Delhi District Court
State vs . Rajeev Arora S/O Lt. Ramesh Chand, R/O ... on 16 December, 2009
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-VII/NE-CUM-
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 67/09
State Vs. Rajeev Arora S/o Lt. Ramesh Chand, R/o B-86, Gali No.2,
North Chhajjupur, Delhi.
FIR No. 109/08
PS Bhajanpura
U/s 328/506/376 IPC.
J U D G E M E N T :-
Kashish Tiwari (name changed) was working as Technician in Kalawati Diagnostic Centre, Sherpur Chowk, Delhi. In March, 2007 Rajeev Arora came at the aforesaid Centre to get himself diagnosed. He told to Kashish that he was doing business of providing personal loans. He became frequent visitor of the aforesaid Centre. When Kashish Tiwari asked for requirements of documents for loan of Rs.50,000/-, he told her that he would explain her at his office. On 12.04.07, she reached at residence of Rajeev Arora, located at Gali No.2, 86B, B-Block, Nothern Chhajurpura, Shahdara, Delhi. Rajeev Arora offered her cold drink. On consumption of the same, she became unconscious. When she regained her consciousness, he found herself in unkempt condition. She asked Rajeev Arora as to what he had done with her. He told her to do whatever is asked for, otherwise she would have to face dire consequences. Rajeev Arora raped her against her will for about four months. On 21.08.09, he left his house at Chhajupura and started residing on rent at H.No. E-55, Gali No.9, Subhash Vihar, Bhajanpura, Delhi. Then he called her at her new residence and raped her there too. One Bharat, friend of Rajeev Arora, was also there, who took her nude photographs. Rajeev Arora told her that she would have to come whenever he need her, otherwise he would reveal her nude photographs to her family members. He continued made her victim of 2 his lust till 05.09.07. Ultimately, she narrated entire incident to her parents and lodged a report with police on 24.09.07. Her statement was recorded by police, which became bedrock of the case. During the course of investigation, prosecutrix Kashish was got medically examined. ASI Anuradha arrested accused Rajeev Arora on 18.04.08. Since accused Bharat could not be traced, he was placed in column No.2 of the charge- sheet. Investigation culminated into a charge-sheet against accused Rajeev Arora.
2. Charge for offences punishable under sections 328, 376 and 506 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Smt. Rajmani Tiwari (PW1), Kashish Tiwari (PW2), Dr. Anshul Grover (PW3), Dr. Parmeshwar Ram (PW4), Shri Ram ASI (PW5), Anoop (PW6), Kusum Tiwari (PW7), Ravinder Kumar, Constable (PW8), Baldev Raj ASI (PW9) and Anuradha ASI (PW10) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He had denied all allegations levelled against him. His case has been of denial simplicitor. He claims himself to be innocent and falsely implicated in the instant case. However, he opted not to lead any evidence in his defence.
5. Rajmani Tiwari (PW1) is the father of prosecutrix Kashish. He deposed that about one and half years ago, his daughter told him that accused Rajeev Arora and Bharat made her to drink some intoxicant substance in cold drink and thereupon raped her. Her obscene photographs were taken and accused persons started blackmailing her.
3 They used to call her repeatedly. She had also narrated those facts to his wife. He along with his daughter had gone to PS Bhajanpura and lodged the complaint against both accused persons. He had also made complaint before ACP as well as DCP concerned, but no action was taken. Hence, his daughter made complaint before the Court. As per direction of the Court, FIR was lodged by police officials and statement of his daughter was recorded. His daughter was got medically examined. Kashish Tiwari (PW2) unfolded facts of the case.
6. Dr. Anshul Grover (PW3) was posted at GTB Hospital on 19.03.08 and was working as Sr. Resident, Deptt of Gynaecology. On that day at about 11.45pm, one Kashish Tiwari, 21 years, female, was brought by her father and a lady Constable Deepa with the alleged history as told by Kashish herself as being drugged by some pills in cold drink by Rajeev Arora, on 12.04.07, followed by being raped by Rajeev Arora, whom she approached for personal loan. Thereafter, she was blackmailed by Rajeev Arora on the pretext of possessing some nude photographs of her and repeatedly had forceful sexual intercourse and that the patient Kashish Tiwari met Rajeev Arora last on 05.09.07. The patient further told about the incident to her family members, who lodged a complaint to the police. She examined the patient. Clothes of patient were not taken, since she had a bath after sexual intercourse and had changed her clothes. On examination, abdomen was soft. There was old tear in the hymen at 6 o'clock and 8 o'clock position. White curdy discharge was seen at the introitus. On per speculun examination, white curdy discharge was present. On per vaginal examination, OS was closed, uterus anteverted normal size and bilateral fornices were free. The appropriate MLC in this regard, which was exhibited as Ex.PW2/A1 bear her 4 signatures.
7. Dr. Parmeshwar Ram (PW4) medically examined accused Rajeev Arora and proved his MLC as Ex.PW4/A. Shri Ram ASI (PW5) was working as duty officer at PS Bhajanpura on 19.03.08. He recorded formal FIR and proved copy of it as Ex.PW5/B. Anoop (PW6) did not depose anything incriminating against the accused. As such he was cross-examined by the ld. Prosecutor, but to no avail. Kusum Tiwari (PW7) is the mother of prosecutrix Kashish Tiwari. She unfolded those very facts, which were narrated by her daughter Kashish before her. Constable Ravinder Kumar (PW8) got the accused Rajeev Arora medically examined. He produced three sealed pullandas and one sample seal of GTB Hospital before the IO, who took the same into possession vide memo Ex.PW8/A. Baldev Raj (PW9) got the case registered and recorded statement of witnesses, namely, Rajmani Tiwari and lady Constable Deepa. On 18.04.08, he joined investigation with IO Anuradha ASI. Thereafter, accused was arrested from his residence, whose disclosure statement Ex.PW9/B was recorded. Anuradha ASI conducted investigation of the case. She detailed those very investigative steps, which were taken by him during the course of investigation. She concluded investigation and got the accused challaned.
8. Arguments were heard at the bar. Sh. Subhash Chauhan, ld.
Prosecutor, presented facts on behalf of the State. Sh. Rajeev Kumar, Advocate, had advanced arguments on behalf of the defence. It is submitted by the ld. Counsel for the accused that prosecutrix has given different versions at different times and as such her testimony suffers from inconsistencies and is not reliable. The medical evidence does not corroborate her testimony regarding commission of rape upon her. There 5 is unexplained delay in lodging the FIR. Under these circumstances, case is highly suspicious and conviction cannot be based without corroboration, which is lacking in the instant case. As such it was submitted that accused is entitled to be acquitted. He has also placed reliance in Gopal & Ors Vs. State of Rajasthan, 2007 (3) Criminal Court Cases 295 (Rajasthan); Hem Raj & Anr. Vs. State of Punjab, 2004 92) Criminal Court Cases 157 (P&H); Daljit Singh Ghai & Anr. Vs. State, 2004 (2) Criminal Court Cases 158 (Karnatka); Om Prakash Vs. State of H.P., 2000 Cr.L.J. 1591; Niranjan Patra vs. CJM Cuttack, 2000 Cr.L.J. 1600; Kuldeep Mahato vs. State of Bihar, 1998 (2) Apex Court Journal 629 (S.C.); Brijlala Pd. Sinha etc. Vs. State of Bihar, 1998 (2) Apex Court Journal 631 (SC); Bibhishan Vs. State of Maharashtra, 2008 (1) Criminal Court Cases 348 (S.C.); Rameshwar Dass Vs. State of Punjab & Anr., 2008 (1) Criminal Court Cases 349 (S.C.); Ram Rai Vs. State of Rajasthan, 2002 (2) Criminal Court Cases 238 (Rajasthan); Chhajoo Vs. State, 2002 (2) Criminal Court Cases 240 (Allahabad); Anmol Vs. State of Maharashtra, 2000 (1) RCR (Criminal) 177; Santosh vs. State of Haryana, 2000 (1) RCR (Criminal) 179; Dev Raj Vs. State of Haryana, 2006 (2) Criminal Court Cases 90 (P&H); State of U.P. Vs. Brij Bihari & Anr., 2006 (2) Criminal Court Cases 95 (Allahabad) (DB); Anath Bandhu Kundu vs. The State of West Bengal and others, 1996 Cr.L.J. 3449; Biren Mandal v. State, 1996 Cr.L.J. 3455; Vinal Suresh Kamble vs. Chaluverapinake Apal S.P. & Anr., 2003 (2) Apex Court Judgements 28 (S.C.); State of Karnatka vs. M.V. Mahesh, 2003 (2) Apex Court Judgements 33 (SC); Mohinder Singh Vs. State of Haryana, 2005 (1) RCR (Criminal) 317;
6 Gurdev Singh @ Pappu Vs. State of Punjab, 2000 (2) Apex Court Journal 568 and Hamida vs. Rashid @ Rasheed & Ors, 2007 (3) Criminal Court Cases 483 (SC).
9. On the other hand, it was submitted by ld. Prosecutor that in a case under section 376 IPC testimony of prosecutrix herself is sufficient to convict the accused and no corroboration is required. As regards the medical evidence is concerned, it was submitted that since she was examined after substantial lapse of time, therefore no injury could be found on her person, but that itself does not make her testimony doubtful. Therefore, accused is liable to be convicted of the offence for which he is charged.
10. I have given my considerable thoughts to contentions advanced by ld. Counsel for the parties and have carefully perused the record.
11. As regards the legal proposition that conviction can be based on sole testimony of prosecutrix Kashish, and the same does not require corroboration, same is not disputed. There are catena of decisions to this effect viz. Rafiq 1980 (4) SCC 262, Bharwada Bhoginbai Hirjibai, 1983 (3) SCC 217, Chander Prakash Kewal Chand Jain, 1990 (1) SCC 350, Raghbir Singh, 1993 (2) SCC 622, Gurmeet Singh, 1996 (2) SCC 384 and Padam Lal Pradhan, 2000 (10) SCC 112. The only condition is that testimony of prosecutrix should inspire confidence. This being the legal position, let us turn to the case in hand. In the instant case, there are five statements/complaints of the prosecutrix. The first complaint was made by her to SHO, PS Bhajanpura, which is dated 24.09.07 and is exhibited as Ex.PW1/DB. In this complaint, it was stated by the prosecutrix that she was working as technician in Kalawati Lab Centre, Bhajanpura, 7 Delhi. On 12.04.07, accused came in her contact regarding loan and he started making friendship with her. On 02.05.07, accused took her to his office-cum-residence for loan. He gave her some cold drink. On consuming cold drink, she started feeling giddiness and became unconscious. When she gained consciousness, she found her condition in worst position. She inquired from him as to what he had done, on which he replied that whatever has been done is correct and she should not tell anybody, otherwise she will have to face consequences. Thereafter, he continued black-mailing her. On 27.08.07 at about 6.30pm, he called her at his office, where also he had committed rape on her. His friend Bharat concealed himself and took her nude photographs. Both of them told her that they have made her blue film, therefore whenever he will call her she will have to come otherwise her nude photographs would be sent to her house. In this manner, Rajeev Arora made her victim of his lust. On 23.09.07, he contacted her and told her to reach at Bhajanpura bus stand at 6pm and also threatened her of dire consequences, in case she did not come. Ultimately, she informed her parents, contacted her relatives and thereafter complaint was made.
12. Thereafter, it is the case of the complainant that when no action was taken by police, she filed a complaint case under section 376/341/506/34 IPC before the ACMM concerned. This complaint is exhibited as Ex.PW2/D. In this complaint, version of complainant is that she was working as technician at Kalawati Lab Centre, Bhajanpura, Delhi, for last several months. Accused Rajeev Arora made a telephone call on 12.04.07 in respect of loan to the complaint and after that he made telephone call regularly to make friendship with her. On 22.05.07, he took her to his house in respect of loan, where he was running his office. He 8 gave her cold drink and after taking said cold drink she became unconscious due to intoxication, which was mixed by the accused intentionally to achieve ulterior motive. Thereafter, he raped her. When she regained her consciousness, accused threatened her not to disclose the incident to anyone, otherwise she will have to face dire consequences. Due to the threat and fear of the accused, she did not disclose the incident to anybody. On 21.08.07, accused again called her in his office at about 6.30pm and forcibly raped her and accused No.2, that is Bharat, took her nude photographs, when rape was being committed by accused Rajeev Arora. After that both accused threatened her that now she is in their grip and they can do whatever they like and she has to follow them otherwise they would send her nude photographs to her parents. The complainant was raped by accused No.1 several times by black mailing her. On 23.09.07, accused again made telephonic call to her for sexual enjoyment and asked her to reach Bhajanpura, Delhi, at 6pm. Due to threat, she left her job and narrated the incident to her parents.
13. When this complaint was filed, status report was called and SHO was directed to investigate the matter. ASI Baldev Raj recorded her statement Ex.PW2/E on 07.11.07, wherein she stated that she was working as technician in Kalawati Lab Centre in the last week of March, 2007. Rajeev Arora came to her and told her that he is doing the work of finance and in case she requires loans, then she may inform him. She told Rajeev Arora that she required loan of Rs.50,000/- and inquired from him as to what documents are required for taking loan. Rajeev asked her to come to his residence-cum-office, situated at B-86, Gali No.2, North Chhajupura, Shahdara, Delhi, and he will inform her regarding the 9 documents. On 12.04.07, she sent to Bhajanpura bus stand, near Kabir Nagar, and made call on the mobile phone of Rajeev Arora from PCO and called him. Rajeev Arora came on motorcycle to the bus stand and she went along with him to his house. Rajeev Aora took her to the first floor on his house, where he gave her cold drink. After drinking the same, she became unconscious. When she gained consciousness, then she found herself nude. Rajeev Arora was sitting at the door. She inquired from him as to what he has done, then he told her that whatever has been done is right and she should not inform anybody about the same. Otherwise, she will be humiliated. Rajeev Arora used to call her at her mobile phone and used to tell her that she alone should attend her call, otherwise he will disclose entire facts to the receiver of the telephone. He had already taken her nude photographs and would inform them about the same. During the period from 12.04.07 to 27.06.07, he kept on raping her, without her consent. Thereafter, Rajeev Arora took her to his house-cum-office, located at B-Block, Gali No.9, Subhash Nagar, Bhajanpura, Delhi, where she used to go to meet Rajeev Arora. However, at Subhash Nagar he committed no wrong with her. It was only at the house No. B-86, Gali No.2, Chhajurpura, Shahdara, Delhi, that accused had physical relations with her without her consent.
14. During the course of investigation of this complaint, when complainant was being contacted by IO, she gave her statement by way of complaint dated 09.03.08, which is Ex.PW2/F, addressed to SHO PS Bhajanpura, Delhi. In this complaint, she had mentioned that she was working as technician at Kalawati Diagnostic Centre, Sherpur Chowk, in March. Accused had come to her lab for the purpose of testing, where he informed her about loan and in case anybody is in need of loan, then he 10 may be contacted as he deals in personal loan business. Thereafter, he started coming to her lab frequently and assured her to take loan. He asked her to come to his office. When she inquired from him as to what documents are required for the purpose of loan. On that he told her that he will inform her about the same, when she would come to his house. She told him that after consulting her family members, she will inform him about the loan. On 12.04.07, she went to his office in connection with loan, where she was given cold drinks. After taking the same, she became unconscious and when she gained consciousness she found herself in bad condition. When she inquired from the accused as to what he has done, then he told her that whatever has been done is right and she should not inform anybody about the same, otherwise she will face dire consequences. On 21.08.07, he called her at E-55, Gali No.9, Subhash Nagar, Bhajanpura, Delhi, where he committed rape on her. His friend Bharat had concealed himself and he took her nude photographs. He told her that whenever he will call her, she will have to come otherwise her nude photographs will be sent to her house. In this manner, he kept on committing rape on her. Finding no way, in September she informed her mother and thereafter her father made complaint in PS Bhajanpura, Delhi. However, no action was taken.
15. When prosecutrix appeared in the witness box, she testified that in March, 2007 she was taking training for medical laboratory tehchnology at Kalawati Diagnostic Centre at Sherpur Chowk, Bhajanpura, Delhi. Accused had come at the centre for getting blood test of his sister-in-law. At the time of giving blood sample, he told her that he used to deal in personal loan and in case she required any personal loan, she can contact him. She was in need of personal loan of Rs.50,000/-
11 approximately, hence she contacted him and inquired about document for personal loan. He gave her his office address and called her there and stated that he will give relevant information to her there. On 12.04.07, she reached at his office-cum-residence at B-86, Gali No.2, Chhajupura, Shahdara, Delhi, where he was running his office on first floor. On the ground floor, his family was residing. Accused gave her cold drink to drink the same. After taking cold drink, within 20 minutes she felt giddiness. She became unconscious. After about two and half hours, she regained her consciousness and found herself nude. She saw that Rajeev Arora was sitting in the same office and she told him what he did. He told her not to disclose to anybody about the incident otherwise she will face dire consequences. She started weeping. Thereafter, he directed her to keep quiet and stated that "Y ahan drama karne ka koi fayda nahi hai." He dropped her outside. She went to her house. He repeatedly called her on telephone at his residence. There threatened him that if she will not come then he will disclose to her family about the incident. Accused continuously committed rape on her for about four months. On 21.08.07, accused had changed his residence at E-Block, Glai No.9, Bhajanpura, Delhi. He was on rent accommodation there. He called her there. She went there under the fear. At that time friend of accused Rajeev Arora, namely, Bharat was hiding himself behind the drawer. Accused Rajeev Arora committed rape on her, while Bharat took her nude photographs from mobile phone and later on Rajeev Arora shown the same to her and stated that whatever he want, she has to do that and she would have to come wherever he called, otherwise he will show her nude photographs to her family members. At last (Tang Aa Kar), on 05.09.07, she had disclosed all the incident to her mother, who 12 informed her husband. She along with her father had gone to PS Bhajanpura, Delhi, and made her complaint Ex.PW2/A. Initially police officials did not lodge FIR on her complaint, as such she made complaint before the Magistrate. On the directions of ld. Magistrate FIR was registered.
16. Perusal of the aforesaid complaints/statements made by the prosecutrix goes to show that five versions are available. Initially, complaint dated 24.09.07, which was made to SHO PS Bhajanpura is exhibited as Ex.PW1/DB. Thereafter, she made complaint before the Magistrate on 17.10.07, which is Ex.PW2/D. As per directions of the Magistrate, investigating officer was directed to submit the report. Statement was recorded on 07.11.07, which is Ex.PW2/E and on the basis of this statement FIR was registered. Complainant herself gave her statement-cum-complaint dated 09.03.08 to SHO PS Bhajanpura, Delhi, which is Ex.PW2/F. When challan was filed, complaint filed before ld. MM was also received by this Court and the complainant appeared in the witness box and was examined on 25.08.09. On perusal of all five statements, made by the prosecutrix, goes to show that she has been giving different versions at different times. Neither exact date of occurrence nor place of occurrence is forthcoming. From various complaints and statement of prosecutrix, it has revealed that she has narrated the incident on 12.04.07, 22.05.07, 21.08.07 and 23.09.09.
17. I shall take up her version as given in different complaints and statement date wise.
18. First date is mentioned as 12.04.07.
19. Complaint Ex.PW1/DB addressed to SHO PS Bhajanpura, dated 24.09.09 is a complaint against Rajeev Arora and address mentioned E-
13 Block, Gali No.9, Subhash Nagar, Bhajanpura, Delhi. In this complaint, it is alleged that accused came in her contact on 12.04.07 regarding loan and he started making friendship with her. In the complaint Ex.PW2/D dated 17.10.07 also the incident of 12.04.07 is confined to making call regarding obtaining of loan. However, in her complaints Ex.PW2/E dated 07.11.07, Ex.PW2/F dated 09.03.08 and in her statement before the Court, it was alleged that on 12.04.07 accused had called her to his office where she was given cold drink to drink. After drinking the same, she became unconscious and when she regained consciousness, she found herself in unkempt condition. Here also place of incident is not clear, inasmuch as in Ex.PW2/F no specific address has been mentioned, where she was called by the accused. However, heading of the complaint goes to show that address of accused is that of Subhash Vihar, Bhajanpura, Delhi, whereas when prosecutrix appeared in the Court she deposed that accused had called her to his office-cum-residence at 86-B, Gali No.2, Chhajupura, Shahdara, Delhi, where offence of rape was alleged to have been committed.
20. Another date mentioned by the prosecutrix is 22.05.07. In her complaint Ex.PW1/DB dated 24.09.07 and Ex.PW2/D dated 17.10.07, it was mentioned that accused had called her to his office and after giving her cold drink, she became unconscious and then rape was committed on her. However, in subsequent complaint or her deposition before the Court, there is no mention about any incident on this date.
21. Similarly, third crucial date mentioned by the prosecutrix is 21.08.07. In Complaint Ex.PW2/DA dated 17.10.07 and Ex.PW1/DB dated 24.09.07, she had stated that she was called by the accused, who committed rape on her, while his friend Bharat took her nude 14 photographs. However, complaint Ex.PW2/E dated 07.11.07 is absolutely silent regarding any incident of this type on this day. In complaint Ex.PW2/F, dated 09.03.08 and in her deposition before the Court, it is alleged that this incident had taken place at Subhash Vihar. Whereas, in her complaint Ex.PW2/E dated 07.11.07, she has stated that when accused shifted to Subhash Vihar in a rented accommodation, she kept visiting him, but he did not do any wrong act at Subhash Vihar.
22. Fourth date is 23.09.07. In complaint Ex.PW2/D dated 17.10.07 and Ex.PW1/DB dated 24.09.07, she stated that she was again called by accused at Bhajanpura bus stand and threatened her. Then she informed her parents. However there is no mention of this date in her complaint Ex.PW2/E dated 07.11.07 or complaint dated 09.03.2008 Ex.PW2/F.
23. Rather in the Court, she has deposed that she informed her family members on 05.03.09. Further more, for the first time in her deposition before the Court, she has taken the plea that accused had come to the lab for the first time for getting some blood test done of his Bhabhi and at that time, he told her that he deals in personal loan. In case, she wants any loan, she can contact him. Howeve, no such plea was taken in the initial complaints dated 24.09.07, 17.10.07, 07.11.07 or 09.03.08. In some of the complaints, it has come that accused came in her contact for the first time on 12.04.07 only, whereas at other place she has alleged that accused came in her contact in the month of March, 2007, when he informed her that he deals in personal loan. Further more, according to her, she herself was in need of Rs.50,000/- and for that purpose she required a loan. However, in her complaint dated 09.03.08 to PS Bhajanpura, she had gone on stating that accused kept on visiting her lab and allured her to take personal loan.
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24. Result of the aforesaid discussion is that prosecutrix is taking different versions at different places. Neither the exact date of commission of offence nor the place of offence is specified. Under these circumstances, her testimony required corroboration.
25. PW1 Sh. Rajmani Tiwari is the father of the prosecutrix. As regards the incident is concerned, he is not the eye-witness to the incident and his deposition is based on the information given to him by the prosecutrix. As regards the plea of prosecutrix, she was in need of Rs.50,000/- as loan. This witness has gone on deposing that he never informed required any loan as his economic condition was good. His daughter never informed him that she required loan of Rs.50,000/-. Further more, as regards joining of the prosecutrix in Kalawati Diagnostic Centre, Sh. Rajmani Tiwari has deposed that he got admitted his daughter in the training centre, who was owner of the centre. However, prosecutrix has deposed that she joined this centre through reference of her friend, who was working there as receptionist.
26. PW7 Kusum Tiwari is the mother of prosecutrix. Even her testimony is only hearsay, inasmuch as same is based on the version given to her by her daughter. PW6 Anoop is the brother of prosecutrix, who did not support the case of prosecution as such he was cross-examined by the ld. Prosecutor. But nothing material could be elicited out of his mouth to favour the case of prosecution.
27. Besides the fact that testimony of prosecutrix does not find corroboration from testimony of her parents, even the medical evidence does not enhance the case of prosecution, inasmuch as prosecutrix was examined by Dr. Anshul Grover. She has deposed that on 19.03.08 at about 11.45pm, prosecurix Kashish was brought by her father and lady 16 constable for medical examination. On examination, doctor found that there was an old tear in the hymen at 6 O'clock and 8 O'clock position. In cross-examination, she deposed that it was not the case of fresh rape as such it was not possible to note any injury. No such injury, laceration or wound was noted by her. The last sexual intercourse was in September, 2007. She came for examination in March, 2008, during which period she had taken bath and changed her clothes. Therefore, her clothes were not seized nor any vaginal samples were taken. Two figures were easily inserted in her vagina. Under these circumstances, this medical evidence does not lead us anywhere. ld. Counsel for the accused has placed reliance on Kuldeep (supra). In that case no injury on the person, including private parts of the prosecutrix was found and it was not case of the prosecutrix that she was under physical restraint. It was held that the circumstances negated forcible intercourse and as such conviction was set-aside. Similarly, in Bibhishan (supra), the conviction was set-aside by giving benefit of doubt as no injury on the body of the prosecutrix was found. There was no sign of semen on the private part of the body nor clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. In State of Andhrapradesh (supra) conviction was set-aside, when version of prosecutrix was found to be different from FIR and medical evidence did not support allegations.
28. The above facts reveal that prosecutrix took different stand in her complaints and statement before the Court. Thus, her statement is not only self-contradictory so as to disbelieve, but her statement is not corroborated with any other evidence, including medical evidence. Under these circumstances, it is unsafe to base the conviction of accused on her sole testimony, which cannot be said to be trustworthy in the facts 17 and circumstances of the case.
29. Besides the fact that ocular testimony of prosecutrix herself suffers from inconsistencies and does not find support from medical evidence, there is great dealy in lodging the FIR. In AIR 1973 SC 501, it has been held that the FIR in a criminal case is extremely vital and valuable piece of evidence for the purpose of corroborating oral evidence. Its importance can hardly be overestimated from the stand point of the accused. Delay in lodging the FIR quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets benefit of advantage of spontaneity, danger creeps in of the introduction of coloured version, as a result of deliberation and consultation. As such delay in lodging FIR is not satisfactorily explained. In that case, delay of 20 hours was held to be fatal, the police station being within 2 miles from the place of alleged incident. 1995 AIR SCW 3012 was also a case under section 376 IPC, where delay of six days was held to be fatal. In the instant case, as per statement of prosecutrix dated 07.11.07 Ex.PW2/E during period from 12.04.07 to 27.06.07 accused kept on raping her, whereas in complaint Ex.PW2/D dated 17.10.07 and Ex.PW1/DB dated 24.09.07 it was alleged that accused again called her at Bhajanpura, bus stand on 23.09.07. Therefore, she made complaint on 24.09.07. However, when she appeared in witness box, she deposed that at last (Tang Aa Kar) on 05.09.07, she had disclosed entire incident to her mother, who informed her father and then the complaint was made. If her testimony is to be believed, then atleast she had informed her parents on 05.09.07 regarding the incident. However, no explanation is forthcoming as to why before 24.09.07, no complaint was made to the police. Under these circumstances, there is great delay in lodging FIR for which no 18 satisfactory explanation has come. As such, delay in lodging the FIR is another factor, which is fatal to the case of prosecution.
30. The onus to prove that accused committed sexual intercourse with prosecutrix, without her consent against her will as laid down in section 375 IPC is on the prosecution.
31. From the judicial decisions rendered by hon'ble Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus :
(i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the judge.
(ii) There may be circumstances in a given case which might make it safe to dispense with such a corroboration.
(iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus:
(a) Circumstances showing on the part of the prosecutrix an animus against the accused;
(b) Where the question of want of consent is material, circumstances tending to show consent : e.g., absence of material showing an attempt at resistance; absence of any marks of struggle;
(c) Attempt at improvement or exaggeration in the version as attempted by the prosecutrix;
(d) conduct on the part of the prosecutrix, inconsistency with the 19 credibility of the version e.g., omission to make a disclosure at the earliest opportunity.
(e) Element of artificiality or unnaturalness in the story as attempted by the prosecutrix, and
(f) Absence of signs of rape in the findings of the medical examination or on the chemical analysis.
32. In the case in hand, the report of incident has been lodged after considerable delay. Although prosecutrix has stated that accused committed intercourse with her forcibly several times. However, medical evidence negates this contention. No external or internal injury was found on her vital parts. She has been taking contradictory stands at different places. Moreover, her plea that she was threatened by him not to disclose incident to anybody is belied by her own conduct, inasmuch as as per her own version, she had made complaint to the Bhabhi of the accused, but no action was taken by her. If that was so, nothing prevented her from narrating the incident to her parents earlier. Under these circumstances, the evidence of prosecutrix is not of such quality and there is no other evidence on record, which may lend some assurance, short of corroboration that she is making a truthful statement. Under these circumstances, prosecution cannot be said to have established its case beyond reasonable doubt.
33. The result of the aforesaid discussion is that accused is entitled to be given benefit of doubt. As such, he is acquitted of the charge. His bail bonds are discharged. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 16th day of December, 2009. District Judge-VII/NE-cum-ASJ, Karkardooma Courts, Delhi.