Delhi District Court
State vs . on 5 June, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI. SC (Complaint Case) No. 56/13. Unique Case ID No.02405R0845082008. State . Vs. Dabbu Yadav, S/o Sh. Rameshwar Singh Yadav, R/o 345, Village Kapashera, New Delhi. Date of Institution : 09.5.2008. CC u/s.452/376/323/506/34 IPC. P.S. Kapashera. Date of reserving judgment/Order : 03.6.2013. Date of pronouncement : 05.6.2013. JUDGMENT
1. The accused has been facing trial for having committed the offences punishable u/s.376(2(g) IPC and u/s.376 IPC.
2. The foundation of this case is the application u/s. 156(3) Cr.PC filed by prosecutrix 'B' (real name withheld in order to protect her identity) before the concerned Magistrate on 08.5.2008 complaining that she was raped by the accused and his SC No.56/13. Page 1 of 22 associates on 01.5.2008. It has been mentioned by the prosecutrix in the said application that on 01.5.2008 at about midnight i.e. 12.40 a.m. when she was returning home after taking water from a government water tap, five persons entered her house behind her and beat her with fists, blows and kicks. They gagged her mouth with a piece of cloth. She fell down and all of them committed rape upon her one by one. While one person was committing rape upon her, the other persons were consuming liquor in a room and they had also broken her ceiling fan. They broke the empty liquor bottles inside the room and threatened to kill her with broken bottles. They also removed bangles from her wrist. When the prosecutrix raised hue and cry, all of them ran away. She made a call at telephone no.100. PCR officials came and she was taken to police station where her statement was recorded. Thereafter she was brought to Safdarjung Hospital for medical examination. From the hospital, she was allowed to go home on the assurance that necessary action would be taken. However since no action had been taken by the police officials, she was constrained to approach the Ld. Magistrate.
3. The aforesaid application of the prosecutrix was treated by the Ld. Magistrate as a private complaint u/s.200 Cr.PC and accordingly presummoning evidence was recorded. The prosecutrix examined herself only as CW1. Upon perusal of the application and the deposition of the prosecutrix as CW1, Ld. Magistrate summoned the accused vide order dated 19.2.2010 to face prosecution for the offences alleged to have been committed by him.
SC No.56/13. Page 2 of 224. After the accused appeared before the Ld. Magistrate in pursuance to the summons issued to him. The case was committed to the court of Sessions as it involved commission of sessions triable offence only.
5. Upon committal of the case to the court of Sessions, Charge u/s.376(2)(g) IPC as well as a separate Charge u/s.376 IPC were framed against the accused on 24.8.2011. The accused pleaded not guilty to the aforesaid charges and accordingly the prosecution was called upon to lead its evidence. Two witnesses have been examined by the prosecution to prove the charges against the accused. The accused was examined u/s.313 Cr.PC on 16.4.2013 in which he denied all the incriminating facts and circumstances put to him. He further stated that the husband of the prosecutrix had taken building material on credit from him but did not make the payment for about one and a half years. However, ultimately, he had to make the payment under pressure of the accused upon which the prosecutrix became annoyed and threatened him that she would extract from him the amount equal to five times of the aforesaid amount. The prosecutrix started filing case after case against him. He also stated that the prosecutrix is still demanding money from him in lieu of withdrawal of these false cases. She has been calling him from her mobile no. 9540252928 on his mobile no.9650989415. He claimed false implication in this case.
6. The accused has examined two witnesses in his defence. DW1 is the counsellor from Kapashera Municipal Ward where the house of the prosecutrix is situated and DW2 is SC No.56/13. Page 3 of 22 Inspector Sukhdev Meena, who had attended the call of rape received in P.S. Kapashera on 01.5.2008.
7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
8. Ld. APP submitted that it is established from the testimony of the prosecutrix that she was first gang raped by the accused alongwith his associates on 01.5.2008 at about 12.40 a.m. in the night and thereafter the accused again raped her on 12.5.2008 at Bhandari Farm House. She further stated that the testimony of the prosecutrix is corroborated by the testimony of PW2, who had seen the accused alongwith his associates taking away prosecutrix from the Municipal water tap. She also submitted that nothing contrary to the prosecution case could be elicited from the cross examination of these two witnesses and therefore the accused is liable to be convicted.
9. On the other hand, Ld. Counsel for the accused submitted that there are material contradictions in the testimony of the prosecutrix recorded before this court, when compared with her earlier statement as well as the contents of her application filed initially. It is submitted that the prosecutrix has made material improvements upon the statement made by her in the application u/s.156(3) Cr.PC and therefore her testimony deserves to be discarded in toto. The Ld. Counsel further submitted that the testimony of both the prosecution witnesses is not only false and concocted but also highly improbable and lacking any credibility. According to him, the accused is liable to be acquitted.
SC No.56/13. Page 4 of 2210. In her application u/s.156(3) Cr.PC the prosecutrix has mentioned only one incident dated 01.5.2008. She has mentioned that on that day at about 12.40 a.m. in the night when she returned home after collecting water from municipal water tap, five persons entered her house behind her, beat her, gagged her mouth and committed rape upon her one by one. They also broke the empty liquor bottles inside her room and threatened to kill her with broken bottles. It is therefore evident from the contents of the application that she was allegedly gang raped in one of the rooms of her house. What intrigues this court is that she has not mentioned anywhere in the application that the accused was among those persons, who gang raped her.
11. She deposed as CW1 in presummoning evidence. It is in this deposition that she has alleged another incident of rape committed on 12.5.2008. She has deposed that on 01.5.2008 at about 12.40 a.m. When she was collecting water from municipal water tap, the accused alongwith 4/5 persons came to her residence. All of them had consumed liquor and beat her with kicks and fists. Thereafter they committed rape upon her one by one. At that time, her children were sleeping inside the house. The door of their room had been bolted from outside. However, her elder son was not present in the home. She dialled telephone no.
100. Police including SHO Sukhdev Meena came to the spot and accused Dabbu Yadav was apprehended from the spot. However, the SHO shook hands with him and assured him that he would be saved. She also deposed that the accused had left his mobile phone at her house. She further deposed that on 12.5.2008 when SC No.56/13. Page 5 of 22 she was returning from the office of DCP Vasant Vihar, accused alongwith 4/5 persons met her, took her to the back side of his house and raped her. She reached P.S. Kapashera at 9.35 p.m. but the SHO asked her to make a call at telephone no.100.
12. In her deposition before this court as PW1, she has stated that on 01.5.2008 at about 12.40 p.m. in the night the accused had come to her house alongwith five other persons. At that time, she was taking water from municipal water supply in presence of 3/4 ladies, who were residing as tenants in the nearby properties. Accused and his associates started giving her blows. On seeing this, other ladies ran away and thereafter the accused and his four associates committed rape upon her. Out of the four associates of the accused, two namely Satpal @ Ramesh and Desi Kabari Wala were known to her. The other two associates are relatives of the accused, one is his uncle and another is his nephew. Accused broke a glass bottle and threatened her. At that time, her children were sleeping in the room and their room was bolted by the accused from outside. Thereafter she called PCR at telephone no.100. SHO Inspector Sukhdev Meena came to the spot and arrested the accused from the spot, who was in inebriated condition. She was also taken to the police station and from there sent to Safdarjung Hospital for medical examination. However, her medical examination was not done in a proper manner. She is in possession of her petticoat which she was wearing at the time of commission of offence. She further deposed that on 12.5.2008 at about 7 p.m. when she was waiting at the bus stop at Rajokari traffic light, on her return from the office of DCP Vasant Vihar, accused alongwith his 4/5 associates came and took her to SC No.56/13. Page 6 of 22 Bhandari Farm House where they beat her and committed rape upon her. The accused caught hold of her by her hairs, took her near a well in the Bhandari Farm House and threatened her that she would be buried in the well. She somehow managed to escape, reached P.S. Kapashera at about 9.35 p.m. and met the SHO, who asked her to make a call at telephone no.100. She made a call at telephone no.100. In the meanwhile, SHO while sitting alongwith accused, abused her and asked her to leave the police station. SHO also threatened her that her elder son would be implicated in a false case.
13. In the cross examination, she deposed that there are total eight rooms in her house and the actual owner of the house is her brother-in-law (Jija) namely Surender Rai. According to her, accused is her husband. She further deposed that there are four rooms on the ground floor of the house and four rooms on its first floor. The four rooms on the first floor are occupied by four tenants. She is living on the ground floor and there is no tenant on the ground floor. She used to receive Rs.1,500/- as rent per month for one room. She admitted that she had not mentioned the name of Satpal @ Ramesh and Desi Kabari Wala in her complaint and in her statement dated 14.8.2008 during her presummoning evidence before the Ld. Magistrate. She stated voluntarily that she came to know about their name later on upon personal enquiries. At the same time, she also stated that accused himself told her on phone about one years after the incident that he was accompanied by Satpal @ Ramesh and Desi Kabari Wala at the time of incident. She further deposed that municipal water tap is in front of her house is adjoining wall of her house. The ladies had come to SC No.56/13. Page 7 of 22 collect water from the water tap from a far of distance as there is no other municipal water tap in the neighbourhood. She was confronted with her complaint/application dated 08.5.2008 wherein she had not mentioned that 3 or 4 ladies were present when the accused alongwith his associates accosted her on 01.5.2008; that her children were sleeping in the room at that time and the accused bolted their room from outside; that after she had made a call at telephone no.100; SHO Inspector Sukhdev Meena came to the spot and arrested the accused; that she is in possession of SIM Card of the mobile phone of the accused and that she is also in possession of petticoat which she was wearing at the time of incident dated 01.5.2008.
14. She has further deposed that she did not know the name of the ladies, who had come to collect water from the water tap near her house. She has two daughters and one son. The daughters are aged 17 years and 16 years whereas the son is aged 13 years. All the three children were present in her house at the time of incident but were sleeping in the room. The son of her sister aged 23 years also used to stay with her but he was not present in the house at the time of incident dated 01.5.2008 as he had gone to Manesar for painting job. She further deposed that on 12.5.2008 she had gone to the office of DCP Vasant Vihar as no action was taken on her complaint regarding the incident dated 01.5.2008 and on that day she had submitted a written complaint to the DCP and had obtained a receipt in lieu of the same but she had not brought the receipt with her to the court. She had reached there in a bus plying on route no.578 and also returned by the bus plying on same route number. The bus had originated from SC No.56/13. Page 8 of 22 Safdarjung bus terminal and used to ply upto Najafgarh via Kapashera. She had filed a complaint before the Ld. Magistrate in the present case after her aforesaid visit to the office of DCP but she did not remember after how many days of the same. According to her, Bhandari Farm House is at a half an hour's walking distance from her house as well as from the house of the accused. She was again confronted with her statement dated 14.8.2008 recorded by the Ld. Magistrate during presummoning evidence wherein she had not mentioned that she was raped by the accused and his associates in Bhandari Farm House on 12.5.2008 an that accused held her by her hairs, took her near a wall in the Farm House and threatened her that she will be buried in the said well. She admitted that she has filed certain other criminal cases as well as civil cases including matrimonial cases against the accused and all of them except the petition u/s.125 Cr.PC are still pending disposal. The petition u/s.125 Cr.PC has been dismissed. She also admitted that another State case involving offence u/s.376 IPC has been initiated against the accused on the basis of her complaint and same is also pending disposal before this very court. She further denied all the suggestions put to her by the Ld. Cross examining Counsel.
15. A perusal of the three statements of the prosecutrix, noted hereinabove, reveals glaring inconsistencies in her version of the incident which makes her an untruthful witness. The inconsistencies and contradictions are so material and grave as to render her testimony wholly unreliable and untrustworthy. It needs to be noted that there can be no other shocking and unforgettable incident in the life of a woman than the incident of rape. The SC No.56/13. Page 9 of 22 incident of rape remains etched in the memory of the victim for all times to come and it is almost impossible for her to forget even the minutest detail of the same. The victim of rape would narrate the incident, though not in public, accurately without any pause or stammer even after considerably long interval after the incident. Any contradictions or improvements found in her deposition in court would only demonstrate that she is lying and it would be a total miscarriage of justice to place any reliance upon her testimony. It can be aptly said that in cases involving sexual assault upon women, the evidence of the victim should be of sterling quality as the fate of the case depends upon the quality and face value of her testimony. Who can be termed as a 'Sterling Witness' has been dealt with in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi, 2012 (131) DRJ 3 (SC) wherein the quality of the testimony of the prosecutrix, which can be made as a basis to convict the Appellant, was considered in detail and it was so held:
"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the SC No.56/13. Page 10 of 22 witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime, should remain intact while all other SC No.56/13. Page 11 of 22 attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
16. In the first place, I may mention that the prosecutrix has given different statements on different occasions regarding how she is related to the accused as well as to Sh. Surender Rai. In the application u/s.156(3) Cr.PC, which is the foundation of the present case, she described herself as wife of Surender Rai. In her statement as CW1 during presummoning evidence also, she described herself as the wife of Surender Rai. However, in her testimony before this court as PW1, she has described herself as the wife of accused. In her cross examination also, she reiterated that the accused is her husband and further stated that Surender Rai is her brother-in-law (Jija). The prosecutrix has nowhere mentioned in her entire testimony when she had got divorced from Surender Rai and when she got married to the accused. It has also come in the cross examination of the prosecutrix that she is having two daughters aged 17 years and 16 years and a son aged 13 years. She is silent in this regard also as to from whose loin she has given birth to these children. Who is biological father of these three children, accused or Surender Rai? There is nothing on record in this regard.
17. Further if the accused is, in fact, the husband of the prosecutrix, what led him to get his own wife gang raped by his SC No.56/13. Page 12 of 22 associates. The prosecutrix is totally silent in this regard. There has to be a strong motive or reason for the husband to get his own wife ravished by some third person. It is also not clear from the record that if the accused is the husband of the prosecutrix, why the prosecutrix was not staying with the accused and why she was stying in the house of her so called brother-in-law Surender Rai and if that house belong to Surender Rai why she was collecting rent from the tenants staying there. These few unanswered questions which have cropped up from the material on record make whole case of the prosecution unreliable and untenable.
18. As noticed herein-above, the application u/s.156(3) Cr.PC filed by the prosecutrix before the Ld. Magistrate on 08.5.2008 is the foundation of this case. In this application, the prosecutrix has mentioned about only one incident of rape dated 01.5.2008. As per the version of the prosecutrix, she was raped by the accused second time on 12.5.2008 when she was waiting at the bus stop of Rajokari traffic light at about 7 p.m. on her return from the office of DCP Vasant Vihar. In her cross examination, she has deposed that she filed the complaint before the Ld. Magistrate in the present case after her visit to the office of DCP but she did not remember after how many days of the same. On being asked whether she has mentioned the incident of rape dated 12.5.2008 also in her complaint to the Ld. Magistrate, she replied that she does not recollect. This clearly demonstrates that the incident of rape dated 12.5.2008 has been fabricated by the prosecutrix later on. If this incident had, in fact, taken place, she would have definitely mentioned so in her application u/s.156(3) Cr.PC as she has herself deposed in the cross examination that she filed the SC No.56/13. Page 13 of 22 complaint before the Ld. Magistrate after her visit to the office of the DCP.
19. Regarding the same very incident dated 12.5.2008, it needs to be noted that the prosecution in her statement as CW1 during presummoning evidence has deposed that the accused alongwith his 4/5 associates took her to the back side of his house and raped her. In her deposition before this court as PW1, she has stated that she was taken to Bhandari Farm House and raped there. This is too material contradiction and improvement to be ignored. The contradictory statements of the prosecution regarding the spot of crime clearly goes to show that she has fabricated the incident of rape and her testimony in this regard is absolutely far from being credible and trustworthy. In this regard, it may also be noted that the prosecutrix as per her own statement, is a resident of village Kapashera. As per her deposition in cross examination, she had gone to the office of DCP at Vasant Vihar in the bus plying on route no.578 and had returned by bus plying on the same route. According to her, the bus originated from Safdarjung Bus Terminal and used to ply upto Najafgarh via Kapashera. Therefore the bus could have dropped her at Kapashera. Why she alighted at Rajokari traffic light bus stop and why she was waiting at that bus stop, is not discernible from her testimony and this also reinforce the doubt in the prosecution case.
20. Coming to the incident of gang rape dated 01.5.2008. In her application u/s.156(3) Cr.PC, she has mentioned that at about 12.40 a.m. in the night when she returned home after SC No.56/13. Page 14 of 22 collecting water from municipal water tap, five persons entered in her house behind her, beat her, gagged her mouth and took turns in raping her. They also broke empty liquor bottles inside the room and threatened to kill her with broken bottles. From the said contents of the application, it is evident that the prosecutrix was allegedly gang raped in one of the rooms of her house. However, in her deposition as CW1 during presummoning evidence, she states that accused alongwith 4/5 persons came to her house when she was collecting water from municipal supply water tap, who were in inebriated condition and committed rape upon her by turns. Her children were sleeping inside the house and the door of their room was bolted from outside. This indicates that the prosecutrix was not raped inside her house but outside her house. In her testimony before this court as PW1 also the prosecutrix states that when she was taking water from the water supply tap in presence of 3/4 ladies of the neighbourhood, accused and his associates beat her and thereafter committed rape upon her. Here also she does not say that the accused and his associates had come inside her house and raped her inside her house. So regarding the incident dated 01.5.2008 also the prosecutrix is not sure about the place where she was raped and has given contradictory statements in this regard. It is very pertinent to note that in the application u/s.156(3) Cr.PC the prosecutrix has not mentioned that the accused had also come to her house alongwith those 4 or 5 associates, who had allegedly raped her. She has taken the name of the accused for the first time during presummoning evidence as CW1.
21. In the application u/s.156(3) Cr.PC, the prosecutrix has SC No.56/13. Page 15 of 22 stated that when she raised hue and cry, all the assailants ran away and then she made a call to PCR at telephone no.100. Police officials reached there and she was taken to police station where her statement was recorded. Thereafter she was taken to Safdarjung Hospital for medical examination. In paragraph no.3 of the application, she has very specifically stated that till the date of filing of the application, no arrest has been made by the police. However, in her deposition as CW1 during presummoning evidence and in her testimony as PW1 before this court, she has stated that the accused was apprehended from the spot of incident itself by the SHO. This is a clear improvement made by the prosecutrix over her previous statement and therefore not only is unworthy of consideration but also makes the testimony of the prosecutrix untrustworthy.
22. As per the version of the prosecutrix, she was collecting water from the municipal water supply tap at 12.40 a.m. in the night intervening between 01.5.2008 to 02.5.2008 when accused alongwith his associates came there and raped her. She has deposed in her cross examination that the water supply used to come to her house between 12.30 a.m. in the night and 3 a.m. in the morning. This assertion of the prosecutrix has been trashed by DW1. According to DW1, he owns a house in Gali No.8 of Kapashera, in which gali the house of the prosecutrix is also situated. He has let that house to the tenant. According to him, there is no municipal water supply in that gali and the residents of that gali get water from Jet pumps and bore wells. He further deposed that wherever there is municipal water supply in Kapashera area, the water runs in the taps from 6 a.m. to 10 a.m. SC No.56/13. Page 16 of 22 in the morning and from 4 p.m. to 8 p.m. in the evening. I see nothing in his cross examination which may persuade me to disbelieve his testimony. His testimony has remained uncontroverted. Even otherwise also it is not believable that the water supply would run in the taps in any area in Delhi between 12.30 a.m. in the night upto 3 a.m. Hence the foundation of the prosecution case gets shaken and it must crumble onto the ground.
23. The prosecutrix claims that the accused had left his mobile phone at the place of incident after he ran away and she is in possession of the SIM card of the mobile phone. She also claims to be in possession of petticoat which she was wearing at the time of incident. According to her, since there was no police investigation in this case, she could not handover these articles to the police officials but intriguingly she has not produced these two articles before this court on any occasion at all during her presummoning evidence or postsummoning evidence. She should have produced these articles before the court atleast at the time of her deposition as PW1 and requested the court to send the petticoat for forensic examination. That having not been done, an adverse inference has to be taken against the prosecution as well as prosecutrix that she is lying in this regard.
24. It was submitted by the Ld. APP that the testimony of PW2 corroborates the testimony of prosecutrix (PW1) that she was taken away by the accused alongwith five to six persons from the municipal water tap when she was collecting water there at 12 midnight on the date of incident. A perusal of the deposition of SC No.56/13. Page 17 of 22 PW2 and when read in juxtaposition with that of PW1 clearly reveals that she is a planted witness. Firstly for the reason that the prosecutrix in her statement u/s.156(3) Cr.PC has not mentioned that some ladies were also present near the municipal water tap when she was collecting water and was taken away by the accused alongwith his associates. Secondly, the prosecutrix has deposed in her cross examination that she does not know the names of the ladies, who had come to collect water from the tap near her house on the date of incident. It is, therefore, not understandable how she located PW2, who had, as per her testimony, left Kapashera area about 4 to 5 years before and has been now residing at Nathupura, New Delhi. PW2 has deposed that on that day at about 12 midnight, when she alongwith prosecutrix and other 5 to 6 ladies of the neighbourhood were present near the municipal water tap collecting water, some 5 to 6 persons came there, pulled the prosecutrix by hairs and took her away and she alongwith other ladies became frightened and left the spot. She deposed that accused was amongst those persons, who took away the prosecutrix. At the same time she also deposed in the cross examination that she had seen the accused for the first time on the date of incident and thereafter she saw him again in this court on 09.4.2013 when her examination in chief was recorded. According to her, she did not see the accused during this interval of time. It is thus evident that PW2 had seen those assailants for just few seconds and that too in the electricity light, when they had allegedly taken away the prosecutrix. Thereafter she did not happen to see any of those assailants for a period of about five years before she deposed in this court on 09.4.2013. Therefore her identification of the accused before this court on SC No.56/13. Page 18 of 22 09.4.2013 does not appear to be genuine one but apparently she did so at the instance of and on account of tutoring by the prosecutrix. I have no hesitation in rejecting the testimony of PW2 outrightly.
25. In the cases involving offence of rape, the testimony of the prosecutrix is the most crucial and relevant piece of evidence. The statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration and the court may convict the accused on her sole testimony. However, as held by the Supreme Court in Udai Vs. State of Karnatka AIR 2003 SC 1639, even in case of rape, onus is always on the prosecution to prove affirmatively, all the ingredients of the offence, which seek to establish and such onus never shifts. It is not the duty of the defence to explain as to how and why the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take the support from the weakness of case of the defence. However, the great the suspicion against the accused and however strong the moral belief and the conviction of the Court, unless the offence of the accused is established, beyond reasonable doubt on the basis of legally admissible evidence and the material on record, the conviction cannot be ordered. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
26. The Supreme Court in the case of Rajoo Vs State of MP AIR, 2009, SC 858 as under:-
SC No.56/13. Page 19 of 22"The evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved".
27. In the same judgment, the Supreme Court also observed that the accused must also be protected against the possibility of false implications, their being no presumption of any condition for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
28. In Tameezuddin @ Tammu Vs. State (NCT of Delhi) 2009 15 SCC 566 (AIR 2009 SC(Supp)2519:2009 AIR SCW 6219), this court held as under:-
SC No.56/13. Page 20 of 22"It is true that in a 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 matter".
29. In Jai Krishna Mandal & Anr. Vs. State of Jharkhand (2010) 14 SCC 534, this court while dealing with the issue held:
"The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
30. In the instant case, I find the testimony of the prosecutrix full of inconsistencies, contradictions and improbabilities. Her testimony is not only very far from being trustworthy and credible but also does not inspire any confidence at all. Apparently, it seems that the allegation of rape levelled by him against the accused are false and baseless. It would be a total miscarriage of justice to rely upon such type of evidence and to pronounce the judgment of conviction.
31. The result of the aforesaid discussion is that the prosecution has failed to prove the charges against the accused SC No.56/13. Page 21 of 22 beyond doubt. The accused is liable to be acquitted and is hereby acquitted as such.
Announced in open (VIRENDER BHAT)
Court on 05.6.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.56/13. Page 22 of 22