Delhi District Court
State vs . Rakesh on 30 September, 2014
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IN THE COURT OF SHRI YOGESH KHANNA,
ADDITIONAL SESSIONS JUDGE - SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique ID No. 02406R0027482010
SC No. : 123/2014
FIR No. : 431/2009
U/s. : 376 (1) IPC
PS : Okhla Industrial Area, New Delhi.
State
(Govt. of NCT of Delhi)
........................ Complainant
Versus
Rakesh
S/o Nathu Singh
R/o D-3/83, Sangam Vihar
New Delhi.
.........................Accused
Date of Institution : 15-01-2010
Judgment reserved for orders on : 20-09-2014
Date of pronouncement : 30-09-2014
JUDGMENT
1. In the intervening night of 16/17-10-2009 an information was received at P.S. Okhla Industrial Area that a lady is being harassed by some boys near gas godown, Okhla Phase-II, Delhi. It was reduced into DD State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 1
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entry no. 24-A and was entrusted to ASI Rajender Singh for taking appropriate action. The said ASI, with a constable, reached the spot where they found a lady in an inebriated and incoherent state. The ASI took the lady to AIIMS for her medical examination and doctor opined that she was unconscious, disoriented and her alcohol breath test was found positive. She was not in senses to give her statement to ASI Rajender Singh and hence he lodged DD No. 26-A in this regard.
On receipt of the said DD no. 26-A, the Investigating Officer along with Ct Radha reached at AIIMS and made enquiries from the said lady. She still appeared to be under the influence of alcohol and could not give her statement. The Investigating Officer left the lady at her house. Later when she gained consciousness, the said prosecutrix gave the following statement :
"I am residing at the above address with my children. My husband Nabijan has since expired, now I an residing with Mukesh @ Kallu, I have a child from him. On 16-10.2009 I had gone to Dasna State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 2
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Jail to meet Kallu and returned at about 4 PM at my residence. I did not have a gas connection and hence was feeling difficulty in my household work. About 3-4 days ago, one of my friend, had introduced me to one Rakesh, engaged in supply of gas culinders at gas godown, Okhla, Phase-II, Delhi. He had promised me to get me a gas cylinder at a reasonable price. Today on 16-10-2009 at about 5 PM Rakesh had telephoned me and asked me to meet him at 6 PM at C-Lal Chowk. He again called me at 6 PM and told me that he is standing at C-Lal Chowk and I should come early. At about 6:20 PM I reached C-Lal Chowk and met Rakesh. He told me that his boss Rajesh would come within few minutes and would give her a cylinder. I had met Rajesh once earlier through Rakesh. He is a Manager of the gas godown. After few minutes Rajesh came there in his Swift car no. 404. When I requested him for a cylinder, he asked me to sit in his car to visit gas godown. I went with him. In the gas godown, Rajesh asked me to take cold drink and sweets.
After taking cold drink I got convulsions and become semi-
unconscious. The cold drink was brought by one person, namely, Prem. Thereafter, they all took me to a jungle, put me on a bench and removed my salwar. I resisted to save myself but since I was State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 3
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intoxicated, I could not do much. Firstly Rajesh took off his pant and laid upon me and committed rape. Then Rakesh and Prem removed their clothes and committed rape upon me. I kept weeping.
Thereafter, they left me in the jungle. I somehow managed to reach the gas godown where some person helped me and called police. Police brought me to hospital and now my statement is being recorded.
2. On the basis of the above statement, FIR no. 431/2009 under section 376 IPC was registered at P.S. Okhla Industrial Area, New Delhi. The complete medical examination of the prosecutrix was conducted at AIIMS. Sealed pullandas containing her undergarments; vaginal smears, sealed with the seal of CMO, AIIMS hospital, were given to police and it was seized; site plan was prepared. During the examination by the Investigating Officer she gave different versions. The prosecutrix even stated that she was raped only by Rakesh and not by Rajesh or Prem and she had named Rajesh and Prem at the instance of one Majoj. Her statement in detail was recorded under section 161 Cr.P.C. in this regard.
3. On 19-10-2009 she made yet another statement State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 4
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under section 164 Cr.P.C. wherein she alleged that she knows one Gautam Tkekedar with whom she is working on contract basis and that he had asked her to get Rajesh, Rakesh and Prem, arrested in a false rape case. Initially she refused but he kept on ringing her everyday and asked her to do this work. Rakesh had taken Rs. 4000/- from her.
He had given her sweets and cold drink. After taking the sweets, she was not able to speak properly. Rakesh had committed rape upon her. Perhaps there were one or two other person, but she could not remember if they had also committed rape upon her. Manoj had not done wrong with her.
After completion of investigation, the charge sheet was filed.
4. Since it was a Session's triable case, it was committed to this court. On 7-10-2010, a charge under section 376 IPC was framed against the accused. He pleaded not guilty and claim trial.
5. The prosecution examined as many as 11 State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 5
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witnesses. Before proceeding further, let me state in brief the depositions made by the prosecution witnesses.
PW1 is the prosecutrix.
PW2 HC Rajinder Singh, recorded the FIR Ex.PW2/A and also made endorsement Ex.PW2/B on the Rukka.
PW3 Dr. Garima Kachhawa had examined the prosecutrix vide MLC Ex.PW3/A and handed over the lower garment, vaginal smears of the prosecutrix to the police, after sealing it with the seal of hospital. She also prepared the emergency admission paper Ex.PW3/B for her stomach wash.
No external or internal injury was found on the patient.
PW4 SI Rajender Singh, on receipt of DD NO. 24-A at about 1:44 am, with Ct Dinesh, had reached gas godown, H.P Enterprises behind bus depot, Kalkaji, Delhi. The prosecutrix met him there. She was under the influence of liquor and was unable to tell anything. She was taken to AIIMS where she was medically examined. Later he handed over the prosecutrix to SI Mukesh Baliyan who came there along with lady constable Radha.
PW5 Manish, on the intervening night of 16/17-10-2009 was lying on a takhat outside the State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 6
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godown. One lady came there. She took off his blanket and requested him to save her. She disclosed her identity. He then contacted Rajesh, the Manager, who requested him to call PCR. He also contacted Manoj, a store keeper, on phone who assured him that he was coming. PCR reached there and took the lady with him.
PW6 Ct Radha, on 17-10-2009, at about 3 AM was posted at P.S Okhla Industrial Area, Delhi. She went with SI Mukesh to AIIMS where the prosecutrix met her with ASI Rajender. The prosecutrix appeared to be in a state of drowsiness. The doctors refused to medically examine her. She took the lady at her house at Govind Puri, New Delhi. She was deputed by the Investigating Officer to keep watch on the prosecutrix at her house till she comes to senses. At about 10/ 10:15 AM, PW6 found the prosecutrix in her senses, she informed SI Mukesh. Thereafter, they took the prosecutrix to AIIMS where she was medically examined. At about 4 PM, they all, with the prosecutrix, went in a DDA jungle, Chandewalan, where on the pointing of the prosecutrix, a site plan Ex.PW6/A was prepared.
State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 7
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PW7 Shri Tarun Khurana proved the Customer Application Form Ex.PW7/A of mobile no.
9910758631 in the name of one Umesh ; the Customer Application Form Ex.PW7/B in respect of mobile no. 9810401121 in the name of Rajesh Kumar and the call records of both these mobile phones are proved as Ex.PW7/C and Ex.PW7/D. He brought the cell ID chart Ex.PW7/E showing the location of the aforesaid mobile and also the certificate Ex.PW7/F under section 65-B of the Indian Evidence Act.
PW8 another Ct. Radha, on
17-10-2009 had taken the
prosecutrix for her medical
examination at AIIMS where one sealed pullanda containing exhibits were handed over to her by the doctor which she gave to the Investigating Officer.
PW9 Ct. Balbeer Singh, on 20-10-2009, had witnesseth the arrest of accused Rakesh vide memo Ex.PW9/A; and the disclosure Ex.PW9/B. Accused was got medically examined at AIIMS and the doctor handed over to PW9 two sealed pullandas along with a sample seal, seized by the Investigating Officer vide memo Ex.PW9/C. Accused also led to the spot and a pointing out memo Ex.PW9/D was prepared.
PW10 Shri S.P.S Laler, Ld. MM, on 19-10-2009 had recorded the statement Ex.PW1/B of the State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 8
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prosecutrix and gave a certificate Ex.PW10/B regarding its correctness. He also proved the application Ex.PW10/A filed by the Investigating Officer to record the statement of the prosecutrix. He also proved his order Ex.PW10/C on the application Ex.PW10/D and handed over a copy of the statement under section 164 Cr.P.C to the Investigation Officer.
PW11 SI Mukesh Baliyan, on the intervening night of 16/17-10-2009, on receipt of DD No. 26-A along with Ct. Radha had gone to AIIMS where ASI Rajender handed over the prosecutrix to him. She was unable to speak and was intoxicated so he took the prosecutrix to her house and deputed Ct. Radha there. On 17-10-2009 at about 2:30 PM he got information from Ct Radha that the prosecutrix is conscious, so he went to the house of the prosecutrix and then took the prosecutrix to AIIMS where the doctor had medically examined her. Then PW11 recorded the statement Ex.PW1/A of the prosecutrix and made endorse- ment Ex.PW11/A on it and got the FIR registered. Then they went to the spot where site plan Ex.PW6/A was prepared at the instance of the prosecutrix. Crime Team also reached there and gave its report. PW11 then came to know that the husband of victim was still alive whereas the victim had told her State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 9
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that her husband had expired. He obtained the Call Detail Report of the mobile of the prosecutrix and also that of Rajesh, Rakesh and Prem, the suspects. On 19-10-2009 she got the statement under section 164 Cr.P.C of the prosecutrix recorded. On 20-10-2009, accused Rakesh was arrested by him and was got medically examined and his exhibits were seized. The personal search of accused was taken vide memo Ex.PW11/B. Pointing out memo was also prepared.
On 17-10-2009 he also seized the exhibits belonging to the prosecutrix vide memo Ex.PW11/C. The scrutiny of the call record showed that accused Rakesh was in constant touch with the prosecutrix on the day of incident but whereas other two accused were not found in the vicinity of spot at the time of incident and hence, they were not charge sheeted. On 19-11-2009 the exhibits were sent to the FSL, Rohini. He also proved the report of the crime team as Ex.PW11/C ; photographs of the spot as Ex.PW11/A-1 to Ex.PW11/A-3 and copy of the DD No. 26-A as Ex.PW11/D. During his cross examination he admitted that prosecutrix blamed accused Rajesh and Prem at the instance of one Anil and Manoj. He interrogated both Anil State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 10
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and Manoj but their statements were not recorded. The Investigation Officer did not initiate the proceedings against the prosecutrix for giving false statement. The Investigating Officer admitted that the statement of the prosecutrix was inconsistent. Prosecutrix did not submit any receipt of gas connection with him neither the IO asked for the same. PW11 did not check the register of the gas company regarding deposit of any such amount and did not seize the wearing clothes of the prosecutrix on the night of 16/17-10-2009. PW11 did not observe any external injury on the prosecutrix or the external injuries on the three suspects. No bottle was seized from the spot nor any blood was found on the bench at the spot. There were two other godowns beside the gas godown in question. PW11 made enquiries as to if any person there had seen such incident or had heard the cries of the prosecutrix.
6. After the prosecution evidence, the statement of accused was recorded wherein he denied the incriminating evidence and told that the prosecutrix had implicated him at that instance of Manoj and Anil who were working as Supervisor and against whom he had made complaint to State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 11
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Rajesh, as Manoj used to do black marketing of cylinders.
Manoj was warned by the owners of the Gas agency and for that reason he had threatened him and other suspects to implicate them.
Similar statement was made by DW1 Rajesh, Manager, Indian Gas Agency at S & P Enterprises, Shop NO.
8, Aravali Shopping Centre, Alakhnanda, New Delhi, that all three of them were implicated at the instance of one Manoj who used to sell cylinders in black market.
7. The entire case hinges on the statements made by the prosecutrix, who was examined as PW1, so now let me examine her deposition.
PW1 in her testimony had deposed that she knew accused Rakesh through one Anil who used to work in a factory. Accused used to work in gas agency and since she require a gas connection, so in the month of 2008, prior to Diwali, Rakesh called her on phone at around 5 PM and informed her that she has been given a gas connection and she should come and collect it. She went to C-Lal Chowk within half an hour and found accused was waiting for her on a motorcycle. She asked for the gas cylinder and the accused informed her that his senior Rajesh will give the cylinder. After sometime Rajesh came in a swift car bearing no. 4040 and asked the prosecutrix to accompany him to the gas godown. She sat in the car and went to the gas godown. Accused Rakesh also reached the godown on State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 12
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his motorcycle. Rajesh offered her sweets to eat but she did not eat the same. In the meanwhile, one Prem working in the gas godown came there and brought two bottles of cold drink with two glasses. Rakesh opened the cold drink and poured the same in the glasses and offered the prosecutrix to drink it. She drank the cold drink. All three of them went inside the godown while she kept on sitting on a bench. After sometime, due to ill effects of the drink, she was unable to speak or lift her hand and felt sensation on her tongue. Thereafter, all three of them came inside the room and took her to a nearby forest. Rakesh threw her on a bench and then put off her salwar. First of all accused Rajesh, then Rakesh and lastly Prem had raped her. All three of them left her lying there. Accused Rakesh made her wear her salwar. After some time she regained her strength and came near a godown and someone called police.
On inquiry she told the police that she had not taken any drink. She was taken to AIIMS where she was given some treatment. She was brought to police station. Next day again she was taken for her medical examination. She was kept in the police station for three days. She proved her statement Ex.PW1/A she gave to police and also her statement she made to the Ld. Metropolitan Magistrate. The doctor had seized her clothes which she was wearing at the time of the incident. She identified the photo of one Rajesh in photographs Ex.PW1/C to Ex.PW1/E. She proved her statement under section 164 Cr.P.C as Ex.PW1/B but stated that such statement was not voluntary as she was beaten by police and was asked to give such statement, though, she admitted that she did not tell the Magistrate that she was pressurized to make such statement or she was under any fear of beatings by the police. She identified her salwar Ex.P1, one ladies suit Ex.P2 and her chunni Ex.P3, she was wearing at the time of the incident.
She was cross examined by the Ld. Addl. P.P for the State and deposed that she never told the police that her husband has expired. Though she was confronted with her statement Ex.PW1/A but she denied that she ever State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 13
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lived with Manoj @ Kalu as his wife or has a son from him or if on 16-10-2009 she had gone to Dasna Jail to meet him. She also denied that she ever told police that Kalu used to commit theft, sell liquor or was lodged in Dasna Jail.
She denied the version made in her statement Ex.PW1/A that Anil, a contractor, in her factory who used to bring job work for her had ever asked her to implicate Rajesh or Rakesh in rape case. She also denied that she along with her daughter Salma had gone to Adapur, Smbhal, District Muradabad where Anil had made a call to her, asking her to implicate Rakesh and Rajesh and she was made to talk to Manoj who also requested her to return from village and they would pay money to her. She was confronted with her statement Ex.PW1/D-A wherein these facts were so recorded.
She also denied that she ever told police that after 3-4 days she along with her children returned to Delhi and that after 8-10 days Anil introduced her to one Manoj or that after 2-3 days Manoj called her and asked her if she had received any money or she ever told him that she had received only Rs.800/-. She was confronted with her statement Ex.PW1/DA wherein these facts were so recorded. She also deposed that she cannot say if she had taken alcohol in the night of 16/17-10-2009 as she was not aware what was given to her in the cold drink as after drinking the said cold drink she did not remain in senses. She further deposed that she could not fight with the accused while being taken to a bench as was not in complete sense. She deposed that she had not taken any money with her when she was called by accused Rakesh at C-Lal Chowk for gas connection, as she had already given Rs.4000/- to him. She deposed that receipt of Indane gas for such money was also given by her to accused Rakesh. She also deposed that she was kept in police station for three days in a room and she made a complaint in the Vigilance Department ; to the SHO ; to the ACP and to the DCP in this regard.
She was also confronted with her statement Ex.PW1/B and she deposed that she never told to the Ld. MM that all three of them came or that Rajesh and Rakesh State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 14
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caught hold of her by hands and took her to a nearby forest or that Rajesh and Prem committed rape upon her. She deposed that she never stated to the Ld. MM in her statement Ex.PW1/B that firstly Rajesh had committed rape with her or later Prem and Rakesh raped her and all of them left her lying there. She could not tell as to why her statement was recorded after three days of the incident or that if she was under influence of liquor on the very first day. She admitted that the Ld. MM had asked her if she was willing to give her statement voluntarily and she replied in affirmative but she added that at that time the police officials were standing outside the room and had kept her son in the police station. She further admitted that when her statement was recorded by the Ld. MM no other person was present in the room.
The prosecutrix deposed that she knew Anil for last 5-6 years but denied that he ever asked her to implicate accused person in a false rape case. She denied that she ever knew any Manoj, the in-charge of the gas godown, who was dismissed by his employer. She denied that she ever told in her statement dated 18-10-2009 that Anil told her that gas cylinder will be provided by Rajesh. She deposed that she met Rakesh through Anil or that Anil ever told her that accused Rakesh would help her in getting the gas cylinder. She further denied the fact that she ever stated to police that if Rakesh had committed rape. She deposed that she was made to drink cold drink and she started feeling dizziness and then found herself in the forest. She was also confronted with her different statements, including, statement Ex.PW1/DA wherein she told that Manoj had asked her to implicate Rajesh, Prem and accused Rakesh.
8. It is settled law that the conviction in a rape case can be based solely on the statement of the prosecutrix provided the said statement is truthful, reliable State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 15
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and acceptable.
Let me first come to the conduct of the prosecutrix. The prosecutrix had made her first complaint Ex.PW1/A on dated 17-10-2009 and had levelled allegations of rape against accused Rakesh, Rajesh and Prem. She elaborated the manner in which these three person had committed rape upon her. She rather deposed that she was asked to reach C-Lal Chowk by accused Rakesh from where she was taken to gas godown by one Rajesh in his car and in the godown she was given a cold drink in a bottle by Prem and after consuming it she became drowsy and then they all took her to a nearby jungle and made her lie on a bench where accused Rakesh put off her salwar and then firstly Rajesh, then Rakesh and lastly Prem committed rape upon her. Thus she made it a case of gang rape.
However, on 18-9-2009 she made yet another statement Ex.PW1/D-A under section 161 Cr.P.C wherein she had stated that she was asked by Manoj and Anil to implicate Rajesh, Prem and Rakesh in false rape case State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 16
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and was even offered money. She stated that on the day of incident she was called by accused Rakesh, who took her to a jungle where he started pressing her breast and then forcibly pulled her down and committed rape. Then he gave her a cold drink and she felt drowsy. Accused Rakesh then left her alone in the jungle. However, she admitted in Ex.PW1/DA that she had implicated Rajesh and Prem in rape case, at the instance of one Manoj.
Further in yet another statement Ex.PW1/B, this time under section 164 Cr.P.C, she admitted that Anil Guatam, a thekedar, had instructed her to implicate accused Rakesh; one Rajesh and Prem in a false rape case but she refused. However, she stated that on 16-10-2009 accused Rakesh had called her on the pretext of giving her a gas connection and had taken her to gas godown and gave her cold drink and some sweets. She could not speak properly after taking such cold drink. Then Rakesh and thereafter 2-3 person came and though accused committed rape but she do not know if the other two person had committed rape upon her.
State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 17
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Lastly, before this court, she as PW1, made deposition stating, interalia, that she was taken to the gas godown by accused Rakesh from C-Lal Chowk, where Rajesh offered her sweets to eat but she did not eat. Then one Prem came there and brought two bottles of cold drinks along with two glasses and gave her a cold drink, and after drinking the same she felt drowsy and was unable to speak or lift her hand. Then Rajesh and accused Rakesh caught hold of her by her hands and took her to a forest.
Her salwar were taken off and firstly Rajesh, then accused Rakesh and lastly Prem committed rape upon her.
Viewing all her three statement Ex.PW1/A, Ex.PW1/B and Ex.PW1/DA and lastly her deposition as PW1, I find tremendous contradictions qua (a) the number of person who committed rape and (b) the manner in which the offence was committed.
Though in her statements Ex.PW1/A, Ex.PW1/B and in her deposition as PW1 she had stated that she was taken by Rajesh in the gas godown and from there was taken to a nearby jungle but in her statement State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 18
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Ex.PW1/DA she had stated that accused Rakesh never took her to gas godown but straightway had brought her to a jungle where only accused Rakesh committed rape upon her.
Further, there exist a contradiction qua the sequence of her taking drinks as in her statements Ex.
PW1/A, 1/B and as PW 1 she says that firstly she was served with drinks and then was lifted to a jungle where she was raped but in her statement Ex. PW1/DA, she had stated that she was taken to a jungle straightway by accused Rakesh, who alone raped her and after rape he made her drink liquor.
Now though she had named accused Rakesh, Rajesh and Prem in her statement Ex.PW1/A but on the very next day the prosecutrix gave yet another statement Ex.PW1/DA wherien she admitted that she had named Rajesh and Prem at the instance of one Manoj, who had paid her money to implicate them. Further, in her statement Ex.PW1/B, recorded under section 164 Cr.P.C, prosecutrix yet again admitted that Anil Gautam had asked State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 19
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her to implicate all three namely Rajesh, Prem and accused Rakesh too.
The prosecutrix had categorically stated in her statements Ex.PW1/B and Ex.PW1/DA (confronted with) that Rajesh and Prem did not commit rape upon her. She further admitted that she was not under any pressure while making her statement Ex.PW1/B or ever told the Ld. MM that her son was ever in the custody of police or she ever was threatened by the police to make a false statement, which she later had alleged in her deposition.
Even otherwise, it appears to be highly unbelievable that police would keep his son as a bait to force her to change her statements every now and then. Further though she had exonerated Rajesh and Prem in her statements Ex.PW1/DA and Ex.PW1/B, yet she tried to implicate both of them in her deposition as PW1 before this court.
Now PW11, the Investigation Officer has admitted that he has verified the call details of Prem and Rajesh and both were not found within the vicinity of the spot. Further, as per PW5 Manish, the said Rajesh rather State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 20
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insisted him to call police. Now, if Rajesh had committed rape then why would he had asked PW5 to call police when prosecutrix first met PW5.
Thus, in the light of above contradictions, I need to carefully examine (a) the credibility of PW1; and (b) the evidence against accused Rakesh; before giving my conclusion.
Needless to say that though the prosecutrix in her statement has alleged rape committed by accused Rakesh but contradicted qua the roles of Rajesh and Prem and thus both Rajesh and Prem got the benefit of doubt at the early stages of trial and were discharged. However, the question still remain that where because of such contradictions once the court has expressed its doubt qua the involvement of number of persons and have given benefit to few of them, then would it be proper to believe the prosecutrix to implicate the remaining. I am in a little doubt.
I seek guidance from Ashok Narang Vs. State, 2012 (1) JCC, 482, wherein it is held:-
State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 21
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If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes two inconsistent statements in their evidence either at one stage or both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved.
As already noted above, learned Trial Judge has ignored the statements recorded by the first Investigating officer. The law has been settled by the Crl. Appeal No.932/2009 Page 68 of 70 by Apex Court in Ram Singh (supra) 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.
In the instant case, the conviction has been based on the sole testimony of prosecutrix. As has been held by Apex Court in Bhimapa Chandrappa Hosamani (supra) that the Supreme Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 22
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also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.
Further in Dev Raj Juneja Vs. The State (Delhi Admn.) 1996 JCC 638, the following was observed:-
Law on the question of variance between different statements of a witness at different stages is that small variations or omissions will not justify a finding that the witness is a liar and his testimony should be discarded. However, vital omissions merit consideration and if on vital points it appears to the Court that the witness has tried to improve the case such a witness will have to be discarded.
A bare perusal of these two judgments would reveal that where there are inherent contradictions, qua material aspects, the testimony of the witness need to be State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 23
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discarded as a whole and not to be accepted qua one person while giving benefit to the others. Here the prosecutrix in her statement Ex. PW 1/B had rather alleged false implication of Rajesh, Rakesh and Prem but in her statement Ex. PW 1/DA she admitted of receiving of some money from a thekedar to implicate the accused person. Hence, in such circumstances, would it be proper to rely solely upon the testimony of the prosecutrix to deny the benefit of doubt to the accused, especially when the prosecutrix has also changed the manner in which rape was committed; as somewhere she says three person committed rape and somewhere she alleged rape by only accused Rakesh; further somewhere she alleged she took drinks prior to rape and whereas in her statement Ex.
PW1/DA she alleges that she was given drinks after the rape. Thus there exist material contradictions qua (a) the number of person committed rape upon her and (b) the manner it was committed. These material contradictions rather warn me to be cautious in relying upon her testimony to convict the accused.
State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 24
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Now let me see if there is any other evidence against accused Rakesh. The DNA report Ex. PW14/B shows the presence of the semen of the accused in the vaginal swab of the prosecutrix. Here, the Ld. counsel for the accused argued that it was a consensual sex between the prosecutrix and accused Rakesh and as is evident from the facts, the prosecutrix after the intercourse, implicated all the three at the instance of Anil and Manoj. The Ld. Addl. PP for State here argued that during trial, the consensual sex, was never a plea of the accused Rakesh and now he cannot be allowed to take this defence especially after the DNA report stood positive against him.
Thus, the question arose that once I disbelieve the testimony of the prosecutrix being truthful, then would it be proper to convict the accused only on the basis of a DNA report or would it be proper for me to discard the plea of consensual sex, raised during the course of arguments.
I get my answer in Pratap Misra And Ors. vs State Of Orissa, AIR 1977 SCC 1307, wherein in similar circumstances, the Hon'ble Supreme Court after examining State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 25
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the medical and other evidence held as under:-
After going through the entire evidence carefully we are clearly of the opinion that the evidence in this case shows that the appellants had no doubt committed sexual intercourse with the prosecutrix but such an intercourse was done with the tacit consent of the prosecutrix and the connivance of her husband. There is no material at all to prove the allegation of rape, the medical evidence does not support it, the circumstances proved in the case mitigate against the case of such a theory and the conduct of P. Ws. 1 and 2 itself is inconsistent with the allegation of rape. Both the Courts below, while appreciating the evidence have completely overlooked the telling circumstances and the glaring errors found in the prosecution case which have necessitated its rejection in toto. The Courts below appear to have presumed that the allegation of rape was true without there being sufficient evidence and without even examining the possibility of consent which was not only present in this case but almost proved and probabilised by the circumstances discussed by us and which appear from the prosecution evidence itself. We are, therefore, satisfied that the Courts below have made an absolutely wrong approach to this case, have failed to consider the striking circumstances which demolish the prosecution case and have committed gross error of procedure in not examining the possibility of consent merely on the ground that the same State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 26
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was not pleaded by the accused. Such an approch, therefore, clearly vitiates the judgments of the Courts below.
The Ld. defence counsel further substantiated this argument by adding that though the doctor PW3 alleges to hand over the case property viz lower garments of the prosecutrix and two vaginal swabs of the prosecutrix to PW 8 Ct. Radha but FSL report Ex. PW14/B shows one of the parcel containing three slides and hence he argued qua possibility of tampering with the evidence.
But devoid of this argument, even if I consider the DNA report being positive, it only reveals the sexual intercourse between the prosecutrix and the accused.
However, considering the inherent contradictions in her deposition coupled with the fact that no injury on her person is revealed in her MLC Ex. PW3/A and also that no blood or bottle of liquor was ever seized from the place of incident and that no one in the vicinity of the godown ever heard of any cries/shrieks and also in view of her statements that she was asked to implicate few of the person for money coupled with testimony of DW1 that State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 27
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accused Rakesh along with Rajesh and Prem had enmity with Manoj and hence were falsely implicated due to this enmity, there is no reason for me to discard the submission of accused that prosecutrix had a consensual sex with him & then had implicated three of them, which plea I may consider per Pratap Mishra's case (supra).
Thus accused Rakesh do deserve the benefit of doubt and hence stands acquitted of charge of Section 376 IPC. His bail bond stands cancelled, surety is discharged.
Accused to comply with the provision of section 437-A Cr.P.C.
File be consigned to record room.
Announced in the open court today i.e. 30.09.2014 (Yogesh Khanna) ASJ-Spl. FTC / Saket Courts New Delhi State vs. Rakesh SC No. : 123/2013 FIR No. : 431/2009 PS : Okhla Industrial Area, New Delhi. Page No. 28