Delhi District Court
Bharwada Bhoginbhai Hirjibhai vs State Of Gujrat Reported on 25 July, 2017
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
S.C No: 122/13
FIR No : 307/2007
PS: Tilak Nagar
Under/section: 376/506/174A
IPC
State
Versus
Neeraj Kumar @ Mange Ram
son of late Sh Gajanand
resident of Flat No. 202, B4, Holy County
Apartments, Sector 5, Vashundhara, Ghaziabad
UP.
Date of receipt of file
after committal : 19/07/2013
Date of judgment : 25/07/2017
JUDGMENT
1. Present FIR has been lodged against accused Neeraj Kumar @ Mange Ram in the Police Station Tilak Nagar, Delhi for the offences under sections 376 and 506 of the Indian Penal Code (hereinafter referred to as the IPC) on the complaint of the prosecutrix (name mentioned in the file but withheld to protect her identity) that she had joined the company ie Shubham Finance Company as Receptionist and Field work job on 04/04/2007. She was asked to report the
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office on 10/04/2007. On 10/4/2007, she had gone to the office & at about 34 p.m, accused took the prosecutrix on his motorcycle on the pretext that some documents were to be collected from some person. Accused took her to his house at New Mahavir Nagar, Delhi. Nobody was present in that house. Accused committed sexual assault upon her without her consent at his house. When she tried to raise an alarm, accused had threatened her to kill her children. Thereafter, she came to her house and told the entire incident to her mother. Thereafter, the matter was reported to the police.
2. After hearing arguments, vide order dated 23/07/2015, accused Neeraj Kumar @ Mange Ram was charged for offence under sections 376/506 of the IPC. Accused Neeraj Kumar @ Mange Ram was also charged for the offence under section 174A IPC as he had absented himself from appearing before the court of Ld MM and he was declared P.O vide order dated 17/01/2009 passed by Ld MM. Accused pleaded not guilty and claimed trial.
3. In evidence prosecution has examined 22 witnesses to prove the guilt of the accused.
4. PW1 ASI Nirmala is the duty officer. She has stated that on 21/04/2007, on the basis of rukka, she had recorded the FIR of present case and proved the same as Ex.PW1/A.
5. PW2 ASI Brijesh Kumar has served the process under section 82 Cr.P.C on the accused and proved his report as
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Ex.PW2/A.
6. PW3 Ct Babu Lal took the exhibits of the present case from MHCM PS Tilak Nagar and deposited the same at FSL, Kolkatta on 28/05/2007.
7. PW4 Ct Virender Singh has deposited the two sealed pulandas along with one sample seal of the present case from FSL Ranhola, at FSL, Rohini on 20/05/2013.
8. PW5 Mr Gurdev Singh was the landlord of the accused Neeraj Kumar @ Mange Ram. He had deposed that accused Neeraj Kumar @ Mange Ram had vacated the premises about one and half years back and his statement was recorded by the police, which is Ex.PW5/A.
9. PW6 Inspector Manoj Kumar has deposed that on 26.07.2012, investigation of this case was marked to him. The accused was Proclaimed Offender in this case. During investigation, he came to know that accused Neeraj Kumar was residing in Vasundhara, U.P. On 18.05.2013, he along with HC Umed Singh, HC Gajender, HC Balwan and Ct.Mandeep reached the house of accused and the main door of the flat was opened by accused Neeraj Kumar. Witness interrogated him and accused disclosed his name as Neeraj Kumar @ Mange Ram. Witness had arrested accused vide arrest memo Ex.PW6/A. Personal search of the accused was conducted vide personal search memo Ex.PW6/B. Witness had recorded the disclosure statement of accused, same is
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Ex.PW6/C. Thereafter accused took them to the place of occurrence & pointing out memo in this regard was prepared by him, which is EX.PW6/D. After completion of investigation Charge sheet was prepared and filed before the Court. During trial, FSL result was obtained, which is Ex.PW6/X and the FSL report from Biological Division is Ex.PW6/X1.
10. PW7 HC Gajender Singh has joined the investigation of the present case with PW6 Inspector Manoj Kumar.
11. PW8 Sh Pradeep Kumar Mishra, Sr Scientific Officer has proved the FSL report as Ex.PW8/A.
12. PW9 HC Raj Kumar was the MHCM of PS Ranhola at the relevant time. He has deposed that on 18.05.2013 Inspector Manoj had deposited two sealed pulandas and one sample seal of SGMH, Mangol Puri vide entry in serial no.169 in register no.19. The photocopy of the relevant extract is Ex.PW9/A. On 20.05.2013 Ct. Virender took the entire case property along with sample seal from Malkhana and deposited the same with the office of FSL Rohini vide RC No.81/21/13. The copy of RC is Ex.PW9/B and copy of acknowledgment is ExPW9/C. On 13.08.2013, FSL result along with two sealed pulandas was deposited by Ct.
Surender in the Malkhana and entry was made in this regard is Ex.PW9/B.
13. PW10 Madan Singh has deposed that on 21.04.2007 SI
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Rajni Chopra had deposited one sealed pulanda and one sample seal of DDU hospital vide entry in serial no.4816 in register no.19 at Malkhana PS Tilak Nagar. The photocopy of the relevant extract is Ex.PW10/A. On 26.04.2007 SI Rajni Chopra had deposited one sealed pulanda vide entry in serial no.4829 in register no.19. The photocopy of the relevant extract is Ex.PW10/B. On 25.05.2013 Ct. Babu Lal took the entire case property along with sample seal from Malkhana and deposited the same with the office of FSL Rohini vide RC No.121/21/13. After depositing the same, Ct. Babu Lal came back to Malkhana and handed over copy of the RC and the acknowledgment received from the office of FSL. The copy of RC is Ex.PW10/C and copy of acknowledgment is ExPW10/D.
14. PW11 HC Kailash Chand has deposed that on 06.03.2008, he was posted as MHCM, at PS Tilak Nagar. Ct. Babu Lal had deposited the FSL result along with the case property in Malkhana after receiving the same from PS Vikas Puri where it was received from CFSL Kolkatta. Entry of same is Ex.PW10/A .
15. PW12 Dr Gurdeep Singh has medically examined accused and proved MLC of accused as Ex.PW12/A.
16. PW13 Ct Vijay Laxmi has joined the investigation of the present case with the IO on 21/04/2007.
17. PW14 Ct Mandeep has joined the investigation of the present with the IO on 18/05/2013.
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18. PW15 is the prosecutrix. (name mentioned in the file but withheld to protect her identity). She has deposed that in the year 2009, after seeing the advertisement in newspaper for the post of receptionist, she had gone to the office of Shumbham Finance Co, where she met with the accused . She was selected for the job. When she joined the office, accused told her that he had to collect money from someone who had refused to repay the amount. Accused took her to some place, which was probably Balbir Nagar. Accused told her that she should go to the house as a lady was in the house. Accused had not disclosed the name of the person, from whom the money was to be collected. She went to the house, which was opened by that lady. Witness inquired from that lady about her husband. That lady told the witness that her husband was not at home and then witness asked her for a glass of water. PW15 stated that she had entered the room and waited there for the lady to bring the water, but she did not come back. Rather, accused came there and bolted the room from inside. Thereafter, accused had forcibly raped her. Accused had also bitten her on her right cheek and had slapped her. After the incident accused had dropped her to main road of Vikas Puri . She had reported the matter to the police, which is Ex.PW2/A.
19. Witness has further deposed that on the day of incident, accused had actually taken her to his house at New Mahavir
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Nagar, New Delhi, which she came to know only during investigation, as the photographs of accused & his wife were displayed on the wall of room,. Next day of the incident, she had given a complaint in her own handwriting in PS Tilak Nagar . However, no action was taken by the police on her complaint. The incident of rape took place with her on 10th of March/April, 2007. After 23 days of incident, she had given another complaint in her own handwriting to the PS Tilak Nagar. After few days, she was called by IO SI Rajni Chopra in PS Tilak Nagar, where her statement was recorded, which was earlier exhibited as Ex.PW2/A in the proceedings u/s 299 Cr.P.C & later on exhibited as Ex.PW15/A. She was taken to DDU hospital for her medical examination. During investigation she had given her jeans to the IO, which she was wearing at the time of incident. The said jeans was seized vide seizure memo Ex.PW15/B. She had taken the police to the office of accused in Vikas Puri but the premises was found locked. She had also taken the police to the house of accused at New Mahavir Nagar. The landlord of accused Neeraj had stated that accused had vacated the premises, when police knocked the door, she saw the accused Neeraj there, but when she opened the door with the help of the police, accused had already fled away from there on his motorcycle from the rear door.
20. PW16 Dr Archana Sinha, Ld Additional District Judge
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has deposed that while she was posted as MM, accused was declared P.O vide her order dated 17/01/2009.
21. PW17 Mr Jai Bhagwan has deposed that there is no one by the name of Neeraj in their house. His brother's name is Mange Ram. He has further deposed that since the year 1990 as he and his brother Mange Ram had differences, they are not on talking terms. He had got married to a girl from Bhadurgarh and had started living in Uttam Nagar. He and Mange Ram had sold their house in the year 2000.
22. PW18 Dr Aruna Singh has proved the MLC of the prosecutrix as Ex.PW18/A.
23. PW19 Dr Monika Suri has proved the gynecological examination report on the MLC of prosecutrix, which is at point 'X to X1' on Ex.PW8/A.
24. PW20 Inspector Rajni Chopra is the IO of the case. She has deposed that on 21.04.2007 complainant came at PS and gave her statement, which is Ex.PW15/A. On the basis of her statement, she had prepared a rukka, which is Ex.PW20/A and handed over to the duty officer for the registration of the FIR, which is Ex.PW1/A1. She along with prosecutrix, Lady Ct. Vijay Laxmi, HC Sanjiv and Ct. Anand had gone to DDU hospital for medical examination of prosecutrix. Thereafter she along with prosecutrix, Lady Ct. Vijay Laxmi, HC Sanjiv and Ct. Anand went to the house of accused for his search but the house was found locked.
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Thereafter, they had gone to PVR Vikas Puri, Shubham Finance Company for search of accused but the same was also found locked. Thereafter, she had recorded the supplementary statement of prosecutrix. The copy of the notice u/s 160 Cr.PC Ex.PW20/B was pasted on the door of the house as the husband of landlady also refused to accept the notice. On 26.04.2007 , the prosecutrix came to the PS and gave her jeans, which she was wearing at the time of incident. The said jeans was seized vide seizure memo Ex.PW15/B. On 25.05.2007 the exhibits of the present case were sent to CFSL Kolkatta through Ct.Babu Lal. During the investigation, call details of the phone was obtained, which is collectively exhibited as Ex.PW20/D.
25. Witness has further deposed that at time of pendency of anticipatory bail application of accused Neeraj Kumar @ Mange, she contacted the advocate of accused Neeraj Kumar @ Mange. She came to know that accused belongs to village Beri. On 29.11.2007 NBWs were issued against accused on her application Ex.PW20/E and same were executed on 04.12.2007. On 05.12.2007 she sent HC Ved Parkash to village Beri. On inquiry, HC Ved Parkash came to know that accused Neeraj is also known by the name of Mange Ram and was not found in that village. Fresh NBWs were issued against accused on 18.08.2008 on her application Ex.PW 20/F. The NBWs were executed by her. She had recorded the statement
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of Mr. Gurudev Singh, landlord of the house no. L2/63 A, second floor, New Mahavir Nagar, Tilak Nagar Delhi, which is Ex.PW20/G. She had prepared the report in this respect, which is Ex.PW20/H. On 26.06.2008 she had moved an application before the Ld. MM for initiating the proceedings under section 82 Cr.PC against accused Neeraj,which is Ex.PW20/I. The abovesaid proceedings were executed through HC Brijesh & the report is Ex.PW20/J. On 03.11.2008 the process under section 83 Cr.PC was ordered to be issued by the Ld. MM on her application (Ex.PW20/K).
She had also recorded the statement of Gurudev Singh, the landlord of the house, which is Ex.PW20/L and her report in this respect is Ex.PW20/M. Accused Neeraj Kumar @ Mange was declared Proclaimed Offender by the Court of Ld. MM on 17.01.2009. Thereafter she was transferred from the PS and the file was handed over to MHC(R).
26. PW21 Dr Aruna Singh has proved the ultra sound report of prosecutrix as Ex.PW21/A.
27. PW22 HC Umesh Kumar has stated that on 21/04/2007, on the direction of the duty officer, he had handed over the original tehrir and computerized copy of the FIR to SI Rajni.
28. Thereafter prosecution evidence was closed.
29. Statement of accused u/s 313 Cr.P.C was recorded
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wherein he has denied the allegations. He has submitted that he has been falsely implicated in the present case. Accused had stated that he does not want to lead evidence in defense.
30. I have heard arguments from Sh Sumit Gauba, Ld Defense counsel for accused as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
31. It is submitted by Sh Sumit Gauba, Ld Defense counsel that, as per the allegation of the prosecutrix, incident of rape had taken place on 10/04/2007 but the FIR has been lodged on 21/04/2017, and no explanation for the delay in lodging the FIR has been tendered by the prosecutrix. It was further submitted by Ld defence counsel that medical evidence is not supporting the case of the prosecution. Even the FSL result is in favour of the accused. Therefore, it is prayed by Ld defense counsel that accused be acquitted, for the offences, he is charged with, as the prosecution has failed to prove its case beyond reasonable doubt against the accused.
32. On the other hand, Sh Subhash Chauhan, Ld Additional P.P had submitted that prosecution has proved its case beyond reasonable doubt against the accused, as prosecutrix has categorically stated that accused had raped her on 10/04/2007 and due to the negligence on the part of the IO, delay was caused in registration of the FIR, therefore, FSL result has not been conclusive against the accused. It was further submitted by Ld Additional P.P that even, the sole
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testimony of the prosecutrix, if reliable and cogent, can be considered for the conviction of the accused. Therefore, it is prayed by ld Additional P.P that accused be convicted for the offences, he is charged with.
33. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
34. In the present case, accused has been charged for the commission of offence u/s 376 read with section 506 IPC, as it is alleged against accused that on 10/04/2007, accused had committed rape upon the prosecutrix and had threatened her to kill her children, in case she raised any alarm. Accused was also charged for the commission of offence punishable under section 174A IPC as he was declared P.O on 17/01/2009 by Ld MM, when he failed to appear before the court on 17/01/2009.
35. In order to prove the offence of rape, prosecution has to prove that the sexual relations were established between the prosecutrix and the accused on the alleged date, time and place and said relations were established either without consent of the prosecutrix or against her consent in the manner as provided in section 375 IPC. In the present case, FIR was lodged on 21/04/2007 for the commission of alleged offence of rape on 10/04/2007 but accused could not be arrested by the IO, hence he was declared P.O on 17/01/2009 and finally in the year 2012, when present case was taken out
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from the cold cases, Inspector Manoj Kumar had arrested the accused on 26/07/2012 from Vasundhra, UP and thereafter, charge sheet was filed.
36. In order to prove the offence of rape ie fact that forcible sexual relations were established between the parties, apart from the testimony of the prosecutrix, prosecution is required to prove the medical documents, if any, to prove the sexual assault and scientific evidence by way of FSL report.
37. It is settled legal position that conviction of the accused in rape case can be based on the sole, uncorroborated testimony of the prosecutrix and refusal to act on the testimony of victim of sexual assault in the absence of corroboration as a rule would amount to adding insult to injury. In the case of Bharwada Bhoginbhai Hirjibhai vs State of Gujrat reported in AIR 1983 SC 753 dealing with the uncorroborated testimony of a victim of sexual assault, Hon'ble the Apex Court held as under:
"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelieve of suspicion? To do so is to justify the charge of male chauvinism in a male
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dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly, planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offfence in the backdrop of the social ecology of the Western World.
It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitude, mores, responses of the Indian Society, and its profile. The identities of the two worlds are different. The solution of problem cannot therefore be identical.
38. In the case of State of Punjab vs Gurmeet Singh reported in 1996 Cr.L.J 1996, Crl. L J 172, the Hon'ble Apex Court took a view that the courts dealing with the rape cases shoulder a greater responsibility and they must deal with such cases with utmost sincerity. Relevant para of the said judgment is reproduced as under:
"...It is an irony that while we are celebrating
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women's right in all spheres. We show little or no concern for her honour. It is a said reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assaultit is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female."The Courts, therefore, shoulder a 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 prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reasons the Courts find it difficult to place implicit reliance on her testimony,it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual
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molestation.."
39. Thus, as per Gurmeet Singh's case ( mentioned above), it is the duty of the courts dealing with rape cases to ensure that within the parameters of law, specially Evidence Act, the dignity and honour of the victim should be maintained and this type of cases should be dealt with great sensitivity. In a series of judgments, Hon'ble Supreme Court has held that the testimony of the prosecutrix should not be treated as the testimony of accomplice. Rather it is to be treated at par with the testimony of victim or injured. Minor discrepancies and insignificant contradictions in the statement of the prosecutrix, which are not fatal in nature, should not be given undue weightage to throw out an otherwise reliable prosecution case. By this judgment, Hon'ble Supreme Court has held that if the testimony of prosecutrix inspires confidence, it must be relied upon and in such like case, there is no necessity of seeking corroboration of statement of the prosecutrix in material particulars.
40. In the case of Vijay @ Chinee vs State of Madhya Pradesh: (2010) 8 SCC 191, the Hon'ble Apex Court has dealt with the issue and held that:
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The court may
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convict the accused on the sole testimony of the prosecutrix.
41. In view of above mentioned judgments, it is clear that even if the medical evidence and scientific evidence are not supporting the case of the prosecution, only on the basis of testimony of the prosecutrix, if it is cogent, specific, reliable and trustworthy, case of the prosecution can be considered to have been proved and it does not require any further corroboration. In view of these facts and settled principle of law, now I will discuss the testimony of the prosecutrix.
42. In the present case, accused was declared P.O. Charge sheet was filed under section 299 Cr.P.C and prosecutrix was examined by Ld MM as PW2. After the arrest of the accused in 2012, the supplementary charge sheet was filed and charge was framed against accused on 23/07/2013 and thereafter, prosecutrix was examined as PW15. After considering the testimony of prosecutrix as PW2 recorded before Ld MM and testimony of prosecutrix, recorded as PW15, before this court, it is clear that there are material variations and improvements in the testimony of the prosecutrix, recorded at two different stages.
43. The case of the prosecution is that prosecutrix had started working in the company of the accused on 10/04/2007 and on the same date, accused had taken her to some place, where she was subjected to sexual assault by the
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accused, as the house where accused had taken the prosecutrix, was the house of the accused. In examination in chief recorded as PW15, prosecutrix had stated that after the incident of 10/04/2007, she had gone to PS Tilak Nagar, from where she was sent to PS Vikaspuri and then from PS Vikaspuri, she was again sent to PS Tilak Nagar. She had also stated that she had given 23 written complaints to the IO at PS Tilak Nagar, but no action was taken by the IO on those complaints and only on 21/04/2007, IO had registered the FIR in her case. At this point of time, it is important to note, that complaint Ex.PW15/A, on which, FIR was registered, is not in the handwriting of the complainant. No explanation has been tendered either by the prosecutrix or by the IO, as to why the alleged written complaints given by the prosecutrix have not been placed on record. Prosecutrix has also not stated as to what action, she has taken, when her complaint was not registered by the IO on the very first date, when she gave the written complaint to police. PW15 ( prosecutrix) is also silent on the point, whether she had made any complaint to the senior police officers regarding inaction of the IO or not. This, itself, raises doubt against the conduct of the prosecutrix.
44. In the statement of the prosecutrix recorded as PW2 in the proceedings under section 299 Cr.P.C, prosecutrix had stated that after the incident, she had gone to her house and
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on the next date she had visited PS Khajuri, from there she was directed to go to PS Vikaspuri and from PS Vikaspuri, she was asked to go to PS Tilak Nagar. But in the evidence recorded as PW15, prosecutrix has no where stated that on the next date of incident, she had gone to PS Khajuri. Rather, she had stated that on the very next date of alleged incident, she had visited PS Tilak Nagar and then she was directed to go to PS Vikaspuri and then again she was sent to PS Tilak Nagar. In the entire testimony of PW15, it is not clear as to where she had given the written complaint, whether at PS Vikaspuri or at PS Khajuri or at PS Tilak Nagar, as stated by her in examination in chief, recorded, while she was examined as PW15.
45. It is also clear from the testimony of prosecutrix recorded as PW2 that she had informed the incident to her brother and other members of the family on the very next day, but in her statement recorded as PW15, prosecutrix had stated that she had informed about the incident to her cousin Mr Ashish on 12th or 13th AprilMay 2007 & then Mr Ashish had accompanied her to PS Tilak Nagar. Thus, testimony of Mr Ashish was very important for understanding the sequence of events but Mr Ashish was not examined by prosecution nor he had been made witness in the present case. Thus vital piece of evidence was withheld by prosecution.
46. The testimony of the prosecutrix is even otherwise full of
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contradictions and material discrepancies, which makes the same vague, ambiguous and non specific. some of the instances of the material discrepancies, which have cropped up in the testimony of the prosecutrix, who was examined earlier in the proceedings under section 299Cr.P.C as PW2 and later on after the arrest of accused as PW15 are that:
a) firstly prosecutrix had stated in her examination in chief that she was not aware of name of the person and the amount of money, which accused had to recover from the said person. But later on, in the cross examination recorded on 03/06/15, prosecutrix had stated that accused had told her that he had to recover a sum of Rs.5,000/from a man, living in the house ie the place of incident.
No explanation has been tendered by the prosecution or the prosecutrix, as to why this fact was not stated by the prosecutrix during her examination in chief and how she has come to know about the amount of money to be recovered by the accused only during cross examination.
b) Secondly, it is the case of the prosecution that accused had committed rape upon the prosecutrix on the alleged date of incident. As per charge and as per evidence of the prosecutrix recorded as PW 15, accused had allegedly committed rape upon the prosecutrix on the alleged date of incident, but when prosecutrix was examined as PW2, she had stated that, "he wanted to do intercourse with me but I did not allow him although he was discharged on my thigh while he was trying to do intercouse with me.
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I removed the semen from my thigh with my jeans, which was wearning on the day of incident".
This is material contradiction, which affects the root of the case. In one statement, prosecutrix had stated that accused could not establish the physical relations with her whereas in the later statement recorded as PW15, she had stated that accused had raped her. At this stage, it is important to notice that incident in the present case relates to the year 2007 ie section 375 IPC (before the Amendment Act 2013) applies here, which provides that pentration was required for the commission of offence of rape. But in this case, prosecutrix is silent in this regard, in her statement, when she was examined as PW2, she had specifically stated that accused could not establish physical relations with her, as she did not allow him.
c) Thirdly prosecutrix had stated in her evidence, ie examination in chief, as PW15 that after commission of the incident of rape, accused had said "sorry" to her, but she has not stated about any threat being given by the accused to the prosecutrix after the incident of rape. Whereas in her testimony recorded as PW2, prosecutrix had stated that accused had told her that if she will raise noise then he will kill her. In both the sentences prosecutrix has no where stated that accused had ever threatened her of killing her children. Although, she had mentioned in her first complaint, on which FIR was registered (Ex.PW15/A) that accused had threatened her to kill her children, if she will tell about the incident to any
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person. But the same fact is not narrated by the prosecutrix in her statement recorded during the proceedings under section 299 Cr.P.C nor in the statement recorded as PW15.
d) Fourthly, it is important to note, that in examination in chief as PW15, prosecutrix had stated that when police had gone to the house of accused, accused was not found there but in the cross examination conducted on 03/06/15, she had specifically stated that accused along with one lady was taken by the police in PCR van but later on they were allowed to go. This is a material contradiction in the testimony of the prosecutrix, which gains more importance in the light of the fact that accused was declared P.O, when the statement of the prosecutrix was recorded and could only be arrested in the year 2012 ie after a gap of 5 years. If any such opportunity was provided to accused by any police official for escaping the provision of law, then, it was the duty of the prosecutrix to inform the senior officers of the police or atleast to the court, so that action could have been taken against erring official at the appropriate stage. But, the behavior of prosecutrix in keeping the silence, shows that her testimony is untrustworthy.
47. In view of these above material contradictions poined out by me, I am of the opinion that the testimony of the prosecutrix suffers from material contradictions and thus cannot be said to be cogent, specific, trustworthy and unambiguous.
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48. Further, it is also important to mention, at this stage, that though the prosecutrix had stated that incident had taken place in the year 2007 but during her evidence, in her examination in chief as PW15, she had stated that incident had taken place in the year 2009, she was not even aware of the month, when the alleged incident had taken place. She has somewhere stated the month to be April and somewhere, she had stated the month to be May 2007. Though, it has been alleged by the prosecutrix that she had given written complaints to the PS Tilak Nagar for taking action against accused but the copy of such complaint has not been filed or proved on record by the prosecutrix. Even, prosecutrix is silent about any action being taken by her against the SHO PS Tilak Nagar at the relevant time for his inaction ie whether she made the complaint to the senior police officer about inaction of the police or not. This lacuna in the statement of the prosecutrix further weakens the case of the prosecution against accused.
49. Last but not the least, it is important to point out that though prosecutrix had stated that she had seen the advertisement of job, in the accused company, in the newspaper and within few days of the advertisement, she had applied for the job and had gone to the office for the first day on 10/04/2007, but she has not placed on record either the
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newspaper or any appointment letter given to the prosecutrix by the accused, in order to prove the case that she had actually gone for the interview or had worked for the advertised job for one day.
50. In view of my above discussion, I am of the opinion that testimony of the prosecutrix is unreliable and suffers from material contradictions and discrepanies, hence is not reliable & trustworthy. The prosecution has failed to prove that accused has committed the offence punishable under section 376 IPC against the prosecutrix. Prosecution has also not been able to prove that accused had ever threatened to kill her or kill her children, as the prosecutrix had specifically stated in her examination in chief recorded as PW15 that after the incident, accused had very well laughed but lateron had apologized to her. The testimony of the prosecutrix is silent about any threat given to her by accused. Hence prosecution has also failed to prove that accused had ever threatened the prosecutrix.
51. Accused has also been charged for the offence punishable under section 174A IPC. It is the case of the prosecution that accused had failed to appear before the court of Ld MM and he was declared P.O on 17/01/2009 by Ld MM. By the testimony of PW16 Dr Archana Sinha, who was working as Ld MM at that time, it is clear that accused was declared P.O on
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17/01/2009 as he had failed to appear before the court inspite of the warrants and execution of the proceedings under section 82Cr.P.C and section 83 Cr.P.C. Therefore, I am of the opinion that prosecution has proved its case against the accused for the offence under section 174A IPC.
52. In view of my above discussion, the accused is acquitted for the offence punishable under section 376/506 IPC. Accused is convicted for the offence punishable under section 174 A IPC.
Announced in the open Court on (SHAIL JAIN) this 25th July , 2017 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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