Delhi District Court
State vs Kunal Kumar -:: Page 1 Of 67 ::- on 21 February, 2015
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
State
Versus
Mr. Kunal Kumar
Son of Mr. Manoj Kumar,
R/o H. No. R-946, Raghubir Nagar,
Delhi.
First Information Report Number : 462/2014.
Police Station : Khayala
Under sections : 376/506 of the Indian Penal Code.
Date of filing of the charge sheet before : 07.07.2014
the Court of the Metropolitan Magistrate
Date of receipt of this file after committal
in this Court ASJ (SFTC)-01, West, Delhi. : 28.07.2014
Arguments concluded on : 21.02.2015.
Date of judgment : 21.02.2015.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Accused Mr.Kunal Kumar has been produced from judicial
custody.
Mr.Rajiv Sachar and Mr.Tanwar Singh, counsel for the
accused.
Prosecutrix is present with her counsel, Mr.Anil Kumar
Kamboj.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
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Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
FIR No. 462/2014, Police Station Khayala
Under sections 376/506 of the Indian Penal Code.
State versus Kunal Kumar -:: Page 1 of 67 ::-
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there.".....Kurt Cobain.
1."Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations as way back as in 1996 in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
2.Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
FIR No. 462/2014, Police Station Khayala Under sections 376/506 of the Indian Penal Code.
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one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is allegedly subjected to unwanted physical contact by a perverted male, known to her, as he had allegedly promised marriage to her, as in the present case.
PROSECUTION CASE
3.Mr. Kunal Kumar, the accused, has been charge sheeted by Police Station Punjabi Bagh, Delhi for the offence under sections 376/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that since two years ago at unknown date and time at his house no. R-946, Raghubir Nagar, Delhi within the jurisdiction of Police Station Khayala, he forcibly pushed the prosecutrix (name mentioned in the file and withheld to protect her identity) in his house and forcibly committed rape upon her without her consent; since two years, as mentioned in the charge sheet, at unknown date and time at his house i.e house no. R-946 , Raghubir Nagar, Delhi, the accused had made physical relationship with the prosecutrix on the pretext of marriage several times and finally refused to marry her on 19.06.2014; and he also threatened the prosecutrix to kill her, as mentioned in her statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
FIR No. 462/2014, Police Station Khayala Under sections 376/506 of the Indian Penal Code.
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CHARGE SHEET AND COMMITTAL
4.After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 07.07.014 and after its committal, the case was assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 28.07.2014.
CHARGE
5.After hearing arguments, vide order dated 06.08.2014, charge for offence under section 376 read with sections 417 and 420 and section 506 of the IPC was framed against the accused to which accused pleaded not guilty and claimed trial. Vide order 28.11.2014, the amended charge has been framed as the address of the place of incident i.e. the house of the accused had been wrongly mentioned in the charge dated 06.08.2014, and the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6.In order to prove its case, the prosecution has examined as many as four witnesses i.e. the prosecutrix as PW1; SI Bimla Devi, the investigation officer, as PW2; SI Anand Parkash, the first investigation officer as PW3 and Ct. Raj Singh, witness of investigation, as PW4.
7.The accused and his counsel have admitted the evidence of evidence of Dr. Ajay Sharma, Dr. Manjit Kumar and Dr. Ritu, who had medically examined the prosecutrix on 19.06.2014 vide MLC No.6274, E. No. Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
FIR No. 462/2014, Police Station Khayala Under sections 376/506 of the Indian Penal Code.
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149635; evidence of Ct. Anita, who had taken the prosecutrix to DDU Hospital for her medical examination; evidence of Dr. Pallavi and Dr. Shashank Srivastava, who had medically examined accused on 19.06.2014 vide MLC No.6236, E. No.150220; evidence of HC Praveen Kumar, duty officer who had recorded FIR, made endorsement on rukka and issued certificate under section 65 B Evidence Act; evidence of Ms. Swati Singh, learned Metropolitan Magistrate, who had recorded the statement under section 164 of the Cr.P.C of the prosecutrix; evidence of SI Ravi Dutt, who had recorded DD No. 38 A, dated 18.06.2014; and evidence of WCt. Babli, who had recorded the call in PCR Call form. The accused and his counsel admitted the evidence of all the above mentioned witnesses and the documents prepared by them and or bearing their signatures. They had submitted that the above said witnesses may not be examined and the documents prepared by them may be exhibited.
8.Statement of the counsel for the accused to the same effect was recorded on 01.09.2014 and vide order dated 01.09.2014, it was ordered that as the accused and his counsel have admitted the evidence of the above mentioned witnesses and the documents prepared / signed by them, they were not being examined. The documents were exhibited as follows:
i.MLC of the prosecutrix dated 19.06.2014 is exhibited as Ex. PX-1 with signatures of Dr. Ajay Sharma at point A, Dr. Manjit Kumar at point B and Dr. Ritu at point C. ii.MLC of the accused is Ex.PX-2 with signatures of Dr. Pallavi at point A and Dr. Shashank Srivastava at point B. iii.The Emergency registration card of the accused is Ex. PX-3 with signatures of Dr. Shashank Srivastava at point A. Sessions Case Number : 81 of 2014. Unique Case ID Number : 02401R0351732014. FIR No. 462/2014, Police Station Khayala Under sections 376/506 of the Indian Penal Code.
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iv.Evidence of HC Parveen Kumar duty officer, who recorded the FIR is Ex.PX-4, with signatures of HC Parveen Kumar at point A, endorsement on rukka is Ex. PX-5 with signatures of HC Parveen Kumar at point A, certificate under section 65 B is Ex. PX-6 with signatures of HC Parveen Kumar at point A. v.Statement of prosecutrix under section 164 of the Cr.P.C. recorded by Ms. Swati Singh, learned Metropolitan Magistrate, is exhibited as Ex.PX-7 and the signatures of the learned Metropolitan Magistrate are at points A to E. vi.Evidence of SI Ravi Dutt who had recorded DD no. 38A dated 18.06.2014 is exhibited as Ex. PX-8.
vii.PCR form is Ex. PX-9.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
9.In the statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and he has not committed any offence. His brother Mr. Vishal aged about 16-17 years was playing cricket in the park and the ball had hit the husband of the prosecutrix due to which the drugs carried by him had fallen down. The husband of the prosecutrix had demanded Rs. 2000-Rs. 2500/- which his brother did not pay and a fight had taken place. The accused had intervened and stopped the fight. Thereafter, the husband of the prosecutrix had gone away but had returned after sometime and the accused had made him go away again. He had again returned after about an hour with the prosecutrix and then she had called the police at 100 number and got the accused implicated in the present false case. The police of PCR had told him that they were taking him for a case of misbehavior (badtimiji) but later he was falsely implicated in the Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
FIR No. 462/2014, Police Station Khayala Under sections 376/506 of the Indian Penal Code.
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present case. DD no. 38 A (Ex.PX-8) dated 18.06.2014 is regarding "badtmiji'.
10.The accused has preferred to not to lead evidence in his defence.
ARGUMENTS
11.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused by his counsel. The counsel for the prosecutrix had advanced some arguments on 16.02.2015 and had submitted that he would be filing written arguments.
12.However, the prosecutrix and her counsel who had taken time to file written arguments, appeared before the Court on 21.02.2015 and submitted that they are neither filing any written arguments nor advancing verbal arguments.
13.The matter has been argued at length on behalf of the State and the Additional Public Prosecutor has requested for convicting the accused for having committed the offence under section 376 read with sections 417/420 of the IPC and 506 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are consistent, corroborative and reliable. Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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No motive can be assigned to the prosecutrix for false implication of the accused.
14.The counsel for the accused have requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The evidence of the prosecutrix is not reliable as it suffers from various contradictions. There is an unexplained delay in lodging of the FIR which indicates that the FIR has been lodged after deliberation and consultation and is motivated. Even the alleged place of occurrence is not proved. There are several contradictions in the evidence of the prosecutrix and the witnesses of investigation which also indicates that the case is false. The prosecutrix is an already married woman of 34 years and the accused is an unmarried man of 25 years and the marriage between them was never possible. The prosecutrix was with the accused with her free consent as her husband was not earning and supporting her. She wanted to extort money from him which he refused to give and then, she has lodged a false case against the accused.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
15.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
16.Under this sphere, I now proceed to test the submissions of both the sides.
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Unique Case ID Number : 02401R0351732014.
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CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
17.The prosecution story unveils with the lodging of DD no. 38 (Ex.PX8) on 19.06.2014, which was recorded by SI Ravi Dutt on the call recorded in PCR by W/Ct. Babli vide PCR form (Ex.PX-9) (their evidence is admitted vide statement dated 01.09.2014 of the defence counsel) which was marked to SI Anand Parkash (PW3) and he got the case registered through Ct. Ranbir on the complaint (Ex.PW1/A) on which he made endorsement (Ex.PW3/A) and HC Parveen Kumar, duty officer recorded the FIR (Ex.PX-4) made his endorsement on the same (Ex.PX-5) and issued certificated under section 65 B Evidence Act (Ex.PX6). The police had taken the prosecutrix (PW1) to the house of the accused from where he was arrested at the instance of the prosecutrix vide arrest memo (Ex.PW1/B) and thereafter the accused and prosecutrix were brought to the Police Station Khyala by the police. The prosecutrix (PW1) was taken by Ct. Anita (her evidence is admitted vide statement dated 01.09.2014 of the defence counsel) on the instructions of the SI Anand Parkash (PW3) to DDU hospital for her medical examination where she was medically examined by Dr. Ajay Sharma, Dr. Manjit Kumar and Dr. Ritu (their evidence is admitted vide statement dated 01.09.2014 of the defence counsel) vide MLC (Ex.PX-1) and the prosecutrix had refused her internal gynaecological examination. On next day, the prosecutrix was produced by the police in Tis Hazari Courts before the Court of Ms. Swati Singh, learned Metropolitan Magistrate (her evidence is admitted vide statement dated 01.09.2014 of the defence Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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counsel) who recorded her statement under section 164 of the Cr.P.C. (Ex.PW1/C) on the application (Ex.PW2/A1) written by SI Yad Ram on the instructions of IO/SI Bimla Devi (PW2) and copy of the statement was given on the application (Ex.PW2/A2) written by SI Yad Ram on the instructions of IO/SI Bimla Devi (PW2). The prosecutrix (PW1) had shown the place of incident i.e the second floor of R-946, Raghubir Nagar to the police and she did not know whether or not any site plan was prepared by the police. The prosecutrix (PW1) was receiving threats from your (accused) family as one Mr. Mahavir, who is the paternal uncle (chacha) of the accused, has told the prosecutrix that whatever the accused has done with the prosecutrix, he and others would do the same with the prosecutrix. On 19.06.2014, while IO/SI Bimla Devi (PW2) was posted as SI at PS Khayala and on that day SI Anand Parkash (PW3) had handed over copy of FIR No. 262/2014 , original rukka and MLC of prosecutrix (PW1) to her and the investigation was marked to her. IO/SI Bimla Devi (PW2) and Ct.Raj Singh along with the prosecutrix had gone for the search of the accused at R-946, Raghubir Nagar, Delhi which was his house and on the pointing out of prosecutrix, IO/SI Bimla Devi (PW2) apprehended the accused vide arrest memo (Ex.PW1/B) and his personal search was taken vide personal search memo (Ex.PW2/A). He had confessed his crime which was recorded vide disclosure memo (Ex.PW2/C) and he also pointed the place of incident vide pointing out memo (Ex.PW2/D). IO/SI Bimla (PW2) along with Ct. Raj Singh had taken the accused to DDU Hospital, where you were medically examined by Dr. Pallavi and Dr. Shashank Srivastava (their evidence is admitted Sessions Case Number : 81 of 2014.
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vide statement dated 01.09.2014 of the defence counsel) vide MLC (Ex.PX-2). Thereafter, the accused was brought Police Station Rajouri Garden where he was kept in the lock up for the night as Police Station Khayala does not have any lock up and next day, he was produced in the Court and remanded to judicial custody by the learned Metropolitan Magistrate. During investigation, IO/SI Bimla (PW2) recorded the statements under section 161 of the Cr.P.C and after the conclusion of investigation, the charge sheet was filed in the Court. On 01.09.2014, Mr. Rajiv Sachar, counsel for the accused, had made a statement that he had instructions to make the statement on behalf of the accused and he admits the evidence of Dr.Ajay Sharma, Dr. Manjit Kumar and Dr. Ritu who had medically examined the prosecutrix on 19.06.2014 vide MLC no. 6274 ,E,no.149635 (Ex.PX1); evidence of Ct. Anita who had taken the prosecutrix to DDU hospital for her medical examination ; evidence of Dr. Pallavi and Dr. Shashank Srivastava, who had medically examined accused on 19.06.2014 vide MLC no. 6236, E no. 150220 (Ex.PX2); emergency registration card of accused (Ex.PX-3) with signatures of Dr. Shashank Srivastava; HC Parveen Kumar, Duty officer who had recorded FIR no. 462/2014 PS Khyala (Ex.PX4), made endorsement on rukka (Ex.PX-5) and issued certificate under section 65 B Evidence Act (Ex.PX-6); evidence of Ms. Swati Singh, learned Metropolitan Magistrate (Ex.PX-7) who had recorded the statement under section 164 of the Cr.P.C. of the prosecutrix; evidence of SI Ravi Dutt, who had recorded DD no. 38 A dated 18.06.2014 (Ex.PX-8); and W/Ct. Babli who had recorded the call in PCR call form CPCR DD no. 18 JUNE Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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141050467 (Ex.PX-9). The accused had admitted the evidence of all the abovementioned witnesses as mentioned in question no. 24 and the documents prepared by them and/or bearing their signatures and requested that the abovesaid witnesses may not be examined and the documents prepared by the abovesaid witnesses may be exhibited. The evidence of the abovesaid witnesses and the documents prepared by them and/or bearing their signatures are to read against the accused at the time of final disposal of the case.
18.The allegations against the accused are that since two years ago prior to the lodging of the complaint on 19.06.2014, at unknown date and time at his house no. R-946 Raghubir Nagar, Delhi, he forcibly pushed the prosecutrix (PW1) in his house and forcibly committed rape upon her without her consent. Since two years ago prior to the lodging of the complaint on 19.06.2014, as mentioned in the chargesheet, at unknown date and time at his house i.e house no. R-946 Raghubir Nagar, the accused had physical relationship with the prosecutrix (PW1) on the pretext of marriage several times and finally refused to marry her. At unknown date, time and place, the accused threatened to kill the prosecutrix (PW1).
IMPORTANT ISSUES
19.The important issues and the points in dispute are being discussed hereinafter.
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IDENTITY OF THE ACCUSED
20.There is no dispute regarding the identity of the accused Mr.Kunal Kumar who has been identified by PW1, the prosecutrix and the police witnesses of investigation. It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR although the manner in which they knew each other is disputed. Accused is also named in the complaint (Ex.PW1/A) and the FIR (Ex.PX4).
21.Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
22.There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint/statement (Ex.PW1/A), statement under section 164 of the Cr.P.C. (Ex.PW1/C) and her MLC (Ex.PX1) the prosecutrix has given her age as 32 years and in her evidence before the Court, the prosecutrix has mentioned her age as 34 years. As per the prosecution, she was a major at the time of the alleged incident.
23.Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
24.Dr.Pallavi and Dr.Shashank Srivastava had medically examined the accused vide MLC no. 6236 E.No.150220 dated 19.06.2014 (Ex.PX2).
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Their evidence and the MLC prepared by them are admitted by the accused, as already mentioned above.
25.It is mentioned in the MLC of the accused (Ex.PX2) that "There is no evidence on medical examination to suggest that the patient can not perform sexual act".
26.Even on physical examination, the doctor has found that the private parts of the accused normal. There is nothing on the record to show that the accused is impotent or medically incapable of committing the offence of rape.
27.Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX
28.It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case as the prosecutrix does not have any injury and has refused her gynecological examination.
29.The Additional Public Prosecutor has argued that the medical and forensic evidence is only for corroboration.
30.Dr.Ajay Sharma, Dr.Manjeet Kumar and Dr.Ritu had medically Sessions Case Number : 81 of 2014.
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examined the prosecutrix vide MLC No.6274 E.No.149635 dated 19.06.2014 (Ex.PX1). Their evidence and the MLC prepared by them are admitted by the accused, as already mentioned above.
31.It can be seen from the MLC of the prosecutrix (Ex.PX1) that she does not have any external injuries. She had told the doctor that last sexual relations were on 14.06.2014. She had refused her internal gynecological examination.
32.It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC-Ex.PX1), the probability is that rape is not committed.
33.These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor. She has refused her internal gynecological examination and has not given her samples to the Sessions Case Number : 81 of 2014.
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doctor. In such a situation, if the last sexual contact was just 4-5 days back, then there could have been presence of semen in her exhibits, if she had agreed to give the same and got her internal gynecological examination conducted. The absence of injuries on her body and refused for her internal gynecological examination throw a shadow of doubt on the claim of the prosecutrix that she was raped by the accused.
34.There is nothing incriminating against the accused in the medical evidence produced by the prosecution.
DELAY IN FIR
35.The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
36.The counsel for the accused has argued that there is a delay in lodging the FIR which was lodged after due deliberation and consultation. Even during trial, she has changed six lawyers and brought a new one at the time of final arguments. The fact that she always had a lawyer indicates that she was being prompted to make false allegations.
37.The contention of the prosecution that there is no delay in lodging the FIR as the prosecutrix lodged the complaint immediately after she understood that the accused will not marry her, after assuring marriage to her and exploiting her physically.
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38.The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction.
Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
39.It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
40.In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
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41.Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
42.In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination- inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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43.Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
44.The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
45.It is claimed by the accused that as the FIR (Ex.PX4) has been lodged after a long delay on 19.06.2014 at 01:25 hours (01:25 am) while the allegations made by the prosecutrix in her complaint (Ex.PW1/A) are that the accused had raped her for the first time about two years ago (from the complaint dated 19.06.2014) and thereafter he had raped her several times Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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on a false assurance of marriage. The delay in lodging of the FIR has been not explained by the prosecution.
46.The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible.
47.As per the complaint / statement of the prosecutrix to the police, Ex.PW1/A, which is dated 19.06.2014, the offence was committed for the first time about two years ago and continuously till the making of the complaint. She had called the police at 100 number on 18.06.2014 at 9.55 pm vide DD No.38 A PS Khyala (Ex.PX8).
48.In her MLC (Ex.PX1), the prosecutrix has told the doctor in the history that she knew the accused for four years. Earlier they had physical relations forcibly but later he promised to get married to her, so she had sexual relations with her consent. Last sexual relations were on 14.06.2014.
49.In her statement under section 164 of the Cr.P.C. (Ex.PW1/C) recorded on 19.06.2014, the prosecutrix has not given any date of the alleged offence and has deposed that she knows the accused since five years. First time, he had forcibly established physical relations with her and then on an assurance of marriage, he made a fool of her (pagal bananta raha). After making her husband drink liquor, he used to make Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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relations with her. One day, when she insisted, he refused to marry her. He used to beat her in a closed room. Now he is getting married. She called the police at 100 number. He has given her number to many boys that she is a "massage wali" (masseuse). Due to the trouble from his acts (harkaton), she had called at 100 number for legal action against him. He had threatened to kill her.
50.In her examination in chief recorded on 01.09.2014, the prosecutrix has deposed that she had met accused Kunal Kumar for the first time about four years ago when she was going for her work. On the pretext of getting her PAN card prepared, he had called her to his house at R-101, Raghubir Nagar and raped her. He had threatened to kill her and her children, if she disclosed the incident to anyone. This happened four years ago. Then, threatening her with her recordings, he had raped her 2-3 times during this period of 4 years. Accused had told her that he had her obscene recordings but he did not show the same to her. Accused used to force her to come to his house at R-101, Raghubir Nagar by threatening her with the recordings where he forcibly had physical relations with her 2-3 times. When she could not tolerate any more, she called the police at 100 number about three months ago.
51.As per the complaint of the prosecutrix (Ex.PW1/A), the first incident occurred two years earlier and then continued to rape her on a false pretext of marriage and now he had refused to marry her. As per the MLC of the prosecutrix (Ex.PX1), the first incident occurred four years earlier Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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and then continued to have physical relations with her consent. He had refused to marry her some 15 days back (which would be around 04.06.2014 since the MLC is of 19.06.2014) and the last sexual relations were on 14.06.2014. In her statement her section 164 of the Cr.P.C, the prosecutrix has not given any date and had said that she knows the accused for 5 years. In her examination in chief, the prosecutrix has deposed that the first incident was 4 years ago and then, he had raped her 2-3 times during this period of 4 years.
52.It is clear that the prosecutrix preferred to remain silent and not complain to anyone, when the first incident occurred and even thereafter. The last sexual contact was on 14.06.2014 while the FIR has been lodged on 19.06.2014. The DD No.38 A (Ex.PX8) is not of rape but of misbehavior (badtamiji).
53.Here, the judgment of the hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.
54.DD No.38 A (Ex.PX8) is of misbehavior (badtamiji) and was made at 9.55 pm on 18.06.2014 while the FIR (Ex.PX4) was lodged at 1.25 am on Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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19.06.2014 after making of the complaint of rape (Ex.PW1/A). No explanation is coming forth from the prosecution regarding the delay.
55.No reasonable or logical explanation is coming from the prosecution regarding the delay in lodging of the FIR on 19.06.2014 at 01:25 hours (Ex.PX4) when the alleged incident of rape for the first time occurred about four years ago/ two years earlier (as mentioned in her examination in chief, MLC-Ex.PX1 / statement/complaint -Ex.PW1/A).
56.The prosecutrix and the prosecution have not been able to justify the delay and why the prosecutrix did not report the matter immediately or earlier. No logical explanation has been furnished by the prosecution for the delay of about four years or two years and then from 14.06.2014.
57.These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The possibility that the FIR was lodged after due deliberation and consultation cannot be ruled out. The discrepancies in the evidence and the documents regarding the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.
58.Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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satisfactorily explained by the prosecutrix and the prosecution.
PLACE OF INCIDENT
59.The prosecution has claimed that the accused is a resident of R-946, Raghubir Nagar where he has committed the offence.
60.On perusal of the file, it transpires that as per the complaint (Ex.PW1/A) the place of incident is R-946, Raghubir Nagar i.e. the house of the accused. As per the statement under section 164 Cr.P.C.
(Ex.PW1/C) the house of the accused has not been disclosed where the offence was committed. As per the arrest memo of accused (Ex.PW1/B) the accused has been arrested from R-946, Raghubir Nagar. In her examination in chief before the Court, the prosecutrix has deposed that the accused had committed the offence at his house i.e. R-101, Raghubir Nagar. In her cross examination she has deposed that the accused had keys of both houses i.e. R-101, Raghubir Nagar as well as R-946, Raghubir Nagar, where he has used to call her. She has refused to go to R-101 as there were several tenants. Accused used to take her to the second floor of R-946, Raghubir Nagar where he had physical relations with her. Accused did not have any physical relations with her in R-101. She did not tell the police that accused has having the keys of both the houses i.e H. No.R-101, Raghubir Nagar and R-946, Raghubir Nagar.
61.In her examination in chief recorded on 01.09.2014, the prosecutrix has deposed that "Accused used to force me to come to his house at R-101, Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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Raghubir Nagar by threatening me with the recordings where he forcibly had physical relations with me 2-3 times." but in her examination in chief recorded on 28.11.2014, the prosecutrix has deposed that "I had shown the place of incident i.e. the second floor of R-946, Raghubir Nagar to the police."
62.In her examination in chief recorded on 01.09.2014, the prosecutrix has deposed that the place of incident is R-101, Raghubir Nagar but in her cross examination, she has deposed that she had refused to go to R-101 as there were several tenants and the offence was committed in R-946, Raghubir Nagar.
63.The claim of the accused that he was never living at R-946, Raghubir Nagar and his address is R-101, Raghubir Nagar.
64.The fact that the accused is not a resident of R-946, Raghubir Nagar and his address is R-101, Raghubir Nagar is borne out from the electoral card and driving licence, which are exhibited as Ex.DX-1 and Ex.DX-2 respectively which show that he is resident of R-101, Raghubir Nagar. The prosecutrix had shown the place of incident to the police i.e. 2nd floor, R-946, Raghubir Nagar, regarding which the site plan (Ex.PW4/A) has been made but the prosecution has not been able to produce any document which could indicate that the accused is resident of R-946, Raghubir Nagar.
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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65.In her examination in chief at page 2, the prosecutrix, PW1, has deposed that the accused had told his address was R-101, Raghubir Nagar. She has also deposed that she had gone alone to his house where the offence was committed for the first time and thereafter, he used to call her at R-101, Raghubir Nagar by threatening her with her recordings. She had taken the police to the house of the accused from where he was arrested. The arrest memo (Ex.PW1/B) shows the place of arrest i.e. the house of the accused as R-946, Raghubir Nagar and it is signed by the prosecutrix.
66.Then, in her cross examination, the prosecutrix has deposed that "I had told the police that accused is resident of R-101, Raghubir Nagar. (Confronted with complaint Ex.PW1/A, statement u/s 161 Cr.P.C dated 19.06.2014 now marked as A, where it is not so recorded.). I had not told the police that accused used to call me to his house at R-101, Raghubir Nagar, where I used to go and he used to established physical relations with me. It is correct that I have mentioned in my complaint Ex.PW1/A and statement dt. 19.06.2014 Mark A that the accused was residing at R-946, Raghubir Nagar. I admit the statement u/s 161 Cr.P.C dt. 19.06.2014, Mark A. (As the prosecutrix admitting the statement u/s 161 Cr.P.C dt. 19.06.2014, same is exhibited as Ex.PW1/D.) My examination in chief recorded on 01.09.2014 as well as complaint Ex.PW1/A and statement Ex.PW1/D are correct as accused used to have the keys of both the houses i.e. R-101, Raghubir Nagar as well as R-946, Raghubir Nagar and he used to call me both the houses. Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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Vol. I refused to go to R-101 as there were several tenants in that house and in R-946 his mother used to reside and the accused used to take me to the second floor of R-946, where he used to have physical relations with me. Accused did not have physical relations with me in R-101. I have not told the police that accused was having keys of both the houses i.e R-101 and R-946."
67.Here, it may also be mentioned here that the charge was framed against accused on 06.08.2014 in which the address of the accused is written as R-402, Raghubir Nagar and subsequently charge was amended vide order dated 28.11.2014, and the address of accused was corrected, as per the prosecution version, as R-946, Raghubir Nagar. (The request for amendment of the charge had come from the prosecution which was not opposed by the accused and his counsel).
68.PW2, IO SI Bimla Devi, has deposed in her cross examination that "During investigation, I was not told by anyone that the address of the accused is R-101 Raghubir Nagar and not R -946 Raghubir Nagar. The prosecutrix had mentioned the address of accused as R-946 Raghubir Nagar. I did not collect any identity proof of the accused." Neither did the prosecutrix give any document to the police or produce any witness to show that the accused is a resident of R-946, Raghubir Nagar nor the IO has collected any such evidence. The documents of the accused i.e. Ex.DX-1 and DX-2 clearly show that he is a resident of R-101, Raghubir Nagar.
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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69.It was bounden duty of the prosecution to show that the address of accused is R-946, Raghubir Nagar, Delhi as the prosecutrix has alleged that the offence had been committed in the house of the accused. Except for the arrest memo in which the address of the accused has been mentioned as R-946, Raghubir Nagar, there is no document on the record which could indicate that the accused is a resident of R-946, Raghubir Nagar. In fact, Ex.DX-1 and Ex.DX-2 show that he is a resident of R-101, Raghubir Nagar. The prosecutrix has categorically deposed that she had refused to go to R-101, Raghubir Nagar and had gone to R-946, Raghubir Nagar which shows that no offence was committed at R-101, Raghubir Nagar. It is also clear from the record that the accused is a resident of R-101, Raghubir Nagar and not R-946, Raghubir Nagar. Nothing has been brought on the record by the prosecution to show that the accused was a resident of R-946, Raghubir Nagar. In the event the prosecution not proving that the accused is resident of R-946, Raghubir Nagar, it can not be said that he had raped her in his house at R-946, Raghubir Nagar.
70.It is clear from the record that the prosecution has failed to prove the house of the accused i.e. place of incident of the alleged offence.
STATEMENTS AND EVIDENCE OF THE PROSECUTRIX
71.It is necessary to discuss and analyse the statements and the testimony of the most material witness i.e. PW1, the prosecutrix.
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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72.In her examination in chief before the Court, the prosecutrix, as PW1, has deposed that that she got married with Mr. Rajesh some years ago but she did not remember the date, month and year of her marriage. She has two children from the wedlock i.e. elder son namely Master Rishbh now aged 14 years and younger son namely Master Dhruv now aged 10 years.
They are studying in class 8th and 5th respectively. She resides with her family comprising of my husband and her two sons at the given address (address mentioned but withheld to protect the identity of the prosecutrix). She is a beautician and goes for work to the houses of her clients. She had met accused Kunal Kumar for the first time about four years ago when she was going for my work. He had stopped her while she was on road and told her that he could get her work done whatever it was. Accused told her that he could get her PAN card prepared. She told him that she wanted PAN card issued to her. Accused told her that he could not get the PAN card prepared himself and he would get it made through his friend. After about 1-2 months, he had got her PAN card prepared through his friend. Accused told her that she needs to come to his house to collect the PAN card but she told him to bring it there on the road. This happened about 4 years ago. She had refused to go to the house of accused to collect the PAN card but he insisted that she can get the PAN card only if she goes to his house as his friend would be bringing her PAN card to his house. She told the accused that immediately she could not go to his house and after she finished her work, she would go to his house. Accused told his address was R-101, Raghubir Nagar. On the next day in the evening, she went to the house of accused to collect her Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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PAN card. Accused had met her on the road when he had come on his bike and told her to come to his house to collect the PAN card. She went alone to the house of the accused and asked him to give her PAN card to her. He, however, did not give the same to her. Accused caught hold of her hand, picked her up and put her on the bed. Accused made her lie on the bed and started touching her. She resisted saying that she is a married woman with two children. He forcibly removed her clothes despite her resistance. Then he removed his own clothes. Then he forcibly had physical relations with her. It was without her consent. She had tried to shout for help but the accused had closed her mouth with his hand. The accused had threatened to kill her and her children, if she disclosed about the incident to anyone. After the incident, she came out of his house and returned home. He did not give her PAN card to her. Out of fear, she did not tell anyone about the incident. Accused had raped her 2-3 times during this period of 4 years. He had threatened her with her recordings. Accused had told her that he had her obscene recordings but he did not show the same to her. Accused used to force her to come to his house at R-101, Raghubir Nagar by threatening her with the recordings where he forcibly had physical relations with her 2-3 times. When she could not tolerate any more, she called the police at 100 number about three months ago. Whatever she has deposed today, she had told the police in her complaint. Police had recorded her statement (Ex.PW1/A) which runs into two pages and it bears her signature at point A and it is in her handwriting. The police had told her to write her complaint and then she had written Ex.PW1/A. Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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73.In her complaint (Ex.PW1/A) the prosecutrix has mentioned that she was doing work of parlour in houses. She was married in the year 2000 with Mr. Rajesh and has two children from the wedlock. One man by namely Mr. Kunal, who is resident of R-946 is known to her for 4 years.
She had met her for the first time for getting a PAN card prepared two years ago when she had gone to the house of accused Kunal for purpose of getting PAN card prepared. He was alone in the house at that time and had pulled her into the house and forcibly established relations with her against her consent. Then he had promised to marry her. As she has differences with husband, she started liking accused Kunal and she had physical relations with accused Kunal with her consent. Now accused Kunal refused to marry her. He had first forcibly physical relation with her and it is on a false pretext of marriage, which he had now refused, that he had physical relations with her. On that day, she had gone to talk with him and he had fought with her and she had called the police at 100 number and had earlier told them about the fights but now in the presence of her mother Ms. Jyoti, she had given written complaint.
74.In her statement under section 164 of the Cr.P.C. (Ex.PW1/C) recorded on 19.06.2014, the prosecutrix has not given any date of the alleged offence and has deposed that she knows the accused since five years. First time, he had forcibly established physical relations with her and then on an assurance of marriage, he made a fool of her (pagal bananta raha). After making her husband drink liquor, he used to make Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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relations with her. One day, when she insisted, he refused to marry her. He used to beat her in a closed room. Now he is getting married. She called the police at 100 number. He has given her number to many boys that she is a "massage wali" (masseuse). Due to the trouble from his acts (harkaton), she had called at 100 number for legal action against him. He had threatened to kill her.
75.Here, it would also be relevant to mention about PCR form (Ex.PX9) and DD No.38 A dated 18.06.2014, PS Khayala (Ex.PX8) vide which the prosecution case was set into motion when the information was given from mobile number (number mentioned but withheld to protect the identity of the prosecutrix) that a boy named Mr. Kunal of R-946, J.J.Colony, Raghubir Nagar, a neighbor, had entered into the house of prosecutrix and was misbehaving (ghar mai padosi Kunal ghus gaya tha- pakad liya hai) and DD No.38 A was recorded that a boy named Mr. Kunal of R-946, J.J.Colony, Raghubir Nagar, had entered into the house and was misbehaving (ghar mein ghus kar badtimiji kar raha hai). This is the first information regarding the offence.
76.It is also clear from the PCR form (ExPX9), DD No.38 A (Ex.PX8) and complaint (Ex.PW1/A) that the call was made by the prosecutrix to the police at 100 number.
77.It can be seen that the prosecutrix has made several contradictions, improvements and discrepancies in her different statements. The same are Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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too major to be ignored as they do not come within the realm of explanation. They strike at the very root of the prosecution case. The same are being tabulated below as follows:
\
DD No.38 A ... Complaint... Statement under Examination in
(Ex.PX8) (Ex.PW1/A) section 164 chief
PCR Form ... Cr.P.C....
(Ex.PX9) (Ex.PW1/C)
Ex.PX9.. A On that day, she had Now he is getting When she could
neighbor, had gone to talk with him and married. She not tolerate any
entered into the he had fought with her called the police more, she called
house of and she had called the at 100 number. the police at 100
prosecutrix and police at 100 number He has given her number
was misbehaving number to many
(ghar mai padosi boys that she is a
Kunal ghus gaya "massage
tha-pakad liya wali" (masseuse)
hai) . Due to the
trouble from his
Ex.PX8.. had acts (harkaton),
entered into the she had called at
house and was 100 number
misbehaving
(ghar mein ghus
kar badtimiji kar
raha hai)
No mention she knows the accused One man by She had met
about the period since five years. namely Mr. accused Kunal
of acquaintance Kunal, who is Kumar for the
resident of R-946 first time about
is known to her four years ago
for 4 years. when she was
going for my
work.
No such mention No such mention No such mention He had stopped
her while she was
on road and told
her that he could
get her work
done whatever it
was.
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
FIR No. 462/2014, Police Station Khayala
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No such mention Met the accused for No such mention Accused told her
getting PAN card that he could get
prepared. her PAN card
prepared. She
told him that she
wanted PAN card
issued to her.
Accused told her
that he could not
get the PAN card
prepared himself
and he would get
it made through
his friend.
No such mention No such mention No such mention After about 1-2
months, he had
got her PAN card
prepared through
his friend.
Accused told her
that she needs to
come to his house
to collect the
PAN card but she
told him to bring
it there on the
road. This
happened about 4
years ago. She
had refused to go
to the house of
accused to collect
the PAN card but
he insisted that
she can get the
PAN card only if
she goes to his
house as his
friend would be
bringing her PAN
card to his house.
She told the
accused that
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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Under sections 376/506 of the Indian Penal Code. State versus Kunal Kumar -:: Page 35 of 67 ::-
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immediately she could not go to his house and after she finished her work, she would go to his house.
Accused is Mr. Kunal, who is No mention Accused told his
resident of resident of R-946, about address of address was
R-946, JJ colony, Raghubir Nagar accused R-101, Raghubir
Raghubir Nagar Nagar.
No such mention No such mention No such mention On the next day
in the evening,
she went to the
house of accused
to collect her
PAN card.
Accused had met
her on the road
when he had
come on his bike
and told her to
come to his house
to collect the
PAN card. She
went alone to the
house of the
accused and
asked him to give
her PAN card to
her.
No mention of Accused established Accused He forcibly had
rape physical relations with established physical relations
her forcibly. physical with her. It was
relations with without her
her forcibly on consent.
the pretext of
getting PAN card
prepared.
No such mention No such mention No such mention She had tried to
shout for help but
the accused had
closed her mouth
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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Under sections 376/506 of the Indian Penal Code. State versus Kunal Kumar -:: Page 36 of 67 ::-
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with his hand.
The accused had
threatened to kill
her and her
children, if she
disclosed about
the incident to
anyone.
No such mention No such mention No such mention Accused had
raped her 2-3
times during this
period of 4 years.
He had
threatened her
with her
recordings.
No such mention No such mention No such mention Accused used to
force her to come
to his house at
R-101, Raghubir
Nagar by
threatening her
with the
recordings where
he forcibly had
physical relations
with her 2-3
times.
No such mention Accused gave her a false Befooled her on No such mention
assurance of marriage a false pretext of
and had physical marriage (pagal
relations with her, with bananta raha)
her consent
No such mention No such mention Accused used to No such mention
make the
husband of the
prosecutrix drink
liquor and then
have physical
relations with
her.
No such mention Accused has refused to When she No such mention
marry her. insisted, he
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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refused to marry her.
No such mention No such mention He used to beat No such mention her in a closed room.
No such mention No such mention Now he is getting No such mention married.
No such mention No such mention He has given her No such mention number to many boys that she is a "massage wali" (masseuse) .
No such mention As she has differences No such mention No such mention with husband, she started liking accused Kunal and she had physical relations with accused Kunal with her consent.
No such mention He had first forcibly No such mention No such mention physical relation with her and it is on a false pretext of marriage, which he had now refused, that he had physical relations with her.
No mention of On that day, she had No mention No mention of fight gone to talk with him and about fight fight he had fought with her and she had called the police at 100 number No such mention No such mention He has also No such mention threatened to kill her.
No such mention No such mention. Accused is now No such mention getting married.
78.Besides the above tabulated contradictions in the different statements of the prosecutrix, there are some more unbelievable versions and Sessions Case Number : 81 of 2014.
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contradictions from her complaint, statement under section 164 of the Cr.P.C and examination in chief, coming forth in her cross examination, which also indicate that the accused has been falsely implicated in this case.
79.As per the record, the complaint (Ex.PW1/A) has been made by the prosecutrix in the presence of SI Anand Prakash (PW3). However, the prosecutrix has deposed in her cross examination that "I had myself written the complaint Ex.PW1/A. I do not remember when and where I had written the complaint Ex.PW1/A. I do not remember the date on which I had written the complaint Ex.PW1/A. I had written the complaint Ex.PW1/A in the PS Khayala on the directions of the police officers who were present in the PS. I do not know the name of the police officers. SI Anand Parkash who was present in the Court and whose evidence has been recorded prior to my evidence was not the police officer who was present in the PS and on whose direction I had written the complaint Ex.PW1/A"
80.In her examination in chief, the prosecutrix has deposed that "Accused used to promise to marry me and on this pretext he had established physical relations with me" while in her cross examination, she has deposed that "I had not told the police that accused had assured marriage to me and on his false assurance he had physical relations with me." She was confronted with the complaint (Ex.PW1/A) where it so recorded. The prosecutrix has changed the entire version by denying Sessions Case Number : 81 of 2014.
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such a material aspect. If there was no promise of marriage made by the accused to her on which she had physical relations with him, then the charge under section 376 read with sections 417 and 420 of the IPC is not proved.
81.In her examination in chief, the prosecutrix has deposed that the accused had made her obscene recordings. In her cross examination, she has deposed that "I do not remember whether or not I had told the police that the accused had told me that he had prepared my obscene recordings. I had not told the Ld. MM that the accused had told me that he had prepared my obscene recordings."
82.It would be important to mention here that no obscene recordings or material was recovered from the accused or at his pointing out.
83.In her complaint (Ex.PW1/A) the prosecutrix has stated that she was making the complaint in the presence of her mother, Ms.Jyoti but in her cross examination, she has deposed that "My mother and husband did not come to R-946 as well as the PS as they were not aware about the incident."
84.In her cross examination, the prosecutrix has deposed that "My father Mr.Mukesh Kumar had come to the PS. Accused had called several persons from his side to the PS which included his paternal aunt (Bua), his father Mr. Manoj Kumar, his mother, his paternal grand mother, his brother, paternal uncle (Chacha) and many more" but none of them Sessions Case Number : 81 of 2014.
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are witnesses in the case nor they were produced and examined by any of the sides i.e. prosecution, prosecutrix and accused.
85.The version put forth by the prosecutrix in her examination in chief that she had gone to the house of the accused to get her PAN card appears to be false as she does not even know for what purpose it is made and she is not paying any income tax, as deposed by her in her cross examination that "I wanted to get a PAN Card prepared as some one had told me but I do not remember the name of that man. I do not pay any income tax and I am not an income tax assesses. I am not aware about the use of PAN Card."
86.In her examination in chief, the prosecutrix has deposed that "Accused used to promise to marry me and on this pretext he had established physical relations with me." while in her cross examination, she has deposed that "I had not told the police that accused had assured marriage to me and on his false assurance he had physical relations with me. (Confronted with Ex.PW1/A, where it is so recorded.) I had not told the Ld. MM that accused had assured marriage to me and on his false assurance he had physical relations with me. (Confronted with Ex.PX7, where it is so recorded.) I had not told the Ld. MM that the accused is getting married and is engaged to some other girl. (Confronted with Ex.PX7, where it is so recorded.)"
87.In her examination in chief recorded on 01.09.2014, the prosecutrix has deposed that "Accused used to force me to come to his house at R-101, Sessions Case Number : 81 of 2014.
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Raghubir Nagar by threatening me with the recordings where he forcibly had physical relations with me 2-3 times." but in her examination in chief recorded on 28.11.2014, the prosecutrix has deposed that "I had shown the place of incident i.e. the second floor of R-946, Raghubir Nagar to the police."
88.In her examination in chief recorded on 01.09.2014, the prosecutrix has deposed that the place of incident is R-101, Raghubir Nagar but in her cross examination, she has deposed that she had refused to go to R-101 as there were several tenants and the offence was committed in R-946, Raghubir Nagar.
89.In her examination in chief recorded on 28.11.2014, the prosecutrix has deposed that "Accused promised to marry me and on this pretext he established physical relations with me." However, the prosecutrix has deposed in her cross examination that "I had not told the police that accused had assured marriage to me and on his false assurance he had physical relations with me." She was confronted with the complaint (Ex.PW1/A) where it is recorded that the accused had assured her of marriage and on this assurance, she had physical relations with him. She has also admitted that "I had myself written the complaint Ex.PW1/A." but still she denied about the assurance of marriage by accused and then her having physical relations with him.
90.In her examination in chief, as PW1, the prosecutrix has deposed that accused had called her to his house and then raped her. She has not given Sessions Case Number : 81 of 2014.
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the date, month and year of the rape and has made contradictions regarding when the rape was committed. (As per the complaint / statement of the prosecutrix to the police, Ex.PW1/A, which is dated 19.06.2014, the offence was committed for the first time about two years ago which makes it around June, 2012; she has not given any date or duration in her statement under section 164 Cr.P.C (Ex.PW1/C); in her examination in chief recorded on 01.09.2014, the prosecutrix has deposed that the first incident of rape happened four years ago. It is also clear from the record that the prosecutrix neither shouted for help nor tried to escape nor raised any alarm. Even after the alleged first incident, she did not raise any alarm nor confided in her family nor lodged any complaint. She has deposed in her cross examination that "I had not told the police that the accused had misbehaved with me and removed my clothes and then had physical relations with me forcibly." The Additional Public Prosecutor has submitted that the prosecutrix was threatened due to which she did not make any complaint. However, the record neither reveals the words used in the alleged threat nor the effect of the same on the prosecutrix. These facts indicate that the possibility of making of false allegations regarding the alleged first offence by the prosecutrix cannot be completely ruled out.
91.It is clear from the record that when the prosecutrix had met the accused for the first time, she was already married and had two children. In her complaint (Ex.PW1/A), she has stated that as she had differences with her husband, she started liking the accused (mere pati se meri an-ban Sessions Case Number : 81 of 2014.
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hone ke karan main bhi Kunal ko chahne lagi). Accused promised to marry her and had physical relations with her with her consent and then refused to marry her. It is also clear that the accused could not have married the prosecutrix as she was an already married woman who was not in a capacity to marry again during the subsistence of her marriage.
92.It is clear that the prosecutrix had physical relations with the accused voluntarily and with her free consent and it was without any misconception of facts or any false promise of marriage. She apparently did not have any grievance at any stage in being physically involved with the accused and had physical contact with him on more than one occasions. She herself was willingly meeting him and having physical relations with him and this relationship has developed with the consent of the prosecutrix. Further, it is also clear from the evidence of the prosecutrix that no force was ever used by the accused when she went with him to his house with her consent. She has stated in her complaint (Ex.PW1/A) that she started liking him. She, being a major, was capable of understanding the complications and issues surrounding her marriage with Mr.Rajesh and then being involved with the accused to the extent of having physical relations with him and wanting to marry him. The Court fails to comprehend as to how the allegations of false promise of marriage and rape have been raised by the prosecutrix as she being already married woman could not have married the other man during the subsistence of her marriage.
Sessions Case Number : 81 of 2014.
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93.The prosecutrix has also deposed that she is married and living with her husband and children. She had herself deposed that she had told this fact to the accused. In such a situation, there was no occasion for the accused to offer marriage to her and then her accepting the same and questioning him as to when he would marry her since such a marriage is legally not permissible. It may be mentioned here that the hon'ble Supreme Court of India in the judgment reported as Prashant Bharti v. State of NCT of Delhi, MANU/SC/0063/2013: 2013 (1) SCALE 652 has observed in a similar case as follows:
"Priya married another man Manoj on 30.9.2008. This is evidenced by a certificate of marriage dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on the assurance of marriage."
94.In such a situation, the assertion made by the prosecutrix that the prosecutrix had physical relations with the accused, on the assurance that he shall marry her, is per se false and as such, unacceptable and unbelievable. It is apparently clear that the prosecutrix had herself got involved physically with the accused during the subsistence of her marriage with Mr.Rajesh from whom she had two children. She continues to live with her family. In such a situation the accused could not have married the prosecutrix, even if he wanted to, as she herself was not capable of marrying him being already married herself.
95.It can be seen from the evidence of the prosecutrix that the allegations leveled by her of rape by the accused are false and unbelievable. It seems Sessions Case Number : 81 of 2014.
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that she has not been raped but she was a consenting party to the physical relationship with the accused.
96.It is saddening to note that when the prosecutrix, a married woman, gets involved in an extra marital affair, inorder to save her marriage, she is projecting herself to be a victim and her paramour to be a culprit and guilty of raping her on a false promise of marriage when she herself cannot marry another man.
97.In the light of the aforesaid nature of deposition of the prosecutrix, PW2, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable.
98.Another improvement made by the prosecutrix is that in her examination in chief, she has deposed that the accused had raped the complainant 2-3 times during this period of 4 years and had threatened her with her obscene recording which he did not show to her. He also threatened her with those recordings and forced her to come to his house. However, it is clear from the record that no obscene recordings of the prosecutrix have been recovered from the accused or at his instance.
99.The prosecutrix has deposed that the accused threatened to kill her and her children but no averment has been made in the complaint (Ex.PW1/A) and statement under section 164 of the Cr.P.C. (Ex.PW1/C). This allegation also appears to be false as no explanation is coming forth from the prosecution regarding this improvement.
Sessions Case Number : 81 of 2014.
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100.In her cross examination, the prosecutrix has deposed that "It is correct that once police had apprehended me with a boy in Punjabi Bagh park in Punjabi Bagh. Vol. The police had told me that boy is a 'Gunda' and I should go home and not be with him and no case was made." This part of the deposition throws light on the character of the prosecutrix.
101.Another lapse which is revealed from the record is that the prosecutrix in the PCR form (Ex.PX9) has stated that the accused is her neighbor and in her complaint (Ex.PW1/A) that she knows the accused for four years. However, no proof has been produced and proved in the Court regarding the same.
102.DD No.38 A (Ex.PX8) is of misbehavior (badtamiji) and was made at 9.55 pm on 18.06.2014 while the FIR (Ex.PX4) was lodged at 1.25 am on 19.06.2014 after making of the complaint of rape (Ex.PW1/A). No explanation is coming forth from the prosecution regarding the delay.
103.The prosecutrix has categorically deposed that "I had shown the place of incident i.e. second floor of R-946, Raghubir Nagar to the police. I do not know whether or not site plan was prepared by the police." IO SI Bimla Devi (PW2) has not deposed anything about the site plan in her examination in chief and in her cross examination, she has deposed that "I had prepared the site plan after visiting the site with Ct. Raj Singh and the prosecutrix, at the instance of the prosecutrix. I did Sessions Case Number : 81 of 2014.
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not make the prosecutrix sign on the site plan and this is the usual procedure." Ct.Raj Singh (PW4) has deposed that "IO had prepared the site plan in my presence." Preparing the site plan and not making the prosecutrix sign on the same creates suspicion that the prosecutrix may not have been present nor pointed out the place of alleged incident.
104.The prosecutrix has deposed that she did not remember where she had written the complaint (Ex.PW1/A) and it was not in the presence of SI Anand Prakash (PW3). However, SI Anand Prakash has deposed that the prosecutrix had written the complaint in his presence and he had provided her the pen and paper.
105.It is not believable that a woman would go many times with a man after he has allegedly raped and threatened her. It is also not believable that such a woman who has been raped several times, will not disclose about the same to her family or any one else. It is also not believable that a woman who is already married would be befooled by the accused who assures marriage to her and had physical relations on the false pretext. When a woman is fully aware that a man is wrong since he has raped her and has given her threats, she will immediately make a complaint about the same and will not start liking him and wanting to marry him.
106.It also cannot be ignored that the very first information given by the prosecutrix to the police vide DD No.38 A (Ex.PX8) and the PCR form (Ex.PX9) do not find any mention of the prosecutrix being raped by the accused or made to have physical relations on a false assurance of Sessions Case Number : 81 of 2014.
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marriage. In fact, it is mentioned there that the accused had misbehaved (badtamiji) the accused had assured marriage to the prosecutrix and now was refusing to marry her.
107.The veracity of the testimony of the prosecutrix, as mentioned in her examination in chief, is shattered in her cross examination, which makes it highly improbable that such incidents, as alleged by her, ever occurred. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that the prosecution case against the accused is false.
108.The testimony of the prosecutrix is full of contradictions and it is not corroborated by other evidence on record. In such a situation, the accused becomes entitled to be acquitted. Reliance can be placed upon the judgment reported as Om Prakash alias Kalia v. State, 2011 (1) JCC
391.
109.The prosecutrix has claimed that she was threatened by the accused several times. However, the effect of the alleged threats has not been Sessions Case Number : 81 of 2014.
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disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused as she remained in his association for a very long time and there was no reason why she could not have disclosed about the alleged threats to her family, neighbours, police and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was neither any danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that she herself was in the company of the accused with her consent so much so that she preferred to remain there even when the accused was not there and was away to his office or elsewhere.
110.It would be relevant to mention here that during trial, the prosecutrix had filed an application on 24.11.2014 that she was receiving threats on behalf of accused from his brother Mr.Vishal and paternal uncle (Chacha) Mr.Mahavir and report on the same was submitted which showed that the police could not find any Mr.Mahavir and had taken appropriate action on the complaint.
111.The fact that the prosecutrix kept going again and again to the house of the accused and having physical relations with the accused only indicates that she was doing it with her free consent and was neither threatened nor black mailed by the accused into it. She has also not made any complaint to anyone about the offence. She had not raised any alarm at any point of time. This fact indicates that they were together with the Sessions Case Number : 81 of 2014.
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consent of the prosecutrix.
112.In the light of the aforesaid nature of deposition of the prosecutrix (PW1) who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
113.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
114.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
115.In the judgment reported as Suraj Mal v. The State (Delhi Sessions Case Number : 81 of 2014.
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Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
116.In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
117.Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
118.Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material and there being no forensic or medical evidence, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix claims to know the accused prior to the incident. If evidence of prosecutrix is read and Sessions Case Number : 81 of 2014.
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considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
119.If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
120.Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 376 of the IPC, section 376 read with sections 417 and 420 of the IPC and section 506 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the accused committed any offence against the prosecutrix.
MENS REA / MOTIVE
121.Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though Sessions Case Number : 81 of 2014.
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the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
122.The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
123.In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization.
Sessions Case Number : 81 of 2014.
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Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
124.In the present case, a story has been projected that the accused has raped the prosecutrix, assured marriage to her and had physical relations with her and threatened her and this version appears to be untrue as there is no reason why he would do so. No reason is shown as to why the accused would jeopardize his future as the prosecutrix is an already married woman with two children and not in a capacity to marry the accused during the subsistence of her marriage with her husband with whom she continues to live. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution.
125.There does not appear to be any criminal intention and mens rea on the part of the accused.
DEFENCE OF THE ACCUSED
126.In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has denied all the evidence against him. He has preferred not to lead any defence evidence.
127.The accused has submitted in his statement under section 313 of the Cr.P.C. that his brother Mr. Vishal aged about 16-17 years was playing Sessions Case Number : 81 of 2014.
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cricket in the park and the ball had hit the husband of the prosecutrix due to which the drugs carried by him had fallen down and he had demanded Rs. 2000-Rs. 2500/- which his brother did not pay and a fight had taken place. The accused had intervened and stopped the fight. Thereafter, the husband of the prosecutrix had gone away but had returned after sometime and the accused had made him go away again. He had again returned after about an hour with the prosecutrix and then she had called the police at 100 number and got the accused implicated in the present false case. The police of PCR had told me that they were taking me for a case of misbehaviour (badtimiji) but later he was falsely implicated in the present case. DD no. 38 A (Ex.PX-8) dated 18.06.2014 is regarding "badtmiji'.
128.The defence of the accused appears to be plausible considering the unreliable evidence of the prosecutrix which suffers from overwhelming contradictions and glaring inconsistencies. The defence of the accused has not been put to the prosecutrix in her cross examination although there is a suggestion that the prosecutrix wanted to extort money from him.
129.However, the case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.
130.It has already been discussed above that the evidence of prosecution is not reliable and is unworthy of credence. Therefore, the defence of the Sessions Case Number : 81 of 2014.
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accused appears to be plausible.
INVESTIGATION
131.The investigation conducted in the present case has been deposed by PWs 2 and 3, the second and the first Investigation Officers respectively and PW4, a witness of investigation. The FIR, documents of arrest of the accused, documents prepared during investigation etc. have been proved properly in the prosecution evidence.
132.The accused and his counsel have admitted the evidence of evidence of Dr. Ajay Sharma, Dr. Manjit Kumar and Dr. Ritu, who had medically examined the prosecutrix on 19.06.2014 vide MLC No.6274, E. No. 149635; evidence of Ct. Anita, who had taken the prosecutrix to DDU Hospital for her medical examination; evidence of Dr. Pallavi and Dr. Shashank Srivastava, who had medically examined accused on 19.06.2014 vide MLC No.6236, E. No.150220; evidence of HC Praveen Kumar, duty officer who had recorded FIR, made endorsement on rukka and issued certificate under section 65 B Evidence Act; evidence of Ms. Swati Singh, learned Metropolitan Magistrate, who had recorded the statement under section 164 of the Cr.P.C of the prosecutrix; evidence of SI Ravi Dutt, who had recorded DD No. 38 A, dated 18.06.2014; and evidence of WCt. Babli, who had recorded the call in PCR Call form. The accused and his counsel admitted the evidence of all the above mentioned witnesses and the documents prepared by them and or bearing their signatures.
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133.It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
134.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
135.Here, it would be important to mention that during investigation, SI Yad Ram was associated but he has neither been cited as a witness by the prosecution nor produced nor examined. He had written the application (on the directions of PW2 SI Bimla Devi) for recording the statement under section 164 of the Cr.P.C., identified the prosecutrix before the learned Metropolitan Magistrate and written the application for supply of copy of the statement under section 164 of the Cr.P.C.
136.In her cross examination, the prosecutrix has deposed that "My father Mr.Mukesh Kumar had come to the PS. Accused had called several persons from his side to the PS which included his paternal aunt (Bua), his father Mr. Manoj Kumar, his mother, his paternal grand mother, his brother, paternal uncle (Chacha) and many more." but none of them Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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are witnesses in the case nor they were produced and examined by any of the sides i.e. prosecution, prosecutrix and accused. By not citing, producing and examining the above named persons, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused.
137.The IO has not verified the address of the accused as the prosecutrix has given his address as R-946, Raghubir Nagar while the accused has claimed the same to be R-101, Raghubir Nagar. The accused has also produced and electoral card and driving licence (Ex.DX1 and Ex.DX2 respectively) in which his address is mentioned as R-101, Raghubir Nagar. PW2 has deposed in her cross examination that "The house no.
R-946 Raghubir Nagar i.e. place of incident is three storeyed building. I did not conduct any inquiries as to who was residing on the ground floor or on the first floor. I had gone to the top floor i.e. second floor where I had met the accused who was sitting in his house." However, the IO has not collected any evidence to show that the accused is a resident of R-946, Raghubir Nagar and that the offence was committed there.
138.As per the IO, the accused was arrested in the police station Khyala at about 8.00 p.m after interrogation but the arrest memo (Ex.PW1/B) shows the place of arrest as R-946 Raghubir Nagar and shows the signatures of Mr. Manoj Kumar, father of the accused at point X. The IO did not associate any person who may have been available on the ground and first floors of R-946 Raghubir Nagar in the investigation and the Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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arrest of the accused. She did not collect any identity proof of the accused.
139.SI Anand Prakash, PW3, has deposed that "No public person was present during my stay at spot. The prosecutrix wrote the complaint on road opposite R-946, Raghubir Nagar. I did not enter in house no. R-946, Raghubir Nagar. No person came outside from the above said house to see as to what was going on. I did not try to enquire whether any quarrel had taken place or not. I did not examine the mother of prosecutrix to verify the quarrel, if any. ...I did not ask about the accused from the resident of R-946, Raghubir Nagar. I did not try to apprehend the accused." Except for just formally going to the alleged spot of incident and taking the complaint, he has not cared to do any investigation.
140.The prosecutrix has deposed that the accused had prepared her obscene recordings but nothing has been recovered from the accused or at his instance.
141.The Investigation Officer has also not verified whether or not the accused was connected in any manner in the preparation and issuing of PAN cards when the prosecution has claimed that she had met him in connection of getting her PAN card prepared.
142.In the present case, it is clearly seen from the evidence of the prosecution especially of PW1 i.e. the prosecutrix as well as PWs 2, 3 and Sessions Case Number : 81 of 2014.
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4 that the allegations against the accused appear to be false.
FINAL CONCLUSION
143.The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that there appears to be an element of an extra marital affair between the prosecutrix and the accused and the present rape case was lodged probably to save the embarrassment for herself and maintain the relations with her husband.
144.It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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145.The prosecutrix is an adult, married and working lady. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about his conduct and behaviour at any time and having established physical relationship number of times with her consent and without any resistance. She never informed her husband or her family about her relationship with the accused or his offer to marry her. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
146.Since the evidence of the prosecutrix, PW1, is neither reliable nor believable as there are overwhelming contradictions in her different statements and as she is an already married woman with two children she could not have married with the accused during the subsistence of her marriage, the accused could not have promised to marry her, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
147.In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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prerequisites before conviction should be recorded, which are as under:
a.The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; b.The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
c.The circumstances should be of conclusive nature and tendency;
d.They should exclude every possible hypothesis except the one to be proved; and e.There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
148.Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix nor caused her abortion. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
149.Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.
150.Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved Sessions Case Number : 81 of 2014.
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beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.
151.If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.
152.It is a case of heinous crime of rape and causing abortion which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
153.The prosecution has miserably failed to prove that since two years ago at unknown date and time at his house no. R-946, Raghubir Nagar, Delhi within the jurisdiction of Police Station Khayala, he forcibly pushed the Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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prosecutrix (name mentioned in the file and withheld to protect her identity) in his house and forcibly committed rape upon her without her consent; since two years, as mentioned in the charge sheet, at unknown date and time at his house i.e house no. R-946 , Raghubir Nagar, Delhi, the accused had made physical relationship with the prosecutrix on the pretext of marriage several times and finally refused to marry her on 19.06.2014; and he also threatened the prosecutrix to kill her, as mentioned in her statement under section 164 of the Cr.P.C.
154.All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of rape of the prosecutrix by accused Mr.Kunal Kumar, of assurance of marriage and having physical relations with the prosecutrix and threatening her and the accused merits to be acquitted for the offence under section 376 of the IPC, section 376 read with section 417 and 420 of the IPC and section 506 of the IPC.
155.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Kunal Kumar.
156.Accordingly, Mr.Kunal Kumar, the accused, is hereby acquitted of the charges for the offences punishable under section 376 of the IPC, section 376 read with section 417 and 420 of the IPC and section 506 of the IPC.
Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
157.Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
158.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
159.It may also be mentioned here that with the changing times, the understanding of morality is also changing. A married woman with two children, during the subsistence of her marriage, gets involved in an extra marital affair and has physical relations with her paramour. Then, perhaps in order to save her marriage or to save herself from embarrassment of her extra marital affair being revealed, she conveniently lodges a criminal case of rape against her paramour claiming that he promised to marry her and had physical relations with her and then retracted from his promise.
Once her spouse knows about her relationship, she may have lost his trust. She may have fought, argued and defended herself. She can lie to her spouse but what is she fighting for when she knows that she has done something wrong? The worse happens when the children get to know about it. She needs to have guts to face her children who will not easily forgive their parents. This trend of extra marital affairs being converted into rape cases is being seen coming up as several such cases have been filed in the Court on similar allegations. When a lady herself is not in a capacity to marry another man during the subsistence of her marriage, then why should her paramour be prosecuted, incarcerated and be tried Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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for rape when it is actually just an extra marital affair. This kind of unscrupulous litigation is required to be nipped in the bud itself.
160.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
161.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 21st day of February, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 81 of 2014.
Unique Case ID Number : 02401R0351732014.
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