certificate from the MCD office.

19. On analyzing the testimonies of witnesses, it is revealed that PW2 Anuradha is the prosecutrix in this case, PW8 Sunita is her mother and PW7 Sonia is her chachi(aunty). PW2 Anuradha is the main star witness of the prosecution and the case of the prosecution hinges on her testimony. Charge has been framed in this case u/s 376/506 IPC. Considering the evidence available on file, the most important evidence to be looked into is the age of the prosecutrix at the time of her alleged rape because her age plays a decisive role in relation to the charge framed in this case u/s 376 IPC. Sec.375 contemplates:­ Rape - A man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances State Vs.Rakesh FIR no.156/11 Page No. 9 of 37 falling under any of the six following descriptions:­ First - Against her will.

Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly - With or without her consent, when she is under sixteen years of age.

20. In rape cases, the court must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. According to section 375 IPC there should be material to State Vs.Rakesh FIR no.156/11 Page No. 10 of 37 establish that either the alleged marriage or intercourse has taken place without the consent of the girl, if she is above the age of 18 years or 16 years as the case may be. Section 375 IPC has now two sub sections, namely sub section (1) and sub section (2) and for the offence of rape committed by the accused as specified in sub section (1) is different from that provided under sub section (2) of section 375 IPC. Therefore, there is an essential difference between the offences under sub section (1) and those under sub section (1) of section 375 IPC. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence.

21. So, in view of the definition of section 375 IPC, I have given my thoughtful consideration on the testimony of PWS. In this case the age of the prosecutrix is of material importance. PW2 Anuradha has deposed her age as 17 years before the Ld. MM when her statement u/s 164 Cr.PC Ex.PW1/D was recorded. Her mother Sunita examined as PW8 has deposed the age of prosecutrix as 15 years. In the initial statement of Sunita (mother of Prosecutrix) recorded by the IO she has stated the age of prosecutrix as 17 years. MLC Ex.PW8/A also bears the age as 17 years. PW8 Sunita (mother of the prosecutrix)has stated that she did not state the age of her daughter as 17 years to the police vol. The police had itself recorded her age as 17 years. She has also stated that her elder son Rinku is aged about 25 years. She had a daughter also who was younger State Vs.Rakesh FIR no.156/11 Page No. 11 of 37 to Rinku but she died about 5 years ago. Her youngest child is Mohit aged about 10 years. She had another son aged about 15 years now. It is crystal clear that PW8 has youngest child Mohit aged about 10 year and thereafter another son aged about 15 years. Thereafter the prosecutrix was born. However, no question put to this witness as to what is the difference between the birth of children. But even if it is considered that the age of son the complainant was 14 years on the date of incident (since the present case incident is reported to be of Jan.2011) it can be easily inferred that the prosecutrix would have been above 16 years of age at the time of alleged rape. Further PW7 Sonia has stated that one sister of prosecutrix had died at the age of 16 years in the hospital. PW8 Sunita, mother of prosecutrix has stated that her daughter died about 5 years ago. Her statement was recorded on 8.8.12. It means roughly her daughter would have been died around 2007. As per statement of PW7 she was 16 years old at that time and accordingly in the year 2011,she would have been 20/21 years old. After her, the present prosecutrix was born. However, age of PW13 ASI Manju Dhayani has stated that she got verified the age of the prosecutrix from MCD office as the certificate was handed over to her by Sonia PW7. The prosecution has examined PW9 Sh Raman Vij from the office of Sub Registrar Birth & Death who has stated that as per record the date of birth of Anuradha is 4.8.1995. The record is Ex.PW9/A. The date of birth mentioned in the record is 4.8.95. But in cross examination, PW9 has stated that no certificate or any other State Vs.Rakesh FIR no.156/11 Page No. 12 of 37 document in support of her date of birth was given at the time of giving information regarding date of birth as if the date of birth is reported within 21 days, no such documents are required. He has further stated that as per information Anuradha was born at home and as such no record of any hospital was annexed. The cross examination of PW9 is crystal clear that at the time of registration of birth, no document from the hospital was provided and as per information Anuradha was born at home. It is not believable that the birth of Anuradha would have been definitely registered within 21 days from the date of her birth or just after covering the period of 21 days, it was registered later on. There is every possibility of registering the date of birth at any time later on by counting the period of 21 days. However, even if the date of birth registered in the office of registrar is taken into consideration, the age of prosecutrix comes to be around 15 years and 6 months. However, considering the variation in age as stated by PW Anuradha and Sunita to be 17 years and as per certificate it comes to be 15 years 6 months and in consideration of the cross examination of PW9 and my discussion to this effect, I am of the view that the prosecutrix was fully grown up girl of above 16 years of age as on the date of incident and she was able to understand the ups and downs of society in today's modern life. The prosecution has not been able to prove by any cogent and convincing evidence that the prosecutrix was minor at the time of incident.

State Vs.Rakesh FIR no.156/11 Page No. 13 of 37

22. Reverting back to the deposition of PW2 Anuradha she has stated that she know accused Rakesh since her childhood. In the month of January 2011 at about 11 p.m/12 midnight she was lying on bed in her house at that time her sister in law Smt. Seema came to her and asked her to come to her room as she wanted to go in search of her brother Vinod. Thereafter she went. After sometime accused Rakesh came to her room and offered campa to her and told that it was given by her bhabi for her. She consumed that campa and thereafter she felt giddiness. Thereafter accused removed all her clothes. She does not know what he had done with her thereafter. The prosecutirx has further stated that next day she went out in gali to attend the call of nature/toilet and at that time she was called by accused giving a signal and he had shown some photographs in his mobile phone containing his obscene (naked) photographs which he had taken on previous night on his mobile. Accused has further told her that he had attempted to make physical relations with her on the previous night. The prosecutrix has further stated that accused used to torture/harass her on the basis of those photographs and also used to extend threat to her by killing her brother and father and he also used to threaten her that he would show her obscene photographs from his mobile to all. The prosecutrix has further alleged that thereafter accused had made forcible physical sexual relations with her by putting his penis in her vagina in her house as her bhabi generally used to remain in her parental home and at that time nobody used to remain in her house. She State Vs.Rakesh FIR no.156/11 Page No. 14 of 37 has further stated that in order to save her, she used to go to her friends house. Even before accused raped her, he used to come to their house and he used to play cards with her brothers. She has further stated that 10­15 days before the delivery of her child she was taken to hospital by her mother as she was not feeling well and thereafter they were told that she was pregnant. The child was of accused Rakesh. She has further stated that even earlier she had some problem of her liver due to which she was having watering infection in her liver as well as stomach so her pregnancy could not be found and detected earlier by her family members and herself. She was raped by accused 4­5 times in the month of Jan and February 2011. She has further stated that she gave statement to Ld. MM which is Ex.PW1/D. She was declared hostile by the Ld. APP for the State wherein she has admitted the suggest put by the Ld. APP in affirmative that she stated in her statement u/s 164 Cr.PC that after consuming campa given to her by accused, she felt unconscious and thereafter she was raped by the accused due to perplex she stated that accused attempted to rape her. In cross examination she has admitted that where the accused offered her campa i.e. their jhuggi in which her parents with her other brothers are residing. The names of brother are Mohit, Rohit and Vinod. She admitted that the jhuggi is about 8x10 sq.yards. It is correct that the jhuggi is surrounded by other jhuggies of their relatives. The Jhuggi of Rakesh is situated in the same locality. There is street light in their jhuggi area. The jhuggi of her aunt Sonia is State Vs.Rakesh FIR no.156/11 Page No. 15 of 37 adjacent to their jhuggi. They had hardly visiting terms with her aunt Sonia. After January, February her monthly period has been stopped. She did not tell about this fact to her mother as she used to have irregular period earlier also. She admitted that she did not disclose to her mother about stopping her monthly period after 5­6 months. She admitted that she did not disclosed about stopping of her monthly period till she was examined by the doctor in the month of Sept.2011. She admitted that the parental house of her aunt Sonia is in Badli. The nephew of her aunt Sonia used to visit in their jhuggi as and when they used to visit the jhuggi of her aunt. Her Aunt Sonia is having a son namely Sagar aged about 20 to 22 years. She denied that she used to accompany him to the park and she had sexual relations with Sagar. She has further stated that when her pregnancy was detected by the doctor, her mother told this to her father and thereafter a panchayat was held in her jhuggi area and then the panchayat people suggested her and her family member to lodge a complaint and then on 21.09.2011 after six days of her detection of her pregnancy the complaint was lodged. She has further stated that she does not know how many times her statement was recorded by the police. She denied that Sagar was present in the jhuggi of her Chachi Sonia on that day. She does not know at that time her bhabi Seema returned after she had left for the search of her husband. In her jhuggi she alongwith her mother, father and brother were residing. She made improvement that she came out in the gali to attend the call of nature and at that time she State Vs.Rakesh FIR no.156/11 Page No. 16 of 37 was called by accused Rakesh by giving a signal. She has also made improvement in her statement that accused had shown her obscene and naked photographs which he had taken on previous night. She has also made improvement in her statement that accused had attempted to make physical relations with her on the previous night. She has further made improvement that thereafter accused used to harass her and he also used to extend threats to kill her brother and father. She has further made improvement by stating that thereafter accused had made physical relations with her by putting her penis in her vagina when nobody remains present in their house. She made improvement that her bhabi generally used to remain at her parental home. She made improvement that in order to save herself she used to go to her friends house. She has made improvement that accused used to come to their house to play cards with her brother in their house. The has further made improvement that 10­15 days before the delivery of her child she was taken to hospital by her mother Smt. Sunita as she was not feeling well and after her examination they were told by the doctor that she was pregnant and the child was of accused Rakesh. She had also made improvement by stating that she had problem in her liver and therefore pregnancy could not be detected and that she was raped by accused 4­5 times in Jan.&Feb.2011. She admitted that Rahul is the son of elder sister of her chachi. He is aged about 18 to 20 years. She admitted that one another boy Akash is relative of her chachi Sonia. Akash and Rahul used to visit the house of her State Vs.Rakesh FIR no.156/11 Page No. 17 of 37 chachi. She denied that she had illicit relations with Rahul , Akash and Sagar or that her son is the son of Rahul, Sagar and Akash. She admitted that Rakesh used to visit her house. She did not raise alarm when obscene photographs were shown to her by the accused. She denied that she did not inform about her pregnancy as she became pregnant due to her illicit relations with Sagar, Akash and Rahul. She denied the suggestion that her father had some dispute with the father of Rakesh and therefore he has been falsely implicated in this case.

23. In her statement prosecutrix Anuradha has stated that in the month of January 2011 at about 11 p.m/12 mignight her sister in law came and asked her to come to her jhuggi as she wanted to go in search of her brother and thereafter Rakesh came and gave campa stating that it was given by her sister in law. First of all the prosecutrix had improved this version as it is not written in statement Ex.PW1/D. Secondly,the time of coming of Rakesh to the jhuggi of her bhabi (sister in law) is stated to be 11p.m/12 midnight after which sister in law of prosecutrix had gone to search her husband. The period during which this had happened is January when there is extreme cold in Delhi and the campa offered by accused had been consumed by the prosecutrix. The alleged campa was allegedly sent by the sister in law of prosecutrix. Sister­in­law of prosecutrix had asked the prosecutrix herself to come to her jhuggi. She herself did not gave her campa when she called the prosecutrix. Giving State Vs.Rakesh FIR no.156/11 Page No. 18 of 37 of campa is doubtful as it was the month of January when there is too cold in winter and specifically when the said campa was allegedly given in the midnight. The prosecutrix has further stated that she started feeling giddiness after consuming the campa and accused removed all her clothes. It is crystal clear that after consuming campa the prosecutrix started feeling giddiness but she did not state that she became unconscious. The jhuggi of parents of prosecutrix was adjoining the jhuggi of her bhabi(sister in law). But prosecutrix did not raise any noise or screamed in order to save herself from the clutches of accused. She herself has stated that accused removed all her clothes which means that she was conscious when her clothes were removed. But despite that she did not raise any alarm while her parents were sleeping in the adjoining jhuggi. The prosecution has examined PW8 Smt. Sunita who is mother of prosecutrix Anuradha. She has not stated that Sonia had come to her jhuggi to call Anuradha on that night or that she had gone in search of her husband. Had this happened, PW8 or husband would have known about it. I have also perused the testimony of Sonia PW7. She has nowhere stated that she had called prosecutrix Anuradha on that night to her jhuggi as she was going in search of her husband. Therefore it is crystal clear that Sonia had never called Anuradha to her jhuggi to sleep and no such incident of giving campa laced with stupefying substance was given by the accused and the clothes of prosecutrix was not removed by the accused and she was not raped on that day.

State Vs.Rakesh FIR no.156/11 Page No. 19 of 37

24. The prosecutrix in her examination in chief has stated that she was called by PW7 Sonia to her jhuggi where campa was given to her by accused and thereafter he removed her clothes which means the incident had taken place in the jhuggi of PW7 Sonia. But in cross examination the prosecutrix herself has admitted that where the accused offered her campa i.e. their jhuggi in which her parents with her other brothers are residing and their jhuggi is 8x10 sq.yards. PW13 IO ASI Manju Dhyanai has also stated that the incident had taken place in the jhuggi of the brother of prosecutrix and she did not record the statement of Bhabi, brother Vinod and father of the prosecutrix. She did not record the statement of any neighbourers. The prosecutrix has herself created doubt in this case regarding the place of incident. The prosecution could not establish as to whether the incident of rape had taken place in the jhuggi of PW7 Sonia or in the jhuggi of parents of prosecutrix.

25. The prosecutrix has further alleged that accused had taken her obscene photographs in his mobile. The time is incident is alleged at 11/12 midnight. There is no evidence on record as to when PW7 Sonia returned back to her jhuggi on that night. There is also no evidence as to whether there was light in the said jhuggi or not. No recovery of mobile has been effected from the accused containing the alleged obscene photographs of prosecutrix.

State Vs.Rakesh FIR no.156/11 Page No. 20 of 37

26. The prosecutrix herself has stated that accused told her that he attempted to make physical relations with her on the previous night. Firstly, the prosecutrix has improved this version. Further, this version of prosecutrix is doubtful as it means that accused had not made any physical relations on that night with prosecutrix. She herself is not sure as to whether accused had made physical relations with her on the previous night or not while she is a prosecutrix.

27. Another allegation is that accused used to threatened her that he would show her photographs to all. In view of the cross examination, the prosecutrix had made improvement that she was called by the accused by giving signal when she was going to attend the call of nature and had shown her some photographs in his mobile which were her obscene and naked photographs as it is not exactly recorded. The incident of that night as discussed above is doubtful since PW7 has not corroborated the version of PW2 Anuradha prosecutrix that she called her to jhuggi on that day. The place of incident is doubtful as prosecutrix herself has changed her version in this respect. So, there is no question of taking any obscene photographs of the prosecutrix. Further, the prosecution has failed to recover the said mobile phone of the accused and no such photographs has ever been recovered from the accused. As per version of the prosecution the alleged mobile phone was thrown by accused after breaking in dustbin. Accused in his statement u/s 313 Cr.PC has stated State Vs.Rakesh FIR no.156/11 Page No. 21 of 37 that he was shown arrested in the present false case and his mobile phone was also taken by the IO and IO checked the same and never returned the same to him. His mobile phone number is 9250056193. He has further stated that on 9.9.12 he made call on this mobile and IO listened the call and told that it is a wrong number and switched off the mobile till today. PW13 IO/ASI Manju in cross examination has stated that the prosecutrix as well as accused could not given the number and make of mobile. It is strange that accused did not disclose his number to IO while before the court in his statement he has disclosed his mobile number. Though accused did not examine any witness in his defence from the service provider but his version cannot be kept aside. There was no question for accused to throw his mobile phone and if he was to throw something, he would have thrown the memory card. It seems that nothing incriminating was recovered from the mobile phone of accused and therefore the prosecution has opted not to produce it in the court.

28. Another allegation is that the accused used to commit rape upon prosecutrix forcibly after showing the said clips when her bhabi used to remain in her parental home and nobody used to remain at her house. She further stated that in order to save her self form accused she used to go to her friends house. This version of the prosecutrix is also an improved version since not stated to the police. Even her version that accused had made physical relations with her by putting his penis in her State Vs.Rakesh FIR no.156/11 Page No. 22 of 37 vagina when nobody remains present at house has also come under improvement. However, if the prosecutrix used to visit her friends house, she was free to apprise them about the incident being taken place with her. But she never tried to inform anyone in this respect. Preparing of obscene video clips is highly doubtful since no recovery has been effected from the accused. The prosecutrix has also improved her version that accused used to harass her and also used to extend threats to kill her brother and father. It seems that she was not under any threat and had the present accused committed such an act with her, she was free to tell her parents and PW7 Sonia. But she failed to do so which create doubt in the prosecution case.

29. Another allegation is that she was taken to hospital by her mother where doctor told her that she was pregnant. She has further stated that even earlier she had some problem of her liver due to which she was having watering infection in her liver as well as stomach so her pregnancy could not be found and detected earlier by her family members and herself. PW8 mother of the prosecutrix has stated that she took her to the doctor where it was disclosed that prosecutrix is pregnant. As far as the version of prosecutrix that due to problem in live her pregnancy could not be detected, there is no such paper of treatment placed on record that the prosecutrix was suffering from any such disease. Further, in this case the incident of rape as alleged to have been committed in the month of State Vs.Rakesh FIR no.156/11 Page No. 23 of 37 January due to which prosecutrix became pregnant. The mother of the prosecutrix has stated that she took the prosecutrix to doctor in the month of Rakhi i.e. August. It is crystal clear that the prosecutrix was taken to the doctor after eight months of her pregnancy by the mother of the prosecutrix. The prosecutrix has stated that she had irregular periods but further admitted that even after stopping of her period i.e. after 5 th and 6th months, she did not inform anyone. The prosecutrix was a grown up girl and well aware about the stopping of period. But still she did not inform anyone and kept on waiting for 8 months. Even till her examination she did not disclose about stopping of her periods. It is strange to note that a girl who knows well that her period had stopped because of her pregnancy would not let it clarify from her mother.PW8 Sunita who is the mother of prosecutrix has stated in cross examination that she did not notice any physical change i.e. enlargement of stomach of her daughter before she was taken to the doctor. It is also strange to note that a mother who knows well about pregnancy did not notice the enlargement of stomach of her daughter during her 8 months pregnancy. Pregnancy of a girl/woman can be identified at first sight by anyone as soon as her stomach starts enlarging. From the facts of the case it is manifest that the mother of prosecutrix, prosecutrix herself as well as her aunt PW7 Sonia were well aware of the pregnancy of Anuradha (unmarried) but they do not want to disclose the correct story behind this and it seems that they have disclosed only the concocted story. State Vs.Rakesh FIR no.156/11 Page No. 24 of 37

30. The prosecutrix has stated that accused raped her 4­5 times in the month of January and February. 2011. She has nowhere stated that she was raped before or after Jan and Feb.2011. She has also not stated that accused has ever met her after Feb.2011 or shown her obscene clips. It is manifest that after Feb.2011 there no threatening extended by accused and the prosecutrix was free to make any complaint against him. She was fully grown up girl. She was residing with her parents, brother and PW7 Sonia. But she never reported about this incident to anyone.

31. The accused has taken the plea that he was falsely implicated in this case. It has come in the cross examination of PW8 Sunita(mother of the prosecutrix) that it is incorrect that there used to be dispute between her and the mother of accused Rakesh. She further denied the suggestion that a kalandra u/s 151/107 Cr.PC was prepared regarding dispute between her husband and the father of accused Rakesh. The accused has stated in his statement of account u/s 313 Cr.PC that in the month of Dec. 2010 he was going to his house and Anuradha and three boys were sitting in the park and they acted obscene acts with Anuradha. He objected the same being neighbour. On this the three boys and Anuradha threatened him with dire consequences and also threatened to involve him in a false criminal case. He went to his house and on 17.9.2011 he was called by the Police of PS Naraina. In cross examinationPW7 Sonia has stated that her State Vs.Rakesh FIR no.156/11 Page No. 25 of 37 eldest son Sagar is 19 years old. Her elder sister son's name is Rahul whose nick name is Don. She also admitted that name of son of her sister in law(devrani) is Akash @ Tummi and both aged about 20 years and 18 years. She admitted that Akash and Rahul used to visit her house VOL. Accused also used to visit her house and play cards there. Suggestion has been put by Ld. Defence counsel that real culprits are Rahul, Sagar and Akash. PW8 Sunita who is the mother of the prosecution has given contradictory version to the version of PW7 as she has stated that Rahul and Sagar never used to visit the house of their mausi Sonia. She has also stated that they never used to come to her jhuggi. PW8 Sunita has further stated in cross examination that it is incorrect that in the last year some quarrel had taken place in park near their house from where her daughter/prosecutrix was brought after putting a chaddar (bed sheet) upon her as she was lying naked there or that on that day accused Rakesh had tried to save the prosecutrix or that there she was present with Sagar, Rahul@Don and Tomy @ Akash. PW2 Anuradha in cross examination has stated that Rahul is the son of elder sister of her chachi and another boy Akash is the relatives of her chachi Sonia. Akash and Rahul used to visit the house of her chachi. She denied the suggestion that she is having illicit relations with Akash, Rahul and Sagar. Though the above suggestion have been denied by the prosecutrix, her mother and her chachi Sonia but the accused has specifically named the responsible persons for this act. Since the child was born, it was necessary for the State Vs.Rakesh FIR no.156/11 Page No. 26 of 37 prosecution to establish the biological father of the child by conducting the DNA test. The prosecution had filed an application before the Ld. MM in this respect but the said application was dismissed by the Ld.MM. Thereafter, the prosecution kept silent and did not file any revision against that order. The onus to prove this fact was on the prosecution and it would have been the best evidence to establish as to whose child it was. But the prosecution has failed to establish that the born out child was of present accused Rakesh.

32. I have also perused the testimony of PW3 Dr. Kavita Aggarwal who prepared the MLC of prosecutrix which is Ex.PW3/A. As per her version the prosecutrix was 36 weeks pregnant and the patient complaint of etching all over the body since her conception. It is crystal clear that since conception the prosecutrix had etching all over the body but still she did not inform anyone from the family and never visited the doctor. PW3 has specifically stated in her cross examination that since the lady was about eight and eight and half month pregnant, so nothing could be said if it was rape or it was a case of willingness as whatever according to her happened about 8­8 and half months ago. The doctor who examined the prosecutrix has also opined that it cannot be said that if it was a rape or it was a case of willingness.

33. The present case was registered on the statement of Sunita State Vs.Rakesh FIR no.156/11 Page No. 27 of 37 (PW8), mother of the complainant on 21.09.2011. The present case incident is alleged to have been committed during January 2011. In case law State Vs. Anwar Hussain, 2012(2) JCC 874 it is stated that :­ 'Penal Code, 1860 - Sec. 376 - Acquittal­ Prosecution hinges on the testimony of prosecutrix who was aged about five years - No explanation for inordinate delay in lodging the FIR when the place of occurrence was at a distance of about 1­1 and half km from the PS - In the MLC, no physical injuries were found on the private part of the accused - In the MLC, no bruises were seen locally on valva; the vagina was found re­in­flamed - No cogent evidence came on record to prove that on the date, time and place alleged by the prosecution sexual activity took with the prosecutrix­ deficiencies and inconsistencies in the prosecution's case - required the court to look for corroboration - Lacking of - Appeal is dismissed'. In case Law Ram Saran & Anr State of NCT of Delhi, 201291) JCC 68 it is stated in head note that :­ Penal Code, 1850 - Sec. 376/34 - Conviction under - Acquittal - Incident took place on the Diwali day - Highly impossible that there will be no public witness - In FIR she has categorically named two persons who had committed rape on her­ whereas she states the presence of 2­3 persons - Creates a doubt in the prosecution version and same lay the foundation of doubt - Benefit of which must be given to the appellant - Delay of 9 days in reporting the matter to police by prosecutrix - No documentary evidence in the form of MLC - Both appellants are acquitted­ Appeal is allowed.

34. In view of the above case law, it is admitted fact that the present case incident had taken place in Jan.2011 and the FIR was lodged on 21.09.2011. The prosecutrix has not alleged that after Jan./Feb.2011 she was ever threatened by the accused. Despite that the prosecutrix was pregnant and some physical changes would have been noticed by the State Vs.Rakesh FIR no.156/11 Page No. 28 of 37 family members of prosecutrix, they did not prefer to report the matter when such physical changes were noticed but instead they waited till the birth of child. In my view there is inordinate delay in registration of the present case FIR.

35. I have also perused the statements of other witnesses. PW1 Ms. Shelly Arora is the Ld. MM who recorded the statement of prosecutrix u/s 164 Cr.PC. I have also perused the said statement as well as statement recorded u/s 161 Cr.PC by the police. On perusal of both the statements, it is revealed that the prosecutrix has not made consistent statement regarding the incident. She herself has created doubt about the case by stating two place of incidents, one at the jhuggi of her chachi Sonia and another at her own jhuggi. She has made glaring improvements in her statement and her statements are unreliable. PW3 Dr. Kavita has examined the prosecutrix with 36 weeks pregnancy and in her cross examination she has stated that since the pregnancy was about 8­8 and half month so, nothing could be said if it was rape or it was a case of willingness. PW4 has examined the accused. PW5 Ct. Hari Chand, PW6 L/Ct. Jaywanti are the witnesses of arrest of accused. AS per their version accused was arrested on 21.09.2011. But accused has disputed his arrested by stating that on 17.9.2011 police called him in PS Naraina. He alongwith his family went to PS and illegally detained in the PS and on 21.9.2011 he was shown arrested in the present false case. I have perused State Vs.Rakesh FIR no.156/11 Page No. 29 of 37 the arrest memo of the accused. According to arrest memo, he was arrested at 10 p.m. PW5 Ct. Hari Chand, PW6 L/Ct Jaywanti as well as IO PW13 ASI Manju have stated about arrest of accused Rakesh on 21.09.2011. I have also perused the arrest memo. As per arrest memo accused was arrested at 10 pm. As per statement of PW5 they had gone to Naraina village at about 5­5.30 p.m and as per statement of PW6 L/Ct. Jaywanti they left PS in the evening at about 4.30­500 p.m. PW2 Anuradha prosecutrix has stated that the accused was apprehended by the police on her identification. PW5&6 have stated that chachi Sonia and mother Sunita of prosecutrix were present at the time of arrest. But on perusal of their statement, it is revealed that they have not corroborated the version of prosecution regarding arrest of accused. Further the time of arrest is stated to be 10 p.m while as per PW5&6 they went to Naraina village at 4.30­5.00 p.m. There is no evidence that after how much time accused came or seen by them. Presence of prosecutrix at 10 p.m with the police staff is doubtful when she herself has not stated this fact in her statement. PW7 Sonia is the chachi of prosecutrix and PW8 Sunita is her mother. On perusal of their cross examinations it is revealed that both these witnesses have made improvements in their statements. Infact both these witnesses used to live with prosecutrix but they never came to know about her pregnancy for 9 months and it is strange to note that they did not notice any enlargement of stomach during this period. This create doubt about the story of prosecution and false implication of accused State Vs.Rakesh FIR no.156/11 Page No. 30 of 37 cannot be ruled out. PW10 Dr. Chetan Kumar has examined the accused and opined that he was capable of performing sexual intercourse. PW11 ASI Shankar Lal is the formal witness who recorded the FIR of this case. However, as per the case of the prosecution the incident had taken place in Jan/Feb.2011 while the present case was registered in the month of Sept.2012. So, in my view there is inordinate delay in recording the present FIR. PW12 Ct. Moti Lal joined the investigation with IO and PW13 ASI Manju is the IO of this case who in cross examination has stated that she received the DD on 21.09.2011. She admitted that there are number of jhuggies adjoining the jhuggi of prosecutrix inhabited by people and on seeing the police party the said residents of jhuggies had left and nobody came forward to join the investigation. She did not prepare the site plan of the spot. She did not record the statement of any neighbourer mentioning that they had seen accused Rakesh going to the jhuggi of prosecutrix or her brother. She admitted that doctor had not given any opinion during the medical examination of the prosecutrix on the point of rape. She denied that during her investigation it came that accused was innocent and had not done any wrong act of rape with the prosecutrix or that she got the false case registered under pressure of the residents of jhuggies and SHO. She denied the suggestion that during investigation it came that prosecutrix was raped by Rahul @ Don, Sagar and Akash @ Tomi or that the accused was named by the prosecutrix and her family members due to a quarrel with accused Rakesh which had State Vs.Rakesh FIR no.156/11 Page No. 31 of 37 taken place earlier.

36. It is also settled law that evidence of prosecutrix must be given predominant consideration but to hold that this evidence has to be accepted even within the story is improbable and belies logic would be doing violence to the very principles which goes appreciation of evidence in a criminal matter and some supporting evidence was essential for prosecution case in view of falacious prosecution version.

37. It is true that the prosecutrix in a rape case cannot be considered as an accomplice and there is no rule of law that her evidence cannot be considered without corroboration. But natural question is whether the solitary testimony of the prosecutrix inspires confidence, appears probable and under the circumstances can be considered as worth of credit even without corroboration.

38. In Madho Ram and another V The State of U.P., AIR 1973 SC 469 it has been observed:

The prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person,accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of State Vs.Rakesh FIR no.156/11 Page No. 32 of 37 corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.

39. It was held in case Bharwada Bhoginbhai Hirjibhai V State of Gujrat, AIR 1983 SC 753 (1) as under:

'Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society'.

40. It is stated in case law Radhu Vs. State of Madhya Pradesh, 2007(4) JCC 2603 that :­ 'Evidence of a prosecutrix as a whole - Full of discrepancies - Does not inspire confidence - Gaps in evidence - Improbable that such an incident even took place - the fact that defence had failed to prove indebtedness or any other motive for false implication does not have any relevance - Prosecution fails miserably to prove the charge - Evidence not warranting in finding guilt at all - Trial court and High court erred in finding of guilt­ appeal allowed ­ Judgments of courts below set aside­ accused acquitted of all the charges'. It is stated in case law Pradeed @ Sonu VS. State (Govt of NCT of Delhi), 2011 (2) JCC 1031 that :­ 'Penal Code 1860 - Sec. 376 - Offence of rape - False implication in

- Not uncommon - charges of rape are not uncommon - In some cases parents do pursuade gullible or obedient daughter to make false charge of rape either to take revenge or extort money or to get rid of State Vs.Rakesh FIR no.156/11 Page No. 33 of 37 financial liability.

Appreciation of evidence - False implication - failure of defence to prove motive for false implication will be inconsequential where prosecution had failed to prove the charges.

41. Section 376 IPC contemplates ­Punishment for rape. In this case the prosecutrix had become pregnant but she did not make any complaint for 8 months She delivered baby on 27.9.2011 and the present complaint was made on 21.09.2011 i.e. before about 8 days of delivery. There is no explanation as to why the prosecutrix or her family members kept silent for nine months. They did so for the reasons best known to them. The prosecutrix is a fully grown up girl. She was in the age of discretion, sensible and aware of the ups and down of the society. But she lodged the present complaint when the baby was to be delivered. In case law 2010 (2) JCC 1337 Sonu Vs. State of Delhi it is stated in head notes that :­ 'Penal Code, 1860 - Sec. 376 - Prosecutrix being more than 16 years of age and having accompanied the appellant of her own free will and accord - She being a consenting party, ingredients of the offence of rape are not attracted - Accordingly appellant acquitted of the offence u/s 376.'

42. In case Law (2003) 1 Supreme Court Cases 605, Jinish Lal Sah Vs. State of Bihar it has been stated in head note (C) that:­ 'Penal Code, 1860 ­S. 376 - rape - Whether there was consent - Evidence showing that prosecutrix had planned her departure from her house in advance and had willingly gone away with the accused ­appellant - Held, this indicates that there was no threat or State Vs.Rakesh FIR no.156/11 Page No. 34 of 37 inducement either in regard to her leaving the house or in regard to accompanying the appellant - In such a situation, in absence of any other material to show to the contrary, accused­appellant cannot be held to have raped the prosecutrix.'

43. In the present case the prosecutrix did not lodge any complaint for nine months. It is not digestible in the society of Indian set up that the girl and her family members kept mum for nine months after rape while the girl was pregnant and her body structure must have changed during the said period. She did not state that accused had ever met her after Jan.& Feb.2011. This shows that she was not under any threat or inducement.

44. Section 506 IPC contemplates ­punishment for criminal intimidation - The prosecutrix has stated that she was shown her naked photographs by the accused and he threatened her that he will show the same to all and he used to torture and harass her on the basis of those photographs that he will kill her father and brother. In the present case no such photographs recovered from the accused. Even the mobile phone of the accused could not be recovered. IO has stated that accused did not know the make and number of his mobile phone. This version of IO create doubt in the mind as it is impossible that a person possessing mobile shall not be able to tell his mobile number and make. The prosecution has alleged that the mobile phone was broken by the accused and thrown in dustbin. It has not been brought on record as & when the State Vs.Rakesh FIR no.156/11 Page No. 35 of 37 said mobile phone was broken by the accused and why he had broken it when the complaint was not lodged against him for 9 months and after lodging of complaint he was suddenly arrested. So, there was no question for accused to break his mobile and thrown in the dustbin. In my view there was no clipping in the mobile of accused and prosecution has failed to connect the accused in this case with the present case crime.

45. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that :­ "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".

46. As a sequel to my findings above and facts and circumstances of the case, I am of the view that the prosecution has utterly failed in proving the guilt of the accused Rakesh and the accused is entitled for the benefit of doubt. I, therefore give the benefit of doubt to accused Rakesh. State Vs.Rakesh FIR no.156/11 Page No. 36 of 37 He is acquitted from the charges levelled against him u/s 376/506 IPC. Accused is on bail. He is directed to furnish fresh bail bond for a sum of Rs.25,000/­ with one surety in the like amount as per provisions of section 437A IPC. File be consigned to record room. Announced in the open Court on 15.10.2011.

(SURESH CHAND RAJAN) ADDL.SESSIONSJUDGE/ SPECIAL JUDGE(NDPS) (South West District) Dwarka Courts/ NEW DELHI State Vs.Rakesh FIR no.156/11 Page No. 37 of 37