Delhi District Court
State vs Raj Singh Dalal //Fir No.1042/04 on 24 November, 2010
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 199/2008
FIR No. 1042/2004
PS : SULTAN PURI
U/s. 342/376/506 IPC
STATE
VERSUS
RAJ SINGH DALAL @ RAJBIR SINGH
S/O LATE SH. KHAJAN SINGH
R/O. H. NO. 146, SULTAN PUR MAJRA EXTN.
HARIJAN BASTI, DELHI 110 041
Date of Institution : 10.05.2005
Date of receipt of case in this court : 08.12.2008
Arguments heard On : 11.11.2011
Order Announced On : 24.11.2010
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI B. S. RANA, COUNSEL FOR ACCUSED.
STATE VS RAJ SINGH DALAL //FIR NO.1042/04
PSSULTAN PURI //U/S. 342 376 506 IPC.
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JUDGMENT
1. The name of the prosecutrix / victim in this judgment is not mentioned as per decision of Hon'ble Supreme Court in the cases of State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 CLJ 2913.
2. The facts as projected in the charge sheet are that on 03.09.04 prosecutrix P w/o Late Sh. Jagdev Singh in the police station made statement to the police that she is r/o H. No. 114, Gali No. 4. D Block, Opp. Shivam Public School, Prem Nagar 3rd, Sultan Puri, Delhi and her husband had expired one year prior to 03.09.04. She further stated to the police that accused Raj Singh Dalal used to visit her house and also borrow money from her husband. After the death of her husband when she demanded back the money given by her late husband to accused, he called her to his office on the pretext of returning money. About 1½ month prior to 03.09.04 when she reached the office of accused at main road Mubarakpur Road, accused made her sit in his office STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:3: and closed the shutter of his office and when she tried to raise her noise he pushed her and committed rape upon her. He also threatened her not to disclose this fact to any body. Thereafter, 15 days prior to this incident, accused Raj Singh Dalal came to her house and on finding her alone, again committed rape upon her against her will and consent. She could not disclose about this act of accused to anybody due to his fear. She has further stated that she gathered some confidence today i.e. 03.09.04 and made the statement before the police.
3. W/SI Sanjita was handed over copy of DD no. 75-B and she along with Lady Ct. Anita and Ct. Nasib took the prosecutrix P to SGM hospital for her medical examination. After her medical examination doctor handed over some sealed exhibits which were taken into possession by the investigation officer. Thereafter FIR of this case was registered u/s 342/376/506 IPC and accused was arrested in this case. Investigation Officer prepared site plan on the instructions of prosecutrix and recorded statements of the STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:4: witnesses. Exhibits collected by the police were sent to FSL for analysis. After completion of investigation charge sheet was filed in the court for offences u/s 342/376/506 IPC.
4. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
5. Vide order dt. 30.09.2005 Ld. ASJ, Delhi framed charge u/s 376/506 IPC against the accused to which he pleaded not guilty and claimed trial.
6. Prosecution in support of its case examined PW1 prosecutrix P, who is the star witness of prosecution and PW4 Kumar Shashi. In order to prove its case, prosecution also examined PW2 W/Ct. Anita, PW3 HC Kali Charan, PW 5 HC Mahabir Singh, PW7 Ct Nasib Singh, PW10 HC Mahender, PW11 Insp. Sanjita and PW12 Ct. Harmesh Singh. Prosecution has also examined PW6 Dr. Garima Trivedi, PW8 Dr. Sangeeta Kumari and PW9 Dr. Baljeet Singh.
STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
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7. As per statement of Ld. APP for State Sh. P.K. Verma, prosecution evidence was closed on 04.09.10.
8. Statement of the accused was recorded u/s 313 CrPC and accused wished not to examine any defence witness.
9. I have heard Sh. P. K. Verma, Ld. APP for the State and Sh. B. S. Rana, Ld. Counsel for the accused.
10. The star witness of prosecution is admittedly Prosecutrix P and this witness while deposing as PW1 has stated that her late husband had sold a house for a sum of Rs. 2.75 lacs and accused who was the friend of her late husband took loan of Rs. 2.75 lacs from her husband and returned Rs. 1,15,000/- only. She has further stated that once she had gone to river Yamuna to take a bath on the day of Purnima and when she returned back she found her husband dead and after the death of her husband when she sent her son to the office of accused for repayment of loan amount, STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:6: accused called her to get the same collected. She has then stated that when she reached the office of accused, two more persons namely Rishi and Krishan were present there. She further stated that accused threw her on the ground and volume of deck was increased by another person and thereafter accused committed rape upon her and while committing rape with her the accused kept on threatening her that he would kill her children if she disclose anything about the incident to anyone. She has further testified that the accused again committed rape upon her after 15 days of the committal of rape at her house when her children had gone to school and in the meantime when her daughter came to house, the accused threatened her daughter too. PW1 has then deposed that she went to the police station but her report was not registered and it was only after reaching the DCP office that the FIR was recorded on 04.09.04. PW1 Prosecutrix P has further testified that she was medically examined at the hospital by the doctor and her undergarments were seized and site plan was prepared by Investigation Officer on her instructions.
STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
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11. In the cross examination by counsel for accused, Prosecutrix P as PW1 has stated that she is not aware of the date, month and year when her husband had sold the plot and further stated that after selling the house her husband purchased a plot of land and raised construction on the said plot. She has denied the suggestion of counsel for accused that accused had supplied the building material for raising construction on the plot of her husband. Prosecutrix P has denied that the signatures on document mark PW-1/DA at point X are not of her husband. She has given identical reply regarding document mark PW-1/DB. She has also denied the suggestion of counsel for accused that accused had supplied building material for Rs. 3,73,050/- to her husband or that her husband had paid only a sum of Rs. 2,75,000/- only to the accused or that a sum of Rs. 98,050/- was outstanding towards her husband from accused or the accused was again and again demanding the said sum of Rs. 98050/- or that when accused demanded the said amount from her, she threatened the accused to implicate him in a false case. She has further stated that she does not know if accused had STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:8: given a complaint to SHO PS Sultanpuri regarding the threat given by her to accused. Prosecutrix P has further denied the suggestion of counsel for accused that the accused has been falsely implicated in this case as her husband had to pay the amount of Rs. 98050/- on account of building material supplied by the accused and the said amount was not paid to the accused or that accused never committed any rape upon her of that she has deposed falsely. In her cross examination by counsel for the accused prosecutrix P has stated that she does not have any document to show the original signatures of her husband.
12. PW2 W/Ct. Anita has deposed that on 03.09.06 on receipt of DD no. 75-B she along with IO and complainant i.e. Prosecutrix P went to SGM hospital where prosecutrix P was medically examined and after medical examination three pulandas were handed over by doctors to IO. She has then deposed that she along with IO and Ct. Nasib went to the office of accused but he was not available there. During cross examination she has denied the suggestion of counsel for STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:9: accused that statement of complainant were not recorded in her presence or that she had not gone to the office of accused or to the spot or that she has deposed falsely.
13. PW3 HC Kali Charan who was posted as duty officer at PS Sultan Puri on 04.09.04 has deposed that on that day at about 1.30 pm Ct. Nasib Singh produced rukka and on the basis of same FIR of this case was registered copy of which is Ex. PW3/A. PW4 Kumar Shashi who is the daughter of prosecutrix P has deposed that on the day of incident, month and year she does not remember, she was studying in class 5th. She has stated that when she came back home from school she her noise of her mother from first floor and when she went upstairs and tried to open the door but the same was bolted from inside. She has further deposed accused also threatened her if she disclosed this fact to any one and thereafter she ran away from there. She has also deposed that after she went upstairs she found her mother crying and her clothes were torn. During cross examination PW4 has denied the suggestion of counsel for STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:10: accused that she had not seen the accused at her house or that she has been tutored or that nothing happened in her presence.
14. PW5 HC Mahabir Singh has deposed that he joined investigation of this case on 18.09.04 and accused was arrested in his presence vide memo Ex. PW5/A. He has further deposed that on the instructions of investigation officer he took accused for medical examination to SGM hospital. Doctor handed over one sealed pullanda to investigation officer after medical examination of accused. PW6 Dr. Garima Trivedi has identified the handwriting and signatures of Dr. Mahinder and Dr. Shalu who prepared the MLC Ex. PW6/A of prosecutrix P. She has denied the suggestion of counsel for accused that she cannot identify the signatures of Dr. Shalu and Dr. Mahinder on MLC Ex.PW6/A.
15. PW7 Ct. Nasib Singh has deposed that on 03.09.04 while being posted at PS Sultan Puri, he along with SI Sangeeta and L/Ct. Anita took prosecutrix P to SGM Hospital and after her medical examination he took rukka to STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:11: PS and got FIR of this case registered. In his cross examination by counsel for accused he has denied the suggestion that he did not go to SGM Hospital with investigation officer or that SI Sangeeta did not record statement of prosecutrix P or that all the proceedings were conducted while sitting in PS or that he along with SI Sangeeta did not go to the office and residence of accused. PW8 Dr. Sangeeta Kumari has identified the handwriting and signatures of Dr. Anju Garg at point A on Ex. PW8/A i.e. MLC of patient. PW9 Dr. Baljeet Singh has proved his opinion on MLC Ex.PW8/A at point X. PW10 HC Mahender was working as MHC (M) at PS Sultan Puri on 04.09.04. He has proved entries Ex.PW10/A, Ex.PW10/B, Ex.PW10/C and Ex.PW10/D.
16. PW11 Insp. Sangeeta has deposed that on 03.09.04 duty officer of PS Sultan Puri handed over DD No. 75-B, attested copy of which is Ex. PW11/A to her and she along with her staff and prosecutrix P reached SGM Hospital and got the prosecutrix medically examined. Thereafter doctor handed over MLC of prosecutrix and also handed over STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:12: two sealed parcels with one sample seal which were seized vide memo Ex. PW1/B. She has then stated that she prepared rukka and and handed over the same to Ct. Nasib who got the FIR, copy of which is of this case registered. She also prepared the site plan Ex. PW11/C and Ex. PW11/D at the instance of prosecutrix and thereafter she went in search of accused at his shop. She has further stated that on 18.09.04 accused was formally arrested vide arrest memo Ex. PW5/A and personal search of accused was taken vide memo Ex. PW5/B. Investigation Officer Insp. Sanjeeta has deposed that on 27.10.04 exhibits were sent to CFSL, Hyderabad and she filed the CFSL result on 22.02.06 vide application Ex. PW11/G.
17. In her cross examination by the counsel for accused, the investigation officer has denied his suggestion that she did not record the statement of witnesses or fabricated the same or that she fabricated the statement of prosecutrix P Ex. PW1/A and obtained her signatures or that prosecutrix never pointed out any place and she prepared the site plan while sitting at the PS or that she has filed the STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:13: challan on the basis of fabricated evidence or that during investigation it came to her knowledge that the prosecutrix was under some debt which had to be paid to the accused.
18. PW12 Ct. Harmesh Singh has deposed that on 27.10.04 he collected sealed parcels pertaining to this case from MHC(M) with FSL form for depositing the same at CFSL, Hyderabad and deposited the at CFSL, Hyderabad.
19. Now the oral testimony of prosecutrix and the medical evidence as discussed herein above has to be discussed herein above has to be discussed in view of the law laid down by Apex Court.
20. In the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra & Another (2007) 1 Supreme Court Cases (Cri) 161, it was held that it is true that in a rape case the accused could be convinced on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:14: the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.
21. In the case of Tameezudin @ Tammu Vs. State of (NCT) of Delhi 2009 (4) JCC 2809 it was held that it is true that in the case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal manner.
22. The Apex Court in the case of Ramdas & Ors Vs. State of Maharashtra (2007) 2 SCC 170 Vimal Suresh Kamble Vs. Chaluverapinake Apal S. P. & Anr. (2003) 3 SCC 175 and Suresh N. Bhusare and Ors. Vs. State of STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:15: Maharashtra (1999) 1 SCC 220 when faced with the situation where the only piece of evidence available was the inconsistent sole testimony of the prosecutrix, thought it prudent to give the benefit of doubt to the accused. In a recent judgment of Apex Court in Abbas Ahmed Choudhary Vs. State of Assam (MANU/SC/1966/2009) it was held that "we are conscious of the fact that in a manner of rape, the statement of prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
23. In the case of Ram Niwas Vs. State of Karnataka 1994 SCC (Cri) 503, the Apex Court faced with a somewhat similar situation where also the evidence rested on the testimony of prosecutrix along with medical evidence, the court declined to place reliance on it. It was held that "the case mainly rested on the evidence of prosecutrix.."
STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
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24. The testimony of prosecutrix P PW1 is appreciated in the light of principles of law discussed herein above. The present case was registered on the basis of statement of prosecutrix. In her statement Ex. PW1/A she alleged that during the lifetime of her husband accused used to visit their house and used to take friendly loan. After the death of her husband, accused promised to repay the loan and called her at his office about 1½ months prior to lodging of the complaint with the police. Accused at his office at main road Mubarakpur road committed rape and also extended threat to her. Thereafter another incident has been narrated by the prosecutrix that 15 days prior to lodging of complaint Ex. PW1/A when she was alone, accused came to her house and again committed rape upon her. When prosecutrix P appeared as PW1 in the witness box she introduced a new story about sale-purchase of a house for Rs. 2.75 lacs and she specified the loan amount given by her husband to the accused as Rs. 2.75 lacs. She admitted that accused returned Rs. 115000/- to her husband. She also cast suspicion on the death of her husband. She then introduced new facts that STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:17: she sent her son Sanjay for return of the loan amount but she has not specified any month or time period. She again sent her son after 5/6 months of earlier visit. Thereafter she went to the office of accused. Now she named two other persons Rishi and Krishan who were also present at the time of commission of rape. Now a deck also came into picture which was played at high volume by the accused. These facts are contradictory to her complaint Ex. PW1/A which she lodged with the police.
25. PW1 Prosecutrix P further deposed that after 15 days prior to lodging of complaint Ex. PW1/A accused came to her house, when she was alone and he again committed rape upon her but in the meanwhile her daughter Shashi knocked the door and after opening the door accused threatened her also. She went to the office of DCP and then her report was lodged on 04.09.04 as earlier police did not lodge her report. This fact introduced her daughter who also appeared in witness box as PW4. However this fact is also contradictory to her statement Ex. PW1/A. STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
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26. In the cross examination she failed to specify the date, month and year when her husband sold the house. She admitted that thereafter her husband purchased a vacant plot and raised construction. However she denied the stamp paper signed by her husband mark Ex. PW-1/DA. Similarly she also denied mark Ex. PW-1/DB, a document alleged to be bearing signatures of her husband. She denied that accused supplied building material to her husband to the tune of Rs. 3,73,050/- and her husband repaid Rs. 2,75,000/- and there is outstanding payment of Rs. 98,050/-. On 19.309.07 when PW1 prosecutrix P again appeared for cross examination, she failed to produce any original document bearing signatures of her late husband. Only a photocopy was produced by her in the court. She was further confronted with proceedings u/s 107/105 CrPC vide DD no. 10 dt. 27.08.04. She was put specifically about her statement Ex. PW1/DD. She was confronted with statement Ex. PW1/A regarding the facts of taking loan by accused of Rs. 2.75 lacs. Similarly in respect of presence of two persons Rishi and STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:19: Krishan and playing of deck (stereo), confrontation was established on record that prosecutrix P has introduced an entire new case when she appeared in witness box, which is totally contradictory to her statement Ex. PW1/A given to the police.
27. Hence in these special circumstances of the present case, the testimony of the prosecutrix is highly improbable and not believable. The story put forward by PW1 prosecutrix P is not acceptable as the entire story narrated by her while appearing in witness box as PW1, is contradictory to her statement Ex. PW1/A, and it becomes a improbable story and is unlikely to be believed.
28. Hence the inconsistent and contradictory piece of sole testimony of prosecutrix P gives rise to thick clouds of doubt. In these circumstances, on the basis of above discussion and observation, prosecution has miserably failed STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.
:20: to prove the charge framed against accused Raj Singh Dalal u/s 376 IPC and U/s 506 IPC. Therefore, accused Raj Singh Dalal is acquitted of the charges framed against him in this case. Bail bond and surety bond of accused stands discharged. File be consigned to record room after necessary compliance.
Announced in the open court (SANJAY KUMAR) today i.e. 24.11.2010 ASJ-01 (NW),ROHINI COURTS: DELHI STATE VS RAJ SINGH DALAL //FIR NO.1042/04 PSSULTAN PURI //U/S. 342 376 506 IPC.