Delhi District Court
State vs Narender Singh @ Monty. -:: Page 1 Of 57 ... on 7 June, 2013
-:: 1 ::-
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
State
versus
Mr. Narender Singh @ Monty
Son of Mr. Harjinder Singh,
Resident of WZ-42, Gali No.1, Krishna Puri,
Tilak Nagar, Delhi.
Also At : Idgaah Hills, Advocate Colony, Bhopal (M.P.)
First Information Report Number : 159/2009.
Police Station Tilak Nagar.
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 24.05.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 05.09.2011.
In the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 07.06.2013.
Date of judgment : 07.06.2013.
Appearances: Mr.Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. Avtar Singh and Mr.Mohinder
Pal Singh.
************************************************************
JUDGMENT
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 1 of 57 ::-
-:: 2 ::-
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This case falls in the list of twenty oldest cases pending before this Court and a sincere endeavour has been made to dispose it expeditiously.
2. This is shockingly another case of alleged rape of a maid from a Placement Agency in the house of her employer (this time by the son in law of the employer).
3. Rape is 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 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 adult who is known to Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 2 of 57 ::-
-:: 3 ::-
her, as in the present case.
PROSECUTION CASE
4. Mr. Narender Singh @ Monty, the accused, has been charge sheeted by Police Station Tilak Nagar, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 12.05.2009 at about 2.00pm at WZ-42, Gali No.1, Krishna Puri, Tilak Nagar within the jurisdiction of Police Station Tilak Nagar, he committed rape upon prosecutrix (name withheld to protect her identity) aged 20 years.
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 24.05.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 05.09.2011 of the learned Sessions Judge, Delhi. The case was subsequently transferred to this Court i.e. the Court of the Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
6. After hearing arguments, charge for offence under section 376 of the IPC was framed against the accused by the learned predecessor on 10.10.2011.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 3 of 57 ::-
-:: 4 ::-
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as 20 witnesses. HC Naresh Kumar, the Duty Officer who had recorded the formal FIR of the case, is PW1; Dr. Amit Mehtani, who had medically examined the prosecutrix, is PW2; ASI Sarla, the investigation officer of the DD No.36-A and FIR No. 128/09 under sections 381/411/34 IPC, PS Tilak Nagar, is PW3; WHC Urmila, who took the prosecutrix to DDU hospital for medical examination, is PW4; prosecutrix is PW5; ASI Neelam, the Investigation Officer, is PW6; Mr. Amarjeet Singh, father in law of accused, is PW7; WASI Uma Bhardwaj, who got recorded the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C) of prosecutrix, is PW8; Dr. Megha, who had medically examined the prosecutrix, is PW9; Ct. Daya Ram, witness of investigation in FIR No. 128/09 under sections 381/411/34 IPC, PS Tilak Nagar, is PW10; W Ct. Julita, witness of investigation in FIR No. 128/09 under sections 381/411/34 IPC, PS Tilak Nagar, is PW11; Ms. Shelly Arora, learned Metropolitan Magistrate, is PW12; Mr.Bhupesh Kumar, Ahlmad, had produced the judicial file pertaining to FIR No. 128/09 under sections 381/411/34 IPC, PS Tilak Nagar, State v. Teena @ Alijabeth, is PW13; Ct.Mahipal, who had informed the PS about the prosecutrix being brought to DDU Hospital vide DD No.25A dated 25.06.2009, is PW14; W HC Sudesh, a witness of investigation in FIR No. 128/09 under sections 381/411/34 IPC, PS Tilak Nagar, is PW 15; Inspector Om prakash, Investigation Officer, is PW16; HC Ram Lal, the MHC (M), is PW17; Dr.A.K.Srivastava, FSL expert, is PW18; HC Ram Sahay, Duty Officer who recorded DD No.25A, is PW19; and SI Lallan Prasad, Investigation Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 4 of 57 ::-
-:: 5 ::-
Officer of FIR No. 128/09 under sections 381/411/34 IPC, PS Tilak Nagar, is PW20.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
8. In his statement under section 313 of the Cr.P.C., recorded on 20.05.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. A theft case was lodged against the prosecutrix as she has committed theft of the articles belonging to his wife. As he and his family had lodged a theft against the prosecutrix in which the articles were recovered from her possession and the possession of the co-accused, she has implicated him in the present false case. Accused has preferred to lead any evidence in his defence.
DEFENCE EVIDENCE
9. The accused has examined Mr.Trilochan Singh as DW1. Thereafter, the defence evidence was closed on 30.05.2013 ARGUMENTS
10. 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.
11. The Additional Public Prosecutor for the State has requested for Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 5 of 57 ::-
-:: 6 ::-
convicting the accused for having committed the offence under section 376 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 corroborative and reliable.
12. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. This case is only a counter blast to the theft case lodged against the prosecutrix.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
13. As per the allegations of the prosecution including the complaint of the prosecutrix and her statement under section 164 of the Cr.P.C., that on 12.05.2009 at about 2.00pm at WZ-42, Gali No.1, Krishna Puri, Tilak Nagar, the accused had committed rape upon prosecutrix aged 20 years.
14. The prosecution story unfolds with that DD No.25-A (Ex.PW6/B) regarding sexual assault of prosecutrix vide MLC No. 12173/09 marked to ASI Neelam. She recorded the statement of prosecutrix (Ex.PW5/A) under section 164 Cr.P.C. After medical examination of prosecutrix, doctor handed over two sealed parcels along with sample seal of DDU hospital to ASI Neelam. She further handed over the same to ASI Sarla, who seized the same vide seizure memo (Ex.PW6/A). WASI Neelam lodged the DD No. 36-A (Ex.PW3/A) Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 6 of 57 ::-
-:: 7 ::-
regarding handing over certain documents i.e. FIR No.128/09, U/s 381/411/4 IPC against prosecutrix and co-accused Priyanka and Nayyar. ASI Sarla deposited the case property handed over by WASI Neelam to MHCM and lodged the DD No.37-A(Ex.PW3/B). Mr. Amarjeet Singh, father in law of accused had submitted that prosecutrix took away jewellery and article of her daughter and ran away from the house, his statement (Ex.PW7/A) was recorded. On 13.07.2009, HC Naresh Kumar, the duty officer, (PW1) recorded the formal FIR (Ex.PW1/A). The endorsement on rukka (Ex.PW1/B) was made. Prosecutrix was medically examined vide MLC (Ex.PW2/A) by Dr.Amit Mehtani (PW2) in the DDU hospital. Ms.Shelly Arora, learned Metropolitan Magistrate, (PW12) had recorded the statement (Ex.PW5/B) and conducted the entire proceedings under section 164 Cr.PC (Ex.PW12/A). After the completion of the investigation, the challan was put to the Court for trial. Dr.A.K.Shrivastava (PW18) examined the exhibits of the case vide his report (Ex.PW18/A).
TESTIMONIES OF THE PROSECUTION WITNESSES
15. It is important to elaborate the testimonies of the prosecution witnesses.
Most Material Witness-Prosecutrix
16. PW5, the prosecutrix had deposed that on 26.05.2008, one of her distant relative namely Ms.Priyanka brought her to Delhi from Jharkhand for getting her job at Delhi. She took her to Ghaziabad first where she worked as a maid servant for about three months in a house. Thereafter, on 13.10.2008, she worked in another house of Mr.Amarjeet Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 7 of 57 ::-
-:: 8 ::-
Singh at WZ-42, Gali No.1, Krishna Puri, Tilak Nagar, Delhi as a maid servant for Rs.1500/- per month. She used to clean the house and also used to clean the utensils. In January, 2009, her father came there and he took her salary of four months from Mr.Amarjeet Singh. There were two sons, one daughter in law and wife of Mr. Amarjeet Singh in that house. Both the daughters of Mr. Amarjeet Singh were married. The younger daughter of Mr.Amarjeet namely Ms.Bunty was pregnant at that time and had started staying in the house of Mr.Amarjeet for 15 days prior to the incident. The husband of Ms.Bunty namely Mr.Monti (the accused) was also staying in that house. On 12.05.2009, Mr. Amarjeet Singh had gone out of the house for some work and his daughter Ms.Bunty was admitted to the hospital and wife of Mr.Amarjeet was also staying in the hospital to look after Ms.Bunty. The daughter in law of Mr. Amarjeet Singh namely Ms.Seema used to stay on the first floor in her room. On 12.05.2009, at about 2.00pm, she was working in the kitchen on the ground floor. Accused was in the room adjoining in the kitchen at that time. He asked for a glass of water from him. She took water to that room. After drinking the water, the accused tied both her hands with her chunni, affixed a brown colour tape on her mouth and thereafter closed the door of the room from inside. Accused then put off her salwar forcibly and laid her on the bed and thereafter had sexual intercourse with her without her consent. Thereafter, he threatened her that if she told the incident to anybody he would get her killed and would also get her falsely implicated in a theft case and would get her landed in jail. She had shouted loudly and had screamed also but nobody listened her. She had not told the incident to anybody at that time due to fear of accused. At about 6.00 pm, when all the family members returned to Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 8 of 57 ::-
-:: 9 ::-
the house, the accused blamed her of stealing the jewellery articles of his wife Ms.Bunty and he even beat her in the presence of other family members. She had told the incident of rape to the wife of Mr.Amarjeet but nobody believed her and they believed the accused only. She was taken to PS Tilak Nagar on false pretext of stealing jewellery articles of Mr.Bunty. She had told the police officials also that she had not stolen any articles from the house of Mr. Amarjeet and also told about the rape committed upon her by the accused but police officials also did not believe her. She was again sent to the house of Mr. Amarjeet. She was beaten up daily by accused and other family members with danda (stick) on her buttocks and legs everyday and everyday she was accused of stealing jewellery articles of the accused and it was also alleged that she had handed over the stolen jewellery articles to some one and Ms. Priyanka Didi inspite of fact that she had not stolen anything from the house of Mr. Amarjeet. On 17.06.2009, accused Monti and Mr. Amarjeet Singh took her to PS Tilak Nagar. She was confined at PS for two days and beaten up also severely by ladies and gents police officials and was implicated in a theft case. On 19.06.2009, she was taken for her medical examination at DDU hospital. There she had tried to tell the doctor about the incident of rape but could not tell about the incident as police officials of PS Tilak Nagar were with her and she was under fear of those police officials. She was again brought to PS Tilak Nagar after her medical examination and thereafter was sent to Tihar Jail No.6 from there. After about 15 days, when she again went to DDU hospital for check up from Tihar Jail, there she told doctor about the incident of rape by accused. She had told the incident of rape to a police official in Tihar Jail. Her statement was recorded by police official in Tihar Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 9 of 57 ::-
-:: 10 ::-
Jail (Ex.PW5/A). Her underwear was taken by the doctor at the time when she was medically examined. She was brought to Tis Hazari Court after few days and her statement was recorded by the Magistrate (Ex.PW5/B). She had shown the place of occurrence to the police. She identified the case property i.e. her under wear. She has been cross examined at length.
Public Witness
17. PW7, Mr. Amarjeet Singh, is the father in law of accused. He has deposed that he is builder by profession and he brought the prosecutrix from a placement agency namely Raj Laxmi Placement Agency on 12.10.2008. He had a contract with the placement agency for 11 months. He had four children out of which two daughters and two sons. One of his daughters namely Ms. Charanjit is married and living at Vikas Puri and his daughter Ms.Inderjeet was married in Bhopal with the accused Narender Singh @ Monti. His daughter Ms. Inderjeet was in a family way and came to his place in the month of April, 2009 for delivery of the child. She was admitted in the hospital on 05.05.2009 and a baby girl was delivered on 08.05.2009 and his daughter was discharged from hospital on 10.05.2009. There was a religious ceremony namely Sukhmani Sahib Paath on 13.05.2009 at their house and their relatives started coming on 12.05.2009. On 20.05.2009, the prosecutrix took away jewellery articles of her daughter and ran away from the house. He reported the matter to the police and FIR was also lodged in this regard. On 19.06.2009, the prosecutrix was arrested and some cash, one gold kada, one watch, one chain and one gold ring were recovered at the instance of prosecutrix. The allegations of rape made by the prosecutrix are false since there were relatives in the house and other Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 10 of 57 ::-
-:: 11 ::-
members present in the house this was not possible. The recoveries made at the instance of prosecutrix from the house of owner of Raj Laxmi Placement Agency. His statement (Ex.PW7/A) was recorded by the police.
Police Witnesses-Formal
18. PW1, HC Naresh Kumar, is the Duty officer who had recorded the formal FIR (Ex.PW1/A) of the present case.
19. PW4, WHC Urmila had deposed that she took the prosecutrix (who was accused in another case) to Deen Dayal Upadhay Hospital from Tihar Jail where the prosecutrix was medically examined and the doctor prepared some exhibits and thereafter she took the prosecutrix to Central Jail No.6 again.
20. PW8, WASI Uma Bhardwaj has got recorded the statement under section 164 Cr.P.C of the prosecutrix before the Court. She also made local enquiries about the incident. On 27.10.2009, she was transferred and handed over the file to Reader to ACP, DIO.
21. PW14, Ct. Mahipal, has deposed that on 25.06.2009, he was posted as Duty Ct. from P.S. Hari Nagar at DDU hospital. On that day, the prosecutrix R/o CJ-6, Tihar Jail has been brought by WCT. Urmila for her medical examination as she has suffered a sexual assault. He gave information vide DD no. 25 A dated 25.06.2009 (Ex.PW6/B)to P.S. Hari Nagar on which IO WSI Neelam had come and had got the prosecutrix medically examined. She has also taken the MLC and exhibits pertaining Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 11 of 57 ::-
-:: 12 ::-
to the prosecutrix from the concerned doctor. Thereafter the prosecutrix was taken back to Tihar Jail.
22. PW19, HC Ram Sahay, has deposed that on 25.06.09, he was the Duty Officer and his duty hours were 8:00 am to 4:00 pm. At about 2:20 pm, an information was received from DDU hospital through Ct. Mahipal that one lady I.e. the prosecutrix r/o C-J 6, Tihar Jail aged about 20 years was brought by lady Ct. Urmila with the alleged history of sexual assault. The said information was recorded by DD No. 25 A (already exhibited as Ex-PW6/B). After recording the said DD it was marked to ASI Naval Singh who along with Ct. Sandeep went to investigate the matter.
23. PW17, HC Ram Lal, is the MHC (M). He has deposed that on 13.07.2009, ASI Sarla deposited three sealed pulendas and one sample seal with the seal of DDU Hospital vide serial no.4744 in register no.19 (Ex.PW17/A). On 21.08.2009, the aforesaid pulendas and sample seal were sent to FSL Rohini through Ct. Ravinder vide RC No.56/21/09 (Ex.PW17/B). Ct. Ravinder deposited the aforesaid pulenda at FSL office and handed over receipt of the same (Ex.PW17/C) to him. The FSL report was received on 03.04.2010 and entry regarding the same was made in Ex.PW17/A at point A Witnesses-Medical
24. PW2, Dr. Amit Mehtani, had medically examined the prosecutrix and has proved the MLC No. of the prosecutrix (Ex.PW2/A). Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 12 of 57 ::-
-:: 13 ::-
Thereafter, the patient referred to Gynecologist for further examination.
25. PW2 has also proved the MLC No.11644 dated 19.06.2009 whereby the prosecutrix was medically examined by Dr.Reepal Kumar (Mark X) wherein she had not revealed about the sexual assault
26. PW9, Dr. Megha, has deposed that on 25.06.2009 while she was posted as MO Gynae in DDU hospital, New Delhi, she had medically examined the prosecutrix vide MLC No.12173 (Ex.PW2/A) at 1.30 pm and then she had been referred to SR Gynae.
Witness-Forensic
27. PW18, Dr. A.K.Srivastava, Deputy Director FSL, Rohini, Delhi has deposed that on 21.08.2009, vide letter no.1813/SHO/Tilak Nagar dated 20.08.2009, two sealed parcels were received in the office of the FSL on 21.08.2009 in connection with FIR No.159/09 dated 13.07.2009 under section 376 IPC, PS Tilak Nagar. The same were examined by him and he gave his detailed report (Ex.PW18/A).
Police Witnesses-Investigation
28. PW3, ASI Sarla, had deposed that on receipt DD No.36-A (Ex.PW3/A) regarding handing over certain documents of WASI Neelam regarding case FIR No. 128 of 2009, under section 381/411/34 IPC against prosecutrix and co-accused Ms.Priyanka and Mr.Nayyar. WASI Neelam handed over case property (slide of vaginal smears etc.). This DD was marked to her by SHO PS Tilak Nagar for inquiry. She deposited the case Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 13 of 57 ::-
-:: 14 ::-
property handed over by WASI Neelam with MHCM and lodged DD No. 37-A, (Ex.PW3/B). On the direction of ACP West District, she conducted local enquiry. She sought opinion of prosecution branch and on the basis of such opinion SHO made endorsement on the statement of prosecutrix Mark A and the endorsement of SHO is mark B and a formal FIR was registered. Since prosecutrix was in Tihar jail, she went to Tihar Jail for recording the statement under section 161 Cr.P.C, but the prosecutrix refused to give any statement to her and stated that she would give the statement in Court only. On request of the counsel for the prosecutrix to transfer the case to some other District, this case was transferred DIU.
29. PW6, ASI Neelam is the first Investigation Officer of the case. She has deposed that on 25.06.2009, she received DD No.25-A (Ex.PW6/B) from Deen Dayal Upadhay Hospital regarding allegations of sexual assault of prosecutrix, resident of Central Jail No.6, Tihar Jail, aged 20 years female vide MLC No.12173/09. The DD was marked to her. She went to Deen Dayal Upadhay Hospital first, where she came to know that prosecutrix had been medically examined and has been sent to the Tihar Jail. In Deen Dayal Upadhay Hospital, she was handed over two sealed parcels along with sample seal of hospital. She went to Tihar Jail and recorded the statement of prosecutrix (Ex.PW5/A). She handed over both the sealed parcels and sample seal of hospital to ASI Sarla, who seized the same (Ex.PW6/A). She also handed over the statement of prosecutrix and MLC of prosecutrix to WASI Sarla at PS Tilak Nagar, as the incident had taken place in the area of PS Tilak Nagar and investigation of this case had been marked to WASI Sarla. WASI Sarla lodged the DD No.36- Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 14 of 57 ::-
-:: 15 ::-
A(Ex.PW3/A) at PS Tilak Nagar at the time she arrived there.
30. PW 16, Inspector Om Prakash, has deposed that on 30.11.2009, the investigation of FIR no. 159/09 P.S. Tilak Nagar was marked to him by ACP DIU, West. He had searched for the complainant but she was not available at the given address. He made local inquiry at the spot of incident i.e. 42/1, Krishna Puri, Tilak Nagar. It had already been revealed in the investigation by the previous IO that accused Narender Singh @ Monty had lodged FIR no. 128/09 PS Tilak Nagar against the prosecutrix. He inquired from ASI Lallan Prashad, the IO of FIR No. 128/09, and took the documents pertaining to the same from him which were seized vide seizure memo (Ex PW16/A). He also inquired from the other witnesses of investigation of FIR no. 128/09 i.e. Ct. Julita, Ct Dayaram and HCt. Sudesh. He recorded the statements of ASI Lallan Prashad, Ct. Julita, Ct Dayaram and HCt. Sudesh. He collected the FSL Result. He had met the prosecutrix in Tis Hazari Court when she had appeared along with her counsel in connection with FIR no. 128/09, P.S. Tilak Nagar and she told him that she had already made her statement under section 164 Cr.P.C. and she has nothing more to say. She did not disclose the name of any other witness. He did not recorded her statement under section 161 Cr.P.C. After the completion of the formalities, he had filed the chargesheet.
Police Witnesses of Investigation of FIR No.128 of 2009, under section 381/411/34 IPC of PS Tilak Nagar i.e. Theft Case against the Prosecutrix
31. PW10, Ct. Daya Ram, is the witness of investigation of FIR No.128 of 2009, under section 381/411/34 IPC of PS Tilak Nagar. In this Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 15 of 57 ::-
-:: 16 ::-
case, the prosecutrix was arrested and interrogated in the presence of WHC Sudesh. Prosecutrix did not point out regarding incident of rape with her nor she told the said fact to the doctor at the time of her medical examination. She had not stated the incident of rape to the learned Metropolitan Magistrate, when she was produced before the Court. Thereafter, she told to the Jail Authorities regarding incident of rape with her. Her statement was recorded by SI Omparkash regarding aforesaid fact. He knew the accused, in whose house prosecutrix had committed theft.
32. PW11, W Ct. Julita, is also a witness of investigation in case FIR No.128 of 2009 under section 381/411/34 IPC, PS Tilak Nagar with ASI Lallan Prasad. The prosecutrix who was already arrested by the IO in case FIR No.128 of 2009 was kept under her custody. During investigation prosecutrix was taken to House No. M-28, Shakoor Pur, Delhi. From the said house, the prosecutrix got arrested her other associate Ms. Priyanka wife of Mr. Nayar. She was also interrogated and arrested in the present case. During investigation, the prosecutrix did not disclose to the IO regarding incident of rape with her nor she told this fact to the learned Metropolitan Magistrate. She told the incident of rape with her to the Jail Authorities later on.
33. PW15, WHC Sudesh, has deposed that on 19.06.2009, on the directions of IO ASI Lallan Prashad, she had joined the investigation in case FIR no. 128/09 P.S. Tilak Nagar. They had gone to M-28, Shakur Pur from where the prosecutrix was arrested. She was brought to PS Tilak Nagar and made inquiry from her. She did not tell anything important. On Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 16 of 57 ::-
-:: 17 ::-
the directions of the IO, she had taken the prosecutrix to DDU hospital for her medical examination. Despite her making inquiry from her, she did not tell her anything. Her statement was recorded by the IO. She has admitted that the prosecutrix had not made any allegation of rape with her.
34. PW20, SI Lalan Prasad, is the IO in FIR No. 128/09 u/s 381/411/34 IPC. On 07.06.2009, he went to the house of the complainant Mr Narender Singh situated at Krishna Nagar. He told him that he had kept his articles including the clothes and jewellery in an almirah which were missing. The complainant also told him that he had suspicion that the theft had been committed by the prosecutrix, a maid in the house from a Placement Agency. Then he went to Shakur Pur along with WHC Sudesh and Ct. Daya Ram to the Placement Agency to meet one Mr. Nayar who was the owner of the placement agency. He was told by Ms. Priyanka, w/o Mr. Nayar that he had gone to his native place and would be returning on 20.06.2009. He also met the prosecutrix at Shakur Pur. He returned on 20.06.2009. He made inquiries from the prosecutrix, Ms. Priyanka and Mr. Nayar Hembrum. They disclosed that there was Rs.1,11,000/- kept in an iron box (lohe ka baksa), some jewellery and one watch. He brought the prosecutrix, Ms. Priyanka and Mr. Nayar and the articles which were kept in the iron box to PS Tilak Nagar. The SHO was apprised about the matter and he directed him to seize and seal the articles. The articles were seized vide seizure memo (Ex-PW20/A). The prosecutrix was arrested on 19.06.2009 vide arrest memo (Ex-PW20/B) and she made her disclosure vide disclosure statement (Ex-PW20/C). Ms. Priyanka and Mr. Nayar were arrested vide arrest memos (Ex.-PW20/D and Ex-PW20/E respectively). Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 17 of 57 ::-
-:: 18 ::-
Ms. Priyanka and Mr. Nayar made their disclosure statements vide disclosure memos (Ex-PW20/F & Ex-PW20/G respectively). The prosecutrix was got medically examined at DDU hospital where she was accompanied by W Ct. Sudesh. He had also recorded the statements of the witnesses under section 161 Cr.P.C. All the accused were produced before the Hon'ble Court from where they were remanded to judicial custody. He had taken them to Tihar Jail where they were medically examined by a Doctor. The prosecutrix did not disclose about any rape by Mr. Narender Singh @ Monty to him during investigation nor to the doctor who had medically examined her nor the Ld. MM before whom she was produced. Subsequently Insp. Om Prakash had recorded his statement regarding the investigation conducted by him in FIR No. 128/09, PS Tilak Nagar since the present case i.e. FIR 159/09, PS Tilak Nagar was lodged against Mr. Narender Singh @ Monty by the prosecutrix. After the completion of the investigation, he had filed the charge sheet in FIR 128/09, PS Tilak Nagar.
Official Witnesses
35. PW12, Ms. Shelly Arora, the learned Metropolitan Magistrate, who had recorded the statement of prosecutrix under section 164 Cr.P.C. (Ex. PW5/B) in the entire proceeding under section 164 Cr.P.C (Ex.PW12/A) on the application of Investigating Officer (Ex. PW12/B) and the copy of the statement was provided to him on his application (Ex. PW12/C).
36. PW 13, Mr. Bhupesh Kumar, Ahlmad, had produced the judicial Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 18 of 57 ::-
-:: 19 ::-
file pertaining to FIR No. 128/09 P.S. Tilak Nagar, under sections 381/411IPC titled as State v. Teena @ Alijabeth containing the chargesheet, annexures, ordersheets, applications, process as well as vakalatnama. In the abovesaid FIR, the name of the complainant is Mr. Narender Singh and the name of the accused is that of the prosecutrix and the same pertains to a case of theft. This witness has proved the documents of the said case i.e. FIR (Ex. PW13/A), chargesheet (Ex. PW13/B), disclosure statement of accused Teena (Ex. PW13/C), arrest memo of accused Teena @ Alijabeth (Ex PW13/D) and pointing out memo (Ex. PW13/E). The information was received in the police station on 07.06.2009 at 3:05 pm. The case is still pending and is at the stage of PE.
TESTIMONY OF THE DEFENCE WITNESS
37. It is also equally important to elaborate the evidence of the sole defence witness.
38. DW1, Mr. Trilochan Singh, has deposed that the accused Narender Singh @ Monty is the son in law of his brother in law Mr. Amarjeet Singh. As the accused Narender Singh was blessed with a girl child on 08.05.2009, there was Akhand Path also be conducted on 13.05.2009 and he along with his family reached the house of the Mr. Amarjeet Singh on 12.05.2009 where her daughter was living along with the accused. On 12.05.2009, the other relatives of Mr.Amarjeet Singh were also coming from outside Delhi and from Delhi also. The prosecutrix who was the maid in the house of Mr. Amarjeet Singh was also there and Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 19 of 57 ::-
-:: 20 ::-
doing the household work and she was also making the arrangement of the Path. On 13.05.2009, she served the water and other things during the course of the Path. On 20.05.2009, he came to know that the prosecutrix had committed theft and taken the jewellery and money of wife of the accused.
39. In his cross examination by the Additional Public Prosecutor, he has deposed that on 20.05.2009, he came to know through Mr.Amarjeet Singh regarding the theft committed by the prosecutrix on the same day. He did not know if any police complaint was made by Mr. Amarjeet Singh on the commission of theft by the prosecutrix. He cannot produce any invitation card for the Akhand Path conducted on 13.05.2009 in the house of Mr. Amarjeet Singh as the same was not printed. It was a family gathering and Akhand Path was conducted on 13.05.2009. He can not produce any photograph of that occasion. On 12.05.2009, he along with his wife and one son had reached the house of Mr. Amarjeet Singh and stayed there on that night and returned to their house on 13.05.2009 at about 10-11.00pm. He has denied that they did not visit the house of Mr. Amarjeet Singh on 12.05.2009 or that they did not stay there on the night of 12.05.2009. He has denied that no Akhand Path was scheduled to be held on 13.05.2009 in the house of Mr.Amarjeet Singh and that is why he is not able to produce any invitation card or other document or any photograph of that occasion. On 12.05.2009, there were about 20-25 relatives of Mr.Amarjeet Singh present in his house who had come to attend Akhand Path to be held on 13.05.2009. He has denied that on 12.05.2009 no relative Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 20 of 57 ::-
-:: 21 ::-
of Mr. Amarjeet Singh was present in his house. After about 15-20 days of 20.05.2009, he came to know through Mr.Amarjeet Singh that the prosecutrix had lodged a case against accused Narender Singh @ Monty under section 376 IPC. He has denied that on 12.05.2009 at about 2.00pm at WZ-42, Gali No.1, Krishna Puri, Tilak Nagar accused committed rape upon the prosecutrix.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
40. 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 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, Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 21 of 57 ::-
-:: 22 ::-
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.
41. Under this sphere, I now proceed to test the submissions of both the sides.
IDENTITY OF THE ACCUSED
42. There is no dispute regarding the identity of the accused Mr.Narender Singh @ Monty who has been identified by the prosecutrix. It is also not in dispute that they were known to each other prior to the lodging of the FIR as the prosecutrix was employed through a placement agency as a maid in the house of Mr.Amarjeet Singh, father in law of the accused.
43. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
44. There is no dispute that the prosecutrix was above 18 years of age Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 22 of 57 ::-
-:: 23 ::-
at the time of the incident as she has given her age as 20 years in her complaint, Ex.PW5/A and her statement under section 164 of the Cr.P.C., Ex.PW5/B. In her evidence before the Court on 10.07.2012, she has stated her age to be 22 years which implies that in 2009, she was 19 years old. Although there is no age proof of the prosecutrix but it is not in dispute that she was a major at the time of the alleged offence.
45. Therefore, it is clear that the prosecutrix was a major at the time of the alleged offence.
VIRILITY OF THE ACCUSED
46. The prosecution has failed to get the accused medically examined for his potency test and therefore, it cannot be said with certainty that the accused was virile. Although it is an admitted fact that the accused was blessed with a baby, but the same does not show in any manner that on the date and time of the alleged incident of rape, the accused was potent and virile and capable of performing the sexual act or committing rape.
47. Due to the lapse of the prosecution in failure to get the accused medically examined for testing his potency, it cannot be said that he is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX AND FSL REPORT
48. The MLC of the prosecutrix (Mark X) prepared by Dr.Reepal Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 23 of 57 ::-
-:: 24 ::-
Kumar which is proved by Dr.Amit Mehtani (PW2) shows that there is no mention of sexual or physical assault in the alleged history. This MLC was prepared when the prosecutrix was arrested on allegations of theft and had been mediaclly examined.
49. Then in the MLC of the prosecutrix (PW2) (MLC No.12172 dated 25.06.2009) whereby she was medically examined by Dr.Amit Mehtani (PW12) there is a mention that "Pt brought to casualty for medical examination with alleged H/O sexual assault {not revealed by pt in prev MLC No.11644 dated 19/06/09} as told by self". The hymen is not intact. There is no fresh external injury seen at the time of examination.
50. The FSL report (Ex.PW18/A) prepared by Dr.A.K.Shrivastava (PW18) regarding the examination of the samples and clothes of the prosecutrix also show that semen was not detected on the exhibits 1a, 1b and 2 i.e. the two microslides and one underwear of the prosecutrix.
51. 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 Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 24 of 57 ::-
-:: 25 ::-
the body of the prosecutrix (as is clear from her MLC-Ex.PW2/A,), the probability is that rape is not committed.
52. The absence of semen in the micro slides and the underwear of the prosecutrix indicate that there was no incident of physical relations of the prosecutrix with a man more so the accused.
53. 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 and there would have beentraces of semen in her microslides and underwear.
54. Therefore, it is clear that there is nothing incriminating against the accused in the medical and forensic evidence produced by the prosecution.
DELAY IN FIR
55. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
56. It is claimed by the accused that as the FIR has been lodged on 13.07.2009 at 19:30 hours while the allegations made by the prosecutrix are that she was raped on 12.05.2009. The delay in lodging of the FIR has been not explained by the prosecution.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 25 of 57 ::-
-:: 26 ::-
57. 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 since the prosecutrix was under the fear of the accused and when she left his house, she lodged the FIR immediately.
58. As per the complaint, Ex.PW5/A which is made on 25.06.2009, it is mentioned that she was raped on 12.05.2009 at about 2 pm.
59. The prosecutrix in her MLC (Ex.PW2/A) dated 25.06.2009 in the history has mentioned that she was sexually assaulted on 20.06.2009.
60. The prosecutrix in her statement under section 164 of the Cr.P.C. (Ex.PW5/B) has mentioned that the accused had raped her on 12.05.2009.
61. The prosecutrix in her evidence before the Court has deposed that the accused had raped her on 12.05.2009.
62. The FIR has admittedly been lodged on 13.07.2009 at 19:30 hours.
63. It may be mentioned here that no explanation has been furnished by the prosecution regarding the date of offence being given as 20.06.2009 in the MLC while it is 12.05.2009 in all the other statements of the prosecutrix. There is no explanation given by the prosecution as to why Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 26 of 57 ::-
-:: 27 ::-
in the prosecutrix did not reveal the allegation of rape in her earlier MLC (Mark X dated 19.06.2009), then to the police officials and the IO of FIR No.128/09 (theft case against the prosecutrix), the learned Metropolitan Magistrate before whom the prosecutrix was produced in the theft case and all the other persons with whom she may have come in contact between 12.05.2009 (date of offence) to 25.06.2009 (date of complaint-Ex.PW5/A).
64. If the date of offence is taken as 12.05.2009, then what was the reason of the prosecutrix to wait till 25.06.2009 to make her complaint and then for the police to lodge the FIR on 13.07.2009. This shows that there is a delay of one month and thirteen days made by the prosecutrix in approaching the police and a delay of two months and one day in lodging the FIR.
65. 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.
66. It is not that every delay in registration of the FIR would be Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 27 of 57 ::-
-:: 28 ::-
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.
67. 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.
68. 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 Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011. FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code. State versus Narender Singh @ Monty. -:: Page 28 of 57 ::-
-:: 29 ::-
lodging of first information report does not in any way render prosecution version brittle.
69. 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."
70. 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"
71. 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 Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011. FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code. State versus Narender Singh @ Monty. -:: Page 29 of 57 ::-
-:: 30 ::-
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"
72. I find on perusal of the record that indeed the criminal action was swung into motion on 13.07.2009 while there is delay of two months. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged incident of 12.05.2009, she went to her work and was meeting others. Even then, she preferred not to make any complaint of rape against the accused. No explanation is coming forth from the prosecution as to why she did not tell her employer' family about the rape, her family, friends and others with whom she was in contact.
73. There is no explanation given by the prosecution as to why in the prosecutrix did not reveal the allegation of rape in her earlier MLC (Mark X dated 19.06.2009), then to the police officials and the IO of FIR No.128/09 (theft case against the prosecutrix), the learned Metropolitan Magistrate before whom the prosecutrix was produced in the theft case and all the other persons with whom she may have come in contact between 12.05.2009 (date of offence) to 25.06.2009 (date of complaint-Ex.PW5/A).
74. It is also borne out of the material on record especially the evidence of PW5-the prosecutrix that the prosecutrix was in touch with Ms.Priyanka and Mr.Nayyar Hembrum, the owners of the placement Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 30 of 57 ::-
-:: 31 ::-
agency from where she was employed in the house of the father in law of the accused. However, she has even not disclosed about the alleged rape to them.
75. It is also an admitted fact that the prosecutrix did not report to the police immediately and even on leaving the service of the father in law of the accused. She has claimed that she was under the fear of the accused and of the police officials. This is also contrary to the record as she had been produced before the Court as well as the doctor where she could have easily disclosed about the incident.
76. The prosecutrix has mentioned about her rape by the accused for the first time on 25.06.2009 when she was in judicial custody in the theft case which indicates that there may have been some manipulation by the other inmates of the jail in whose consultation, she had lodged this case on false facts.
77. Even in her bail application in the theft case before the Court of the learned Metropolitan Magistrate, she did not mention about the alleged rape by the accused. She has admitted in her cross examination that she had met her lawyer but she does not have any reason to say why she did not state about the rape to her lawyer.
78. PWs 10, 11, 15 and 20, who were associated in the investigation in the theft case against the prosecutrix i.e. FIR No.128/09 PS Tilak Nagar, have also deposed that that the prosecutrix had not stated about her rape by Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 31 of 57 ::-
-:: 32 ::-
the accused at any point of time.
79. The possibility cannot be completely ruled out that as a counter blast to the theft case against her by the accused and his father in law, the prosecutrix had deliberation and discussion with Ms.Priyanka and Mr.Nayar Hembrum, owners of the Placement Agency, and then the present case was lodged out of vengeance.
80. The prosecutrix was with Ms.Priyanka and Mr.Nayar Hembrum, owners of the Placement Agency, when she was arrested in the theft case and recovery was also effected from her and she could have easily manipulated about the incident in this case, if she wanted to. It also cannot be ignored that the prosecution has neither furnished any justified reason for the delay nor produced nor examined any witness to substantiate the stand of the prosecutrix in respect of the delay of two months in lodging the case against the accused. The prosecutrix has also not disclosed as to why she preferred to continue to work in the house of the accused, if she had been raped there.
81. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
82. Therefore, it can be said that the FIR was lodged after a delay of about two months which is fatal to the prosecution story. She had approached the police on 25.06.2009 i.e. with a delay of one month and thirteen days of the alleged incident of 12.05.2009. The delay has Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 32 of 57 ::-
-:: 33 ::-
not been satisfactorily explained.
MENS REA / MOTIVE
83. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though 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 circumstantial 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.
84. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial 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 un-nameable 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.
85. 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 Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 33 of 57 ::-
-:: 34 ::-
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. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. 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.
86. In the present case, a story has been projected that the accused raped the prosecutrix on 12.05.2009 and this version appears to be untrue as there is no reason why he would do so.
87. There does not appear to be any criminal intention and mens rea on the part of the accused.
PUBLIC WITNESS NOT SUPPORTING THE PROSECUTION
88. The public witness, PW7, Mr. Amarjeet Singh, is the father in law of accused. He has deposed in favour of the accused and not infavour of the prosecution. He has not been cross examined by the prosecution.He Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 34 of 57 ::-
-:: 35 ::-
has deposed against the prosecutrix that on 20.05.2009, she took away jewellery articles of her daughter and ran away from the house. He reported the matter to the police and FIR was also lodged in this regard. On 19.06.2009, the prosecutrix was arrested and some cash, one gold kada, one watch, one chain and one gold ring were recovered at the instance of prosecutrix. The allegations of rape made by the prosecutrix are false since there were relatives in the house and other members present in the house this was not possible. The recoveries made at the instance of prosecutrix from the house of owner of Raj Laxmi Placement Agency.
PUBLIC WITNESSES NEITHER CITED NOR EXAMINED
89. The prosecutrix has deposed in her cross examination that she had told one of her Didi namely Ms.Marium about her rape by the accused. Ms.Marium could have been a very material witness but she has neither been cited as witnesses nor produced nor examined by the prosecution. Her evidence could have facilitated the Court in adjudicating the matter.
OFFENCE OF RAPE
90. It is necessary to understand the relevant provision before considering whether or not the offence is proved to have been committed by the accused.
91. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 35 of 57 ::-
-:: 36 ::-
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
92. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW5, the prosecutrix with her other statements.
93. The prosecutrix in her complaint (Ex.PW5/A), her statement under section 164 of the Cr.P.C. (Ex.PW5/B) and her evidence before the Court has deposed that she was raped by the accused on 12.05.2009.
94. However, it can be seen that there are several contradictions and inconsistencies in the complaint (Ex.PW5/A), her statement under section 164 of the Cr.P.C. (Ex.PW5/B) and the evidence of the prosecutrix before the Court which make her evidence unreliable. These are very material and glaring contradictions and overwhelming inconsistencies which strike at the root of the prosecution case and are fatal blemishes which can not be ignored. No explanation is coming forth from the prosecution regarding the Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 36 of 57 ::-
-:: 37 ::-
same and they make the evidence of the prosecutrix unreliable, untrustworthy and unbelievable. The prosecution has failed to justify and clarify the contradictions due to which the version of the prosecution becomes doubtful that such an offence was ever committed. It appears that the prosecutrix is changing her stand and giving contradictory versions which makes her evidence becomes unreliable.
95. First and foremost contradiction is in respect of the date on which the prosecutrix has been allegedly raped by the accused. As per the complaint, Ex.PW5/A which is made on 25.06.2009, it is mentioned that she was raped on 12.05.2009 at about 2 pm. The prosecutrix in her MLC (Ex.PW2/A) dated 25.06.2009 in the history has mentioned that she was sexually assaulted on 20.06.2009. The prosecutrix in her statement under section 164 of the Cr.P.C. (Ex.PW5/B) has mentioned that the accused had raped her on 12.05.2009. The prosecutrix in her evidence before the Court has deposed that the accused had raped her on 12.05.2009.
96. It may be mentioned here that no explanation has been furnished by the prosecution and the prosecurix regarding the contradiction in the date of offence as it is given as 20.06.2009 in the MLC while it is 12.05.2009 in all the other statements of the prosecutrix.
97. Then there is no explanation given by the prosecution as to why in the prosecutrix did not reveal the allegation of rape in her earlier MLC (Mark X dated 19.06.2009), then to the police officials and the IO of FIR No.128/09 (theft case against the prosecutrix), the learned Metropolitan Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 37 of 57 ::-
-:: 38 ::-
Magistrate before whom the prosecutrix was produced in the theft case, her bail application in the theft case and all the other persons with whom she may have come in contact between 12.05.2009 (date of offence) to 25.06.2009 (date of complaint-Ex.PW5/A).
98. No explanation is coming forth from the prosecution as to why she did not tell her employer' family about the rape, her family, friends and others with whom she was in contact. The prosecutrix was in touch with Ms.Priyanka and Mr.Nayyar Hembrum, the owners of the placement agency from where she was employed in the house of the father in law of the accused. However, she has even not disclosed about the alleged rape to them and no explanation is coming forth regarding the same.
99. It is admitted by the prosecutrix that there was a apth ceremony performed on the birth of the child and there was gathering of the neighbours and guests. PW7 has deposed that a baby girl was born on 08.05.2009 and the Sukhmani Sahib Paath was on 13.05.2009. If the rape was on 12.05.2009, then there was no reason for the prosecutrix to remain in the house of PW7 and participate in the celebrations.
100. As deposed by PW5, she continued to work in the house of Mr.Amarjeet after about one month of the rape. This does not appear to be probable and plausible as had she been raped, she would have immediately walked out and approached the police.
101. The prosecutrix has deposed that on 12.05.2009, when the Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 38 of 57 ::-
-:: 39 ::-
daughter of PW7, who is the wife of the accused, was admitted in the hospital, the accused had raped her. This story is falsified by the evidence of PW7 who has deposed that his daughter was admitted in the hospital on 05.05.2009 and a baby girl was delivered on 08.05.2009. His daughter was discharged from hospital on 10.05.2009. This implies that she was not in the hospital on 12.05.2009 and the deposition of the prosecutrix is false.
102. The story told by the prosecutrix of her rape on 12.05.2009 is also falsified by the evidence of DW1 who has deposed that as the accused Narender Singh was blessed with a girl child on 08.05.2009, there was Akhand Path also be conducted on 13.05.2009. He along with his family reached the house of the Mr. Amarjeet Singh on 12.05.2009 where her daughter was living along with the accused. On 12.05.2009, the other relatives of Mr.Amarjeet Singh were also coming from outside Delhi and from Delhi also. The prosecutrix who was the maid in the house of Mr. Amarjeet Singh was also there and doing the household work and she was also making the arrangement of the Path. On 13.05.2009, she served the water and other things during the course of the Path.
103. Further, the prosecutrix was not even aware of the gender of the child as she has deposed in her cross examination that a male child was born while it is clear from the evidence of Pw7 and DW1 that it was a female child.
104. In her evidence, the prosecutrix has deposed that the accused tied both her hands with her chunni, affixed a brown colour tape on her Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 39 of 57 ::-
-:: 40 ::-
mouth and then raped her. She had shouted loudly and had screamed also but nobody listened her. She had not told the incident to anybody at that time due to fear of accused. This version also does not appear to be true because if brown tape was affixed on her moth, then she could not have shouted for help, as deposed by her.
105. In her complaint Ex.PW5/A, the prosecutrix has stated that the accused had beaten her. In her statement under section 164 of the Cr.P.C., the prosecutrix has stated that Ms.Binder, wife of employer, had beaten her on her chest (chhati ko noch diya) and employer had beaten her with iron rod (lohe ke dande) on her buttocks/hips. In her evidence, she has deposed that she was beaten up daily by accused and other family members with danda (stick) on her buttocks and legs. These contradictions only indicate that she is making improvements to implicate as many family members as she can.
106. Regarding the fear of the accused, it may be observed that when all the family members were available, there was no reason for her to fear the accused. Even when she was arrested in the theft case, she was away from the fear and control of the accused. This story of the prosecutrix being under the fear of the accused does not appear to be probable.
107. She has later come up with a new story that as she was under the fear of the police, she did not tell the doctor about the rape. Suddenly from being in fear of the accused, she has come under the fear of the police.
When she is with the doctor, before the learned Metropolitan Magistrate, Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 40 of 57 ::-
-:: 41 ::-
when she is away from the police, then also she fails to disclose about the rape which makes her version unbelievable.
108. It is also clear from the evidence of the police witnesses of investigation of FIR No.128/09 under sections 381/411/34 IPC PS Tilak Nagar that the prosecutrix was arrested along with the owners of the Placement Agency in the theft case lodged by the accused Narender Singh @ Monty and his family and recovery of cash and jewellery has been effected from the prosecutrix. The seizure memos, disclosure statements, arrest memos, chargesheet have been produced by PW13 and proved by PW13 and the PWs ASI Lallan Prashad, Ct. Julita, Ct Dayaram and HCt.
Sudesh.
109. PW20 has deposed that he had taken the prosecutrix and others (accused in the theft case) to Tihar Jail where they were medically examined by a Doctor. The prosecutrix did not disclose about any rape by Mr. Narender Singh @ Monty to him during investigation nor to the doctor who had medically examined her nor the Ld. MM before whom she was produced.
110. The prosecutrix appears to have crossed all limits of telling lies when she has deposed in her cross examination that "I did not see the Magistrate when I was produced in court in theft case." It is not believable that when she was produced in the Court of the learned Metropolitan Magistrate, she did not see him.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 41 of 57 ::-
-:: 42 ::-
111. PW5, the prosecutrix, has deposed that she had not refused to give her statement to the Jail Authorities twice. However, this part of the deposition also appears to be false considering the evidence of PW3 ASI Sarla who has deposed that since prosecutrix was in Tihar jail, she went to Tihar Jail for recording the statement under section 161 Cr.P.C, but the prosecutrix refused to give any statement to her and stated that she would give the statement in Court only.
112. PW16, Insp.Om Prakash, has also deposed that he had met the prosecutrix in Tis Hazari Court when she had appeared along with her counsel in connection with FIR no. 128/09, P.S. Tilak Nagar and she told him that she had already made her statement under section 164 Cr.P.C. and she has nothing more to say.
113. PW3 has also deposed that on local enquiry from the neighbouring houses, none disclosed that they knew about the rape.
114. The prosecutrix has failed to disclose about her alleged rape by the accused to the police witnesses of investigation in FIR No.128/09 PS Tilak Nagar, as admitted by them.
115. Also, it cannot be ignored that during the investigation and as per the status report of the Investigation Officer, nothing was surfaced on the record as alleged by the prosecutrix in her complaint, Ex.PW5/A, against the accused and even the accused was kept in column number 2 of the chargesheet.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 42 of 57 ::-
-:: 43 ::-
116. It appears from the material on record that the prosecutrix was arrested in the theft case on 19.06.2009 on the complaint dated 07.06.2009 of accused Mr.Narender Singh @ Monty and the stolen articles i.e. cash, jewellery etc have been recovered from the prosecutrix and her co-accused (as is clear from the file produced by PW13 and the documents proved by him) and in order to settle scores with him, she came up with the story of her being raped on 12.05.2009 (as mentioned in her complaint dated 25.06.2009, Ex.PW5/A).
117. It is also clear that the placement agency owners were with the prosecutrix and after consultation, deliberation and discussion, this case has been lodged in a planned manner perhaps to extort money or to wriggle out of the theft case against the prosecutrix.
118. 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 present rape case was lodged probably to coerce the accused to settle the theft case or for extortion.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 43 of 57 ::-
-:: 44 ::-
119. 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 that she has not been raped.
120. The prosecutrix has deposed that on her questioning, he threatened that he shall kill her. However, the effect of the alleged threat, has not been 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 the house for a very long time i.e. about a month after the alleged rape and there was no reason why she could not have disclosed about the alleged threat to the neighbours, family, police, doctors and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that nothing wrong has happened to her.
121. In the light of the aforesaid nature of deposition of the prosecutrix, PW5, who happen 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 Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011. FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code. State versus Narender Singh @ Monty. -:: Page 44 of 57 ::-
-:: 45 ::-
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."
121. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
122. 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.
123. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, 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 knew the accused prior to the incident. If evidence of prosecutrix is read and 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 Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 45 of 57 ::-
-:: 46 ::-
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).
124. 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).
125. It is a case of heinous crime of rape, 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 the 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 and not merely dwell upon the shortcoming of defence.
126. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness. Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 46 of 57 ::-
-:: 47 ::-
127. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (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).
128. Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 376 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 prosecutrix was forced by the accused.
129. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011. FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code. State versus Narender Singh @ Monty. -:: Page 47 of 57 ::-
-:: 48 ::-
possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
130. This brings me to the final question as to whether it was she was raped and threatened by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been raped by the accused but there are several contradictions in her statements which remain unexplained and indicate that no such offence was ever committed by the accused.
131. 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.
132. In the judgment reported as Suraj Mal v. The State (Delhi 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.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 48 of 57 ::-
-:: 49 ::-
133. 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.
134. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of rape and the accused merits to be acquitted for the offence under section 376 of the IPC.
DEFENCE OF THE ACCUSED
135. 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. The prosecution cannot take advantage of the weakness of the defence of the accused.
136. 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 by the prosecutrix as he and my family had lodged a theft against the prosecutrix in which the articles were recovered from her possession and the possession of the co-accused.
137. Suggestions to the same effect have been put to the prosecutrix which of course have been denied by her. However, as mentioned above, the evidence of the prosecutrix is neither reliable nor believable nor trustworthy.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 49 of 57 ::-
-:: 50 ::-
138. On the other hand, the evidence of the defence witnesses is consistent and corroborative that the present case has been filed by the prosecutrix only for extortion. The theft case was lodged much prior to the present case and the reason for the same appears to be only to settle the scores with the accused and to take revenge from him for lodging the theft case against the prosecutrix.
139. Therefore, it is clear that the version of the prosecutrix and the prosecution cannot be relied upon, as discussed above, and the version of the defence is believable and worthy of credence.
INVESTIGATION
140. The investigation conducted in the present case has been deposed by PWs 1, 3, 4, 6, 14 and 16. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
141. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case. However, the FIR report has not been proved. The accused has also not been medically examined regarding his potency and virility.
142. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 50 of 57 ::-
-:: 51 ::-
the prosecutrix, then the investigation becomes less important.
143. 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.
144. Therefore, the investigation is not being taken into consideration although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
145. Since the prosecutrix as PW5 is neither reliable nor believable as there are overwhelming contradictions in her different statements, 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.
146. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape and threaten by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 51 of 57 ::-
-:: 52 ::-
make it highly improbable that such an incident ever took place.
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 prerequisites before conviction should be recorded, which are as under:
1. 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;
2. 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;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. 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 is evident that the identity of the accused Mr.Narender Singh @ Monty stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor.
149. It is also clear that there is an inordinate unexplained and unjustified delay in making the complaint of rape and in lodging the FIR. It also stands established that the accused had not raped the prosecutrix. Even the FIR has not been proved. Also the accused has not been medically Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 52 of 57 ::-
-:: 53 ::-
examined to prove his potency and virility. There is no medical or forensic or circumstantial evidence to show that such an offence has ever been committed. 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 an incident ever took place.
150. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped by the accused.
151. 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.
152. Accordingly, Mr.Narender Singh @ Monty, the accused, is hereby acquitted of the charge.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
153. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
SOME OBSERVATIONS REGARDING THE PLACEMENT AGENCIES AND RAPE CASES
154. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 53 of 57 ::-
-:: 54 ::-
convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and not worthy of credence, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
155. It would be also pertinent to observe here that a recent trend is surfacing where either a domestic worker is being underpaid or where she has been detained by the employer for an unusually long period or where her work is unsatisfactory or where she herself has committed an offence like theft in the house of the employer (as in the present case) that such a domestic worker has unfortunately resorted to invoke the laws relating to sexual abuse for achieving their goal, may be due to ill advice, as is clear in the present case.
156. Incidents of gross misuse and abuse of the laws relating to rape and sexual abuse and exploitation of uneducated, ignorant and uninformed domestic workers by unscrupulous persons and placement agencies etc. for their personal gains or vendetta, is a matter of serious concern.
157. A spurt of cases are being registered on the false allegations made by domestic workers, migrant as well as local, regarding rape and physical abuse by the employers. They are young girls from backward tribal areas who are exploited by those running Placement Agencies. These so called owners of the Placement Agencies and local musclemen use these Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 54 of 57 ::-
-:: 55 ::-
domestic workers as pawns to settle their personal scores with the professional rivals. This trend requires to be nipped in the bud itself and the precious time of the government agencies i.e. the police, the prosecution, the judiciary etc. should not be wasted.
158. Under these circumstances, the task of both the Investigating Agency and the Court becomes onerous so as to ensure that on one hand the existing penal provisions are not abused so as to implicate innocent persons whereas on the other hand, to ensure that no guilty is left scot free.
159. This case appears to be a living example of a domestic worker, a maid from placement agency, raising false allegations of rape only to achieve her selfish ends of extorting money and out of vengeance as a theft case has been lodged against her by the accused, son-in law of her employer.
160. This case is just one of the many cases in this Court where either the prosecutrix who is a maid from a placement agency has turned hostile or her evidence is not reliable due to which an innocent man has to undergo the rigours of investigation and trial before he is declared innocent holding that the allegations against him are false.
161. The conscience of this Court tells that this is a crime which is required to be addressed differently especially regarding the role of the Placement Agencies and their maids in doing extortion of innocent employers.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 55 of 57 ::-
-:: 56 ::-
162. Recently on 05.06.2013 while acquitting a senior citizen of 82 years in a similar case (Sessions Case Number : 80 of 2011; Unique Case ID Number : 02401R0551302011; FIR No. 166/11, Police Station Moti Nagar, under sections 376 and 506 of the Indian Penal Code titled as State versus Krishan Lal Chawla) this Court had made some observations which are being reiterated again in this judgment. There are no laws, policies or rules to regulate the Placement Agencies which supply maids and servants for working in houses. Considering the crying need of the day, it is required that some regulatory law or policy is made by the Government and Police so that there can be check on the Placement Agencies and it is made compulsory that the police verification of the maids and servants who are to be employed in the private houses is done before they take up employment. In my considered view, it is time that we as a Civil Society stand up not to only protect, shelter and rehabilitate a victim of rape but also to protect and shelter an accused against whom false allegations of rape have been levelled.
163. Copy of this order is directed to be sent to the respective Secretary, Ministry of Law & Justice, Labour and Home of the Government of India as well as Government of NCT of Delhi (through proper channel) Chairpersons, National Commission for Women, Delhi Commission for Women, Commissioner of Police and Additional Commissioner of Police (West) for information purposes.
Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 56 of 57 ::-
-:: 57 ::-
164. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
165. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
166. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 07th day of June, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 14 of 2013.
Unique Case ID Number : 02401R0239642011.
FIR No. 159/09 , Police Station Tilak Nagar, Under sections 376 of the Indian Penal Code.
State versus Narender Singh @ Monty. -:: Page 57 of 57 ::-