Delhi District Court
State vs Accused on 26 March, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0158572011 SC NO.148/13 Date of Institution :06.06.2011 FIR No.45/11 Date of Argument :22.03.2013 PS Harsh Vihar Date of Order :26.03.2013 U/S 376/506 IPC State Versus Accused Vinod Kumar S/o Sh. Krishan Murari R/o H. No. A-1-197, Nand Nagri Delhi. JUDGMENT
The facts in brief of the prosecution case are that accused Vinod is cousin (father's elder brother's son) and Smt. _X__, here in after referred to as the prosecutrix is wife of Sh. _______Y_______. The prosecutrix and her husband were residing at H. No. __________Z__________, Mandoli Extension, Harsh Vihar, Delhi. On 20.03.2011 it was a day of Holi. At about 12 - 1 p.m. the prosecutrix was taking rest as she was having pregnancy of 5-6 months.
The accused came in their house and took
SC No.148/13 State vs. Vinod Kumar Page 1 of 19
her husband _______Y_______ on the roof and they
consumed liquor. Her husband came under the influence of intoxication and could not come down. Accused came down and entered into her house and committed sexual intercourse forcibly with her without her consent. None came to her rescue despite of crying and raising alarm as there was a noise in the street due to Holi festival and her husband was under the influence of intoxication. Accused threatened her not to disclose this fact least he would kill her and her husband. She was terrorized. In the evening her husband came out of the intoxication and came down. She told about the incident to him but he was scared. On 22.03.2011, she disclosed this fact to her mother who took her to the P.S. at about 6 p.m. Police recorded her statement. IO recorded endorsement on her statement and got the FIR No. 45/11 recorded u/s 376/506 IPC. The I.O. inspected the place of occurrence and prepared site plan. The prosecutrix was sent to GTB Hospital where she was medically examined. Doctor also took samples and handed over the same to W/Ct. Shashi Bala. Ct. Shashi Bala handed over the same to I.O. who received the same by preparation of seizure memo. IO also seized clothes which were worn by the prosecutrix and bed sheet vide separate seizure memo and deposited the exhibits in the Malkhana. Accused was arrested on 23.03.2011. In the evening his SC No.148/13 State vs. Vinod Kumar Page 2 of 19 arrest memo and personal search memo were prepared. On the same day he was also taken to GTB hospital for his medical examination. Doctor also took his samples and handed over to Ct. Virender who handed over the same to the I.O. and those were also seized vide separate seizure memo. It was observed by the doctor that there was nothing suggestive of the fact that the patient was incapable of performing sexual intercourse. Accused was also interrogated and his disclosure statement was recorded. The samples were sent to FSL and report was collected. IO recorded statements of witnesses and filed a charge sheet against the accused for his trial for the offences punishable u/s 376/506 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case was assigned to herself by Ld. Additional Sessions Judge Incharge, North East District, Karkardooma Courts, Delhi.
3. Vide order dated 13.07.2011 the court opined that there was prima facie sufficient material on record for framing of charge against the accused for the offences punishable u/s 376/506 IPC. Therefore, charge against the accused for his trial for the said offences was framed and SC No.148/13 State vs. Vinod Kumar Page 3 of 19 read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined SI Mahesh Kumar as PW1; Ct. Virender as PW2; Dr. Gurpreeet, Senior Resident Obs/Gynae, GTB Hospital as PW3; Ct. Bhanwar Lal as PW4; Smt. _X__, the prosecutrix as PW5; Sh. Parmod Kumar s/o Sh. Kalyan Singh as PW6; Smt. ____X-1____ w/o Sh. Ram Sewak as PW7; Ct. Shashi Mala as PW8; HC Hardayal as PW9; and W/ASI Suman, partly, as PW10.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution further examined W/ASI Suman, as PW10 and Dr. Parmeshwar Ram, CMO, GTB Hospital, Delhi as PW11.
7. After closing of prosecution evidence statement of the accused u/s 313 of the Code of Criminal Procedure, here in after referred to as the Code was recorded. All the material and incriminating evidence was put to him. He SC No.148/13 State vs. Vinod Kumar Page 4 of 19 admitted that he was cousin of husband of the prosecutrix. He pleaded that PW5, the prosecutrix and PW-6, her husband borrowed Rs.20,000/- from him for a month and did not return even after three months. On 18.03.2011 he was having hot conversation with them on phone and they falsely implicated him in this case. He opted to lead evidence in defence. However, he could not produce any evidence in his defence.
8. After closing of evidence by the prosecution, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
9. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
10. In order to prove its case for the offence of criminal intimidation, punishable u/s 506 IPC, the prosecution has to prove firstly, that accused gave threat to the prosecutrix and secondly, the threat was to cause SC No.148/13 State vs. Vinod Kumar Page 5 of 19 death or grievous hurt, etc.
11. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved both the offences against the accused beyond any reasonable suspicion and shadow of doubt and the accused is liable to be held guilty and convicted for the said offences.
12. On the other hand, Ld. Defence Counsel for accused has submitted that testimony of prosecutrix is unworthy of credence and unreliable. It has also been argued that there is delay in reporting the matter to the police. The prosecutrix was having telephone and her house was situated within the same locality where house of her mother was situated but she did not tell the incident to her mother immediately. She even failed to tell the occurrence of incident to her landlady. Husband of the prosecutrix did not support statement of the prosecutrix. There was a dispute between the parties regarding return of loan of Rs.20,000/- which was given by the accused to the prosecutrix. The conviction should be based on such a piece of evidence. He submitted that accused is entitled for acquittal by getting benefit of doubt.
SC No.148/13 State vs. Vinod Kumar Page 6 of 1913. In support of his arguments Ld. Defence Counsel relied on a case, Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC) wherein the Apex Court observed that:
"17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point 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, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220)"
14. Ld. Defence Counsel further relied on a case, Jahid @ Lambu v. State (GNCT of Delhi), 2009 (3) JCC 1760 wherein the Delhi High Court observed that:
"14. *** It is probable that he may have committed the murder, but it is also possible that he may not have. The prosecution case has not gone beyond the realm of probabilities. This is not sufficient to convict a person. There is a great deal of doubt and the benefit of this would go to the appellant.***"
15. After considering the arguments of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has failed to prove its case against accused beyond any reasonable suspicion and shadow of doubt.
SC No.148/13 State vs. Vinod Kumar Page 7 of 1916. In a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
17. In a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031, the Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
18. I have considered whether principles of these cases are applicable on the facts of present case. I come to the conclusion that due to the reasons which are being SC No.148/13 State vs. Vinod Kumar Page 8 of 19 discussed here in after, the principles of law laid down in these cases, instead of, providing benefit to the prosecution, provide benefit to the accused, because testimony of PW5 is not consistent, reliable and trustworthy. Rather some of the points which were admitted by the prosecutrix created doubt about the truthfulness of her testimony. Besides, circumstances have been established on record for compelling this court to opine that there may be chance of false implication of the accused. This finds support by principles of law laid down in Narender Kumar v. State (NCT of Delhi), (supra), relied on by Ld. Defence Counsel. This is first reason of my decision.
19. In her examination in chief PW1 deposed that on the day of Holi on 20.03.2011 at about 12 - 1 p.m., accused, who is cousin of her husband came to her house and asked her husband to take liquor. Initially, her husband declined the proposal but on insistence of the accused, both of them went to the roof and started taking liquor. Both of them took liquor for about 2 hours. Her husband came under the influence of liquor and then accused came downstairs and entered inside her room where she was taking rest as she was pregnant of 5-6 months and he caught hold of her by her hands to which she objected and SC No.148/13 State vs. Vinod Kumar Page 9 of 19 asked him as to why he was behaving in that manner. Accused then forced her and laid down on bed and forcibly committed sexual intercourse against her will and consent. She raised cry but because of Holi festival her sound could not go outside. Nobody could listen her cries. Her husband who was lying on the roof under the influence of alcohol came down after coming out of effect of liquor/alcohol and he narrated the incident to him. Conversely, her husband PW6 deposed that when he came down at about 5-6 p.m. in the evening after coming out the effect of liquor, he found that his wife was not there in the house. He inquired from his landlord and landlord informed him that his wife had gone to the house of her brother in law (her sister's husband) situated in Amit Vihar. His sister in law informed him that something wrong had taken place with his wife. His wife narrated the incident that accused Vinod has committed a foul act with her in the room of their house. His parents in law and 5-6 other persons accompanied them and they gave him beating on the pretext that he was not taking care of his wife. They took him to their house in Loni. On 22.03.2011, his mother in law lodged the FIR with the police and his signatures were taken by police on some papers details of which he could not explained. In cross examination he stated that his wife used to obey commands of people of her parental family rather than his SC No.148/13 State vs. Vinod Kumar Page 10 of 19 command. He also admitted that landlady also did not tell him about the incident and the landlord told him that no such incident had taken place in his house. He also believed that accused would not do any such wrong act with his wife. Thus, statement of prosecutrix and her husband on material points are contrary. Prosecutrix deposed that he narrated all the incident when her husband came down in the evening but husband deposed that when he came down his wife was not there and it was told to him that she had gone to house of his brother in law (her sister's husband). Moreover, the husband of the prosecutrix did not rely on the statement of prosecutrix that the accused committed wrong act with her. This is second reason of my decision. This is second reason of my decision.
20. In her cross examination, PW5 admitted that she was having mobile phone with her on the date of incident. She also admitted that her parents were residing nearby at a distance of about 700-800 yards from her house. It has not been explained as to why the matter was not brought to the notice of mother in law or the members of their family members on the same day when mobile phone was available with her and her parents were also residing nearby. The delay has created doubt about the truthfulness SC No.148/13 State vs. Vinod Kumar Page 11 of 19 of the prosecution case. This is third reason of my decision.
21. My decision finds support by the principles of law laid down in case, Jagdish v. State, (Delhi), 1987(1) R.C.R.(Criminal) 613 : 1987(1) AICLR 465, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 :- "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to 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 the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite after results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in SC No.148/13 State vs. Vinod Kumar Page 12 of 19 lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to." [Emphasis supplied]
22. The witnesses have given different explanation for the delay. For example, prosecutrix PW5 stated that he did not give any call to her parents because a threat was given by the accused and she was terrorized and accordingly, narrated to her parents only on 22.03.2011. Her husband PW6 stated that delay for lodging report with the police was because firstly, his parents in law tried to lodge a report with Loni Police but no report was recorded there and then they came to PS Nand Nagri but there also police declined to register the case. Finally, the report was lodged in P.S. Harsh Vihar as his house is situated in Saboli which falls within the jurisdiction of PS Harsh Vihar. PW7 mother of prosecutrix deposed that she asked her daughter as to why she did not convey the incident to her prior to 22.03.2011 and told the same subsequently. It was told to her that because of threat given to her by the accused she was unable to convey it to her immediately. Thus, the witness has given different version of delay. This has also created doubt in the truthfulness of the prosecution case. This is fourth reason of my decision.
SC No.148/13 State vs. Vinod Kumar Page 13 of 1923. PW5, prosecutrix also deposed that as soon as accused after committing rape on her went out from her house, the wife of his landlord Smt. Poonam who was also standing in the gali came inside the house and she saw her weeping. She asked her reason for crying and she only told her that Vinod had played holi colours in indecent way. The non passing of information about the incident to the landlady who came in contact first of all further creates doubt about the truthfulness of his testimony. Besides, the prosecutrix has failed to give any reason as to why she did not tell the incident to that landlady. This is fifth reason of my decision.
24. The commission of rape on the prosecutrix has not been supported by any medical evidence. Dr. Gurpreet who medically examined the prosecutrix vide her MLC and detailed report Ex.PW3/A, in cross examination admitted that she examined the patient after about 72 hours of incident. There was no possibility of availability of any evidence of rape. She admitted that there was no conclusive proof of rape during the course of medical examination of the prosecutrix. In cross examination, prosecutrix admitted that she had taken bath after the incident till the report was lodged on the date of incident as well as on the next date and on the date of report. The SC No.148/13 State vs. Vinod Kumar Page 14 of 19 clothes she was wearing at the time of incident have been washed by the water and those were the washed clothes which were given to police. In FSL report Ex.PW10/E nothing could come out which could connect the accused with the commission of crime. Thus, neither medical evidence nor scientific evidence supported the prosecutrix testimony or the prosecution case. This has further created doubt about the truthfulness of the prosecution case. This is sixth reason of my decision.
25. My decision also finds support by a case Sanya alias Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784, wherein it was observed by Orissa High Court that:
"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no independent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical evidence is also absent with regard to the opinion as to the fact of rape. For the reasons above the conviction is liable SC No.148/13 State vs. Vinod Kumar Page 15 of 19 to be set aside."
[Emphasis supplied]
26. My decision further finds support by a case Lachhman and another v. State, 1973 CRI. L.J. 1658, wherein the Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged o have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused it would be most dangerous to base a conviction on her uncorroborated testimony alone." [Emphasis supplied]
27. PW6 husband of the prosecutrix admitted that the prosecutrix had leveled false allegations of molestation and harassment for dowry against his father. In these circumstances there may be chance of false implications of SC No.148/13 State vs. Vinod Kumar Page 16 of 19 the accused in the present case.
28. My attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible. This finds support by principles of law laid down in Jahid @ Lambu v. State (GNCT of Delhi), (supra), relied on by Ld. Defence Counsel. This is seventh reason of my decision.
29. The accused has succeeded in creating doubt in prosecution case so, he is entitled to get benefit of doubt.
30. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, it was held by P&H High Court that:
SC No.148/13 State vs. Vinod Kumar Page 17 of 19"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
This is eighth reason of my decision.
31. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against him beyond any reasonable suspicion or shadow of doubt.
CONCLUSION
32. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove its case against the accused Vinod Kumar beyond any reasonable suspicion or shadow of doubt that accused Vinod Kumar committed the offence of rape punishable u/s 376 IPC or the offence of criminal intimidation punishable u/s 506 IPC. Therefore, accused is entitled to get benefit of doubt. Resultantly, by giving benefit of doubt the accused is acquitted for the offence of rape and criminal SC No.148/13 State vs. Vinod Kumar Page 18 of 19 intimidation punishable u/s 376/506 IPC, respectively.
33. However, accused is directed to furnish within a week his personal bond for a sum of Rs.20,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
34. After furnishing of surety bonds file be consigned to Record Room.
Announced in the Open Court Dated: 26.03.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.148/13 State vs. Vinod Kumar Page 19 of 19