Delhi District Court
State vs . Kuldeep Singh on 14 March, 2017
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS JUDGE (SFTC), DWARKA COURTS, NEW DELHI. SC No. 440864/2016 FIR No. 854/2015 U/s.376/354D/506 IPC P.S. Dwarka South State Vs. Kuldeep Singh S/o Late Sh. Surjan Singh R/o WZ320, Mohalla Badiyal Palam Village, New Delhi Date of Institution : 10.03.2016 Date of reserving judgment : 18.02.2017 Date of pronouncement : 14.03.2017 JUDGMENT : 1.
Accused was arrested by the Police of Police Station Dwarka South, New Delhi and was challaned to the court for trial for commission of the offences punishable under Sections 376/354D IPC.
2. The case of the prosecution, in brief, is that the prosecutrix 'X' (real name withheld in order to conceal her identity) who was employed as a SubInspector in CRPF lodged a complaint against his brotherinlaw (Jeth) namely accused Kuldeep Singh alleging therein that accused used to make explicit sexual overtures towards her. He also used to send her vulgar messages and blue films on her mobile phone. On 4.11.2015 at about 1 p.m accused at his house (address withheld) sexually assaulted the prosecutrix by State vs. Kuldeep Singh Page 1 of 13 FIR No.854/2015 PS Dwarka South touching her inappropriately by pressing her breasts and by breaking the upper button of her shirt of her uniform. It is further the case of the prosecution that on the said day the accused forcibly put his penis into the mouth of prosecutrix 'X'.
3. On the complaint of the prosecutrix, FIR was registered and the matter was investigated by the police. During investigation, statement of the prosecutrix was got recorded u/s.164 Cr.P. Accused was arrested. The statements of the witnesses were recorded. The prosecutrix as well as accused were got medically examined. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court.
4. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions.
5. Charge u/s 376/354A/354B IPC against accused was framed to which he pleaded not guilty and claimed trial. He was accordingly put to trial.
6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined nine witnesses in all. PW1 is the prosecutrix who has narrated the incident. PW2 ASI Sukhbir Singh has proved the FIR as Ex.PW2/A; endorsement on rukka as Ex.PW2/B and the certificate u/s 65B of IEA as Ex.PW2/C. PW3 Sh. Manu Goel Kharab, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded u/s 164 Cr.PC as Ex.PW1/D. PW4 Sunita is the real sister of the State vs. Kuldeep Singh Page 2 of 13 FIR No.854/2015 PS Dwarka South prosecutrix. PW5 Constable Rajesh joined the investigation with IO. PW6 Dr. Purnima Mathur has proved the MLC of the prosecutrix as Ex.PW6/A. PW7 Dr. Vinal Sharma has proved his observations on the MLC as Ex.PW7/A. PW8 Dr. Kamal Kant Jain has proved the MLC of the accused as Ex.PW8/A. PW9 W SI Shikha is the IO of the case who filed the chargesheet in the court after completion of investigation.
7. Statement of accused was recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against him. Accused pleaded that he has been falsely implicated in this case by the police. As per accused, on 4.11.2015 he was present at his house along with his mother and younger brother namely Lalit Kumar. At about 11 a.m, prosecutrix came with two police officials and he was forcibly taken to Police Station. In his defence, accused has examined himself as DW1; his brother Lalit Kumar as DW2; his mother as DW3 and Ms. Reena Ghosh as DW4.
8. I have heard Ms. Satvinder Kaur, Ld. APP for the State and Sh. Pradeep Tyagi, Ld. Counsel for the accused. I have also perused the entire material on record.
9. The material witnesses in this case are PW1 and PW4 on whose testimonies the prosecution case rest. PW1 has testified that accused is her Jeth as well as Jeeja as he is married to her elder sister Sunita. She resided with her husband for about 89 years peacefully. After the birth of her son in the year 1996, she started living separately from her husband. However, she again started meeting her husband State vs. Kuldeep Singh Page 3 of 13 FIR No.854/2015 PS Dwarka South for the last about 57 years as he was not keeping well due to some ailments. She used to go to his house (address withheld) to meet him. She has deposed that on 4.11.2015 in the afternoon she went to meet her husband at his house to serve him food. Accused all of a sudden came before her. He caught hold of her and pressed her breasts with his hands. The accused, thereafter, opened the zip of his pant and inserted his penis into her mouth. She tried to save herself and cried for help. However, nobody came to help her as none was present in the house at that time. In the scuffle, one button of her shirt also fell down. Somehow she managed to escape herself from the clutches of the accused by pushing him and managed to run away from there. She has further deposed that accused used to send obscene messages/blue films on her mobile phone. She has proved her complaint to the police as Ex.PW1/A; arrest memo of the accused as Ex.PW1/B; personal search memo of the accused as Ex.PW1/C; her statement u/s 164 Cr.PC as Ex.PW1/D; seizure memos regarding print outs of vulgar messages and mobile phone as Ex.PW1/E & Ex.PW1/F respectively and mobile phone as Ex.P1.
10. During her crossexamination, PW1 has deposed that she was married to Sh. Lalit Kumar on 4.11.1984. She has admitted that her husband was/is not doing any job and was/is bed ridden. She has denied that she wanted to grab the immovable property of the accused at Palam, Raj Nagar Extension, New Delhi. She has further deposed that Rs.70 to 80 lakhs were given as compensation by the Government for the acquisition of their ancestral land but not even a single penny State vs. Kuldeep Singh Page 4 of 13 FIR No.854/2015 PS Dwarka South was given to her or her husband by her inlaws. She has admitted that she did not file any complaint against accused before the present complaint. She has further admitted that her sister Sunita was not having cordial relations with the accused. She has admitted that accused had filed a complaint against her with the Director, SPG, PM House, New Delhi and an inquiry was conducted against her. She has categorically deposed that her husband was not present on the day of incident when she reached her matrimonial house as he had gone to buy liquor. She has denied that a false case was registered by her against the accused. She has further deposed that on 4.11.2015 she left the police station at about 6/6.30 p.m. She has categorically deposed that she reached the spot of incident after taking permission from her officer. She has proved the said permission as Ex.PW1/G. As per PW 1, before the incident dated 4.11.2015, she had not gone to the police station to lodge a complaint against the accused.
11. PW4 Sunita is the wife of the accused. She has deposed that accused was having an evil eye upon the prosecutrix. In the month of November 1993, on one or two occasions, she saw accused standing naked in front of prosecutrix regarding which the family members were informed. In the year 2014 the accused sent obscene SMSs on the mobile phone of the prosecutrix which were seen by her. Regarding the incident dated 4.11.2015, the testimony of PW4 is a hearsay evidence.
12. During her crossexamination, she has deposed that relations of prosecutrix with her husband and motherinlaw were State vs. Kuldeep Singh Page 5 of 13 FIR No.854/2015 PS Dwarka South cordial. She has denied the suggestion that the prosecutrix never resided peacefully with her husband Lalit Kumar.
13. PW5 Constable Rajesh joined the investigation with the IO and has deposed that on 4.11.2015, on the pointing out of the prosecutrix, accused was arrested vide memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C. He has further deposed that accused made a disclosure statementEx.PW5/A and was also got medically examined at DDU Hospital.
14. During his crossexamination, PW5 has deposed that they reached the house of the accused at 7.30 p.m. He has denied that the entire investigation was done by the IO while sitting in the Police Station or all the abovesaid documents were prepared in the Police Station itself to falsely implicate the accused.
15. PW6 Dr. Poornima Mathur has proved the MLC of the prosecutrix as Ex.PW6/A while PW7 Dr. Vinal Sharma has proved his observations as Ex.PW7/A.
16. During her crossexamination, PW6 has deposed that there was no injury on the face of the prosecutrix and no sample of mouth i.e oral cavity was taken.
17. PW8 Dr. Kamal Kant Jain has proved the MLC of the accused as Ex.PW8/A. During his crossexamination, he has deposed that he did not find any human bite mark or any abraison on the private part of the accused.
18. PW9 is the IO of the case who after investigation filed the chargesheet in the court. During her crossexamination, she has State vs. Kuldeep Singh Page 6 of 13 FIR No.854/2015 PS Dwarka South deposed that prosecutrix visited the Police Station alone on 4.11.2015 at about 2.30 p.m while her sister Sunita visited the Police Station at about 6 p.m. She has further deposed that when Sunita reached the police station, the prosecutrix was also present there. As per PW9, she had gone to the spot of incident at about 7/7.15 p.m. She has denied that the accused had already been arrested at 11 a.m on 4.11.2015 by HC Basant and other police officials of PS Dwarka Sector9. She has further deposed that she had arrested the accused at about 7.30 p.m and, thereafter, he was taken to DDU hospital for his medical examination. IO has admitted that Ex.P2 is not a smart phone and from the said phone no MMS/pictures could have been sent.
19. Accused Kuldeep Singh has examined himself as DW1 and has deposed that on 4.11.2015 at about 11 a.m he was preparing food in the courtyard of his house while his mother and younger brother Lalit were sitting there. Prosecutrix along with three police officials came to their house. He was taken to the Police Station and was falsely implicated in this case. He has further deposed that the prosecutrix and her sister used to take away his mobile phone without informing him and they also used to click his photographs from their mobile phones. As per DW1, he had lodged two complaints Ex.DW1/A and Ex.DW1/B in this regard with PS Palam Village. He has further deposed that he and his brother were being harassed by their respective wives as they wanted to get them transferred properties in the names of their respective sons. They did not want to transfer the properties in the name of the sons of the prosecutrix and State vs. Kuldeep Singh Page 7 of 13 FIR No.854/2015 PS Dwarka South her sister as they are not from the loin of him and his brother. He has categorically deposed that the present false case has been filed to pressurize them to transfer the shares of the properties in the name of the sons.
20. It is the settled law that conviction in rape cases can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case the Court has reasons not to accept the version of the prosecutrix on its face value, it may look for corroboration.
21. From the testimony of PW1 it is clear that wife of the accused was not having cordial relations with him. PW1 did not file any complaint against the accused before the present FIR. Both PW1 and PW4 had filed FIRs u/s 498A IPC against their respective husbands and inlaws. As per PW1, Rs.70 to Rs.80 lakhs were granted as compensation by the Government for the acquisition of ancestral land but not a single penny was given to her by her inlaws. She has also admitted that accused had filed a complaint against her with Director, SPG, PM House, New Delhi and an inquiry was conducted against her. Thus, it stands proved that the relations of the prosecutrix with the accused were not cordial. The prosecutrix was on duty on the day of alleged incident and she was granted permission from 13 hours to 15 hours to leave the office on that day i.e 4.11.2015. This fact has been proved on record vide documentEx.PW1/G. Her duty hours on that day were from 8 a.m (4.11.2015) to 8 a.m (5.11.2015). Thus, she could not have been present in the Police State vs. Kuldeep Singh Page 8 of 13 FIR No.854/2015 PS Dwarka South Station while she was on duty. However, she has deposed that she left the PS at about 6/6.30 p.m. As per arrest memoEx.PW1/B accused was arrested in her presence at 7.30 p.m. There is no explanation from the side of the prosecution as to how she was present at the time of the arrest of the accused while she was granted permission to leave office only for two hours i.e from 13 to 15 hours. DW4 has categorically deposed that had prosecutrix not joined her duties after the permitted period, it must have been recorded in the office records. As per DW4, prosecutrix had joined the duties after completion of her out permission from 13 hours to 15 hours on 4.11.2015. PW1 has deposed that the accused used to send obscene messages on her mobile phone. However, IO has categorically deposed that mobile phoneEx.P2 is not a smart phone and no MMS/picture could have been sent on it. All these circumstances create a doubt in the story of prosecution.
22. As per PW1, her husband was not present on the day of incident when she reached her matrimonial home and was raped by the accused. However, her husband was examined by the accused in his defence as DW2. He has deposed that on 4.11.2015 accused was cooking food for him and their mother when the prosecutrix came along with three police officials and took the accused forcibly. The testimony of DW2 is corroborated by DW1 (accused) and DW3 Smt. Dharam Kaur, mother of the accused. I have gone through the testimonies of these defence witnesses. Their testimonies could not be shaken during their crossexamination. The defence witnesses are State vs. Kuldeep Singh Page 9 of 13 FIR No.854/2015 PS Dwarka South entitled to equal treatment with those of the prosecution. Their testimonies are not to be disbelieved just because they have appeared as defence witnesses.
23. PW8 Dr. Kamal Kant Jain examined the accused and has proved his MLC as Ex.PW8/A. He has categorically deposed that he did not find any human bite mark or abraison on the private part of the accused. Thus, the medical evidence also does not support that the alleged act was committed by the accused.
24. The defence taken by the accused has remained consistent throughout the trial. The burden to prove its case remains upon the prosecution. The prosecution is to stand on its own legs. In case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts on the accused.
25. Though not referred to or relied upon, in judgment Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr., 2006 (10) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony when the entire case is improbable and unlikely to have happened. This is what has been stated:
"It is true that in a rape case the accused could be convicted 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 the prosecutrix is unsupported by any State vs. Kuldeep Singh Page 10 of 13 FIR No.854/2015 PS Dwarka South 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 acepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
26. Though not referred to or relied upon, in judgment Rai Sandeep @ Deepu v. State of NCT of Delhi, (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. It held: "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 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 corelation 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 State vs. Kuldeep Singh Page 11 of 13 FIR No.854/2015 PS Dwarka South 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 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."
27. Though not referred to or relied upon, in judgment Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Supreme Court held : "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."
28. Considering the facts and circumstances of this case, I am of the opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, the accused is acquitted. His personal bond is cancelled and surety is discharged. Documents, if any, be released to the surety/Counsel. In terms of Section 437(A) Cr.P.C., accused is directed to furnish personal bond in the sum of Rs.25,000/ with one surety in the like amount for a period of six State vs. Kuldeep Singh Page 12 of 13 FIR No.854/2015 PS Dwarka South months for his appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Announced in open court (PRAVEEN KUMAR) today i.e. on 14.3.2017. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
State vs. Kuldeep Singh Page 13 of 13FIR No.854/2015 PS Dwarka South