Delhi District Court
State vs . Sonu @ Sukhchain And Other on 8 June, 2012
SC No. 47/10
FIR No.129/10
PS: Najafgarh
State Vs. Sonu @ Sukhchain and other
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 47/10
FIR No. : 129/10
Police Station : Najafgarh
Under Section : 342/376(2)(g)/506/34 IPC
Received on assignment : 21.07.2010
Reserved for orders on : 20.04.2012
Judgment announced on : 08.06.2012
State Vs. Sonu @ Sukhchain
S/o Sh Brahmanand
R/o H.No.250, Gali No.2
Near Shiv Mandir, Village Ranholla
Delhi
Narender
S/o Sh. Rohtash Singh
R/o Gali No.8, H.No.192
Maharishi Dayanand Road
Gopal Nagar, Najafgarh
Delhi.
J U D G E M E N T
1. The accused sent for trial for the offences punishable under Section 342/376 (2)(g)/506/34 IPC.
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2. Brief facts, in nutshell, are that on 21.03.2010 on receipt of DD No.64B, ASI Sudesh alongwith constable Anju reached near Jharoda bus stand, Delhi where prosecutrix (name withheld as per dictum of Hon'ble Apex Court) met them and got recorded her statement that she is residing at the above said address for the last 34 years alongwith her mother and brother Sandeep on rent and for the last three months, the prosecutrix is residing in the tenanted premises in the house of one Solanki, Jal Vihar, Najafgarh. It is further stated that 34 months back, one of the friend of her brother namely Narender, S/o Sh. Rohtash, R/o H.No.8, Gopal Nagar, Najafgarh, Delhi had borrowed an amount of Rs.3,000/ from her brother Sandeep. Brother of the prosecutrix had asked the accused Narender to return the said amount at his house as the marriage is scheduled to be held in his family and after that brother of the prosecutrix went to his native village. Thereafter accused Narender asked the prosecutrix by making a call on her mobile No.9540822731 and asked the prosecutrix to collect the loan amount of Rs.3,000/ belonging to her brother Sandeep. It is further stated that prosecutrix reached near bus terminal, Najafgarh where accused Narender was present with one another person whom he was calling as Sonu and the accused Narerder asked the prosecutrix to accompany him to his shop in subji mandi, Jharoda Kalan from where the accused Narender had promised to give the said loan amount to the prosecutrix. The prosecutrix accompanied the accused Narender and Sonu to the said shop and set inside.
SC No.47/10 Page 2 of 27 SC No. 47/10 FIR No.129/10PS: Najafgarh State Vs. Sonu @ Sukhchain and other Thereafter Sonu put down the shutter of the said shop from inside and accused Narender laid down the prosecutrix immediately on the floor and gagged mouth of the prosecutrix with cloth so the prosecutrix could not raise an alarm. Accused further caught hold the hand of the prosecutrix. Thereafter accused Narender asked Sonu to do what he wants to do immediately and accused Sonu put off the salwar of the prosecutrix and also his pant and committed rape upon the prosecutrix. At about 6:00 pm, accused Sonu and Narender go out of the said shop and prosecutrix being perplexed sat for sometime on the bus stand.
3. Thereafter prosecutrix made a call at 100 number and got recorded her statement. Prosecutrix had further stated that she could identify accused Narender and Sonu. Accused Sonu committed rape upon her inside the shop of accused Narender. It is further stated that prosecutrix wants legal action against the accused persons and prosecutrix had further showed her willingness to get herself medically examined. Prosecutrix further stated that accused Sonu had threatened her not to disclose this act to anybody. Thereafter prosecutrix was examined in MLC No.1053/10 in DDU hospital and doctor had opined that the prosecutrix has been sexually assaulted. Thereafter offence under section 342/376(g)/506/34 IPC was made out and constable Anju was sent with rukka for registration of FIR. Thereafter site plan was prepared and statement of other witnesses were recorded and search of the SC No.47/10 Page 3 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other accused was made. During investigation, accused Sonu was arrested on 23.03.2010 and got medically examined from RTRM hospital and accused was produced before the court and statement of the prosecutrix was recorded under section 164 Cr.PC and all the sealed pullands were sent to FSL Rohini.
4. After supplying copies to the accused as per law, case was committed to the court of sessions.
5. After due deliberation, charge under Section 342/376 (2)
(g)/506/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
6. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 14 witnesses in all in support of its case namely:
PW1 Const. Dinesh Kumar PW2 Dr. Nakul Avasthy, Senior Resident, Department of Obs. & Gynae, DDU Hospital, New Delhi. PW3 HC Giri Raj Prasad PW4 HC Rakesh PW5 Dr. Sitanta Das, Medical Officer, RTRM hospital, Jaffarpur, New Delhi.
PW6 Dr. Sunil Dalal, Medical Officer, RTRM Hospital, New Delhi SC No.47/10 Page 4 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other PW7 Sh. Manish Khurana, MM, Rohini, Delhi PW8 Wct. Anju PW9 Const. Jitender PW10 Prosecutrix (name withheld as per dictum of Hon'ble Apex Court) PW11 Sh. Sumit Dass, MM, Dwarka Courts, New Delhi PW12 Sh. Sandeep PW13 Const. Ravinder Singh PW14 WASI Sudesh
7. On completion of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. wherein they controverted the entire evidence as false and fabricated and claimed that they have been falsely implicated in this case by the complainant. They did not lead any defence evidence, hence final arguments were advanced.
8. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove the case.
9. PW1 is Const. Dinesh Kumar who on the directions of WASI Sudesh, took three sealed parcels, one sealed with the seal of Casualty RTRM and other two sealed with the seal of CMO DDU Hospital from MHC(M) vide RC No.18/21 and deposited the same in FSL Rohini and handed over the acknowledgment to the MHC(M).
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10. PW2 is Dr. Nakul Avasthy who got examined the prosecutrix and sealed undergarments of the prosecutrix and two vaginal swab slides were made, sealed and handed over to police. As per her medical examination, her abdomen was found soft and on her vaginal examination her uterus was found anteverted multi parasize. No evident signs of abrasion or lacerations were seen on any body part.
11. PW3 is HC Giri Raj Prasad. On the intervening night of 21.22.03.2010, he registered the FIR of the present case which is Ex. PW3/A. He made endorsement which is Ex. PW3/B and thereafter he recorded DD No.5A which is Ex. PW3/C.
12. PW4 is HC Rakesh who joined the investigation of this case with WASI Sudesh and arrested accused Sonu @ Sukhchain and Narender on the identification of complainant from village Ranhola vide arrest memos Ex. PW4/A and Ex./PW4/B. Personal search was carried out vide memos Ex. PW4/C and Ex.PW4/D. Medical examination of accused Sonu @ Sukhchain got conducted and doctor handed over one sealed parcel to IO by Const. Ravinder and was taken into possession by the IO.
13. PW5 is Dr. Sitanta Das who had medically examined accused Sonu @ Sukhchain vide MLC No.815/10 which is Ex. PW5/A. At the time of medical examination of accused Sonu @ Sukhchain, he SC No.47/10 Page 6 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other was conscious, oriented and vitals were normal. As per doctor's opinion, accused Sonu @ Sukhchain can commit sexual act. After examination, semen of accused Sonu @ Sukhchain was collected, packed and sealed with the seal of RTRM hospital and was handed over to police official alongwith sample seal.
14. PW6 is Dr. Sunil Dalal who got examined accused Narender Singh vide MLC Ex. 814/10 which is Ex.PW6/A.
15. PW7 is Sh. Manish Khurana, MM, Rohini, Delhi who got recorded the statement of prosecutrix under section 164 Cr.PC which is Ex. PW7/A. Correctness certificate of proceedings is Ex. PW7/B. The application moved by the IO regarding recording of statement under section 164 Cr.PC is Ex.PW7/C and copy of the statement of the prosecutrix under section 164 Cr.PC supplied to the IO is Ex.PW7/D and endorsement of Ld. MM is Ex.PW7/E.
16. PW8 is WCt. Anju who received DD No.64B and went alongwith ASI Suresh to bus stand Jharoda, Najafgarh where prosecutrix met them and statement of prosecutrix was got recorded by ASI Sudesh. On the direction of ASI Sudesh, she took the prosecutrix to RTRM hospital for her medical examination. After medical examination of the prosecutrix, doctor handed over to her three sealed parcels which were handed over to the IO vide seizure memo Ex. PW8/A. Thereafter ASI Sudesh sent W/const. Anju to go SC No.47/10 Page 7 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other alongwith rukka for registration of the case. After registration of the FIR, she handed over original rukka and copy of FIR to the IO.
17. PW9 is Const. Jitender who registered DD No.64B which is Ex. PW9/A.
18. The prosecutrix stepped into the witness box as PW10. She deposed that accused Narender had taken Rs. 3,000 as loan from her brother Sandeep. When her brother demanded the said amount back, accused Narender was not returning it. Her brother told her this fact and asked her to go to accused Narender for taking the said amount back as he had to go to village to attend the marriage of his sister's son. When prosecutrix asked him as to why he was not returning the said sum to her brother then accused Narender told that he shall return the money on 21st March. On 21st March, Accused Narender asked the prosecutrix to come Najafgarh bus terminal for collecting the money where accused Sonu was also present with accused Narender. Thereafter accused Narender stated that he shall give the money in his shop. On this prosecutrix went to the shop of accused Narender on foot as it was nearby. Accused Narender took out a purse from his pocket and sat on a chair and gave a stool to the prosecutrix to sit near the door of the shop. In the mean time, accused Sonu came inside the shop and closed the shutter. Accused Narender caught her from backside and pushed her down on the ground and closed her mouth. Thereafter accused SC No.47/10 Page 8 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other Sonu removed his clothes and broke the string of her salwar and removed her clothes also. Then accused Sonu raped her. Accused Narender kept her pushed on the ground during that time. When prosecutrix cried and shouted, they threatened to kill her and her family. They further stated that they would let her go only if she promised not to tell anyone about this incident. When prosecutrix came outside the shop, it was dark. She informed her brother and her mother at her house about the incident and on their direction, she made a call at 100 number. At that time, prosecutrix was sitting near Bahadurgarh bus stand. Police immediately came there and recorded her statement Ex.PW10/A. Thereafter police inspected the shop and taken her to hospital for medical examination.
19. PW11 is Sh. Sumit Dass, Ld. MM who got conducted TIP of accused Sonu @ Sukhchain on 27.03.2010 in which accused refused to participate in the TIP proceeding. An application for fixing the date for TIP is Ex.PW11/A. Statement of accused Sonu @ Sukhchain was recorded which is Ex.PW11/B. Correctness certificate of proceedings is Ex. PW11/C. Application for supplying of copy is Ex. PW11/D and endorsement is Ex. PW11/E.
20. PW12 is Sandeep who is a brother of the prosecutrix. He stated that in November 2009, accused Narender had taken Rs. 3,000/ from, him as loan. He knew accused Narender as he used to purchase vegetables from him. On 22.03.2010 and on 24.03.2010, he SC No.47/10 Page 9 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other had to attend the marriage of his nephew and his sister's son respectively, so he demanded back Rs. 3,000/ from accused Narender. He went to his village and asked his sister Santosh to collect the money from accused Narender and he gave the mobile number of his sister to accused Narender. On 21.03.2010, he came to know about this incident and he returned to Delhi by hiring a private vehicle in the evening and police got recorded his statement.
21. PW13 is Const. Ravinder Singh who alongwith accused Sonu @ Sukhchain went to RTRM hospital for his medical examination vide MLC No.815/10. After medical examination of accused, doctor handed over one sealed parcel containing semen of accused alongwith sample seal which were handed over to IO/ASI Sudesh who seized the same vide seizure memo Ex.PW13/A.
22. PW14 is WASI Sudesh who received DD No.64B and reached Subzi Mandi, Najafgarh, Main Road, Delhi alongwith lady constable Anju and recorded the statement of prosecutrix. She sent prosecutrix to DDU hospital alongwith lady const. Anju, where her medical examination got conducted and after medical examination, doctor handed over three sealed parcels which were already Ex. PW8/A to LConst. Anju and WASI Sudesh made her endorsement Ex.PW14/A. Site plan Ex. PW14/b was prepared by WASI Sudesh. Disclosure statements of both the accused persons are Ex. PW14/C and PW14/ and FSL report is Ex. PW14/E. SC No.47/10 Page 10 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other
23. Ld. Addl. PP for the State contended that prosecution has proved its case beyond reasonable doubt against the accused. All the prosecution witnesses including prosecutrix have supported the case of the prosecution and further more the medical evidence has also fortified the version of the prosecution case. Therefore the accused is liable to convicted for the offence for which he has been charged.
24. On the other hand, Ld. Counsel for the defence argued that prosecution story is full of material contradictions and the prosecutrix had made so many improvements in her earlier statements which makes it highly improbable to believe the prosecution story. The statement of prosecutrix is inconsistent through out and the deposition of the prosecutrix is not corroborated by any supporting evidence so accused be acquitted by giving benefit of doubt. It has been further contended that as per the prosecution story, the brother of the prosecutrix namely Sandeep had advanced loan of Rs.3,000/ to accused Narender and Sandeep, brother of the prosecutrix had gone to attend a marriage in his family in Haryana on 22/24.03.2010 and he had instructed the prosecutrix to collect the money from the shop of accused Narender. When prosecutrix visited the shop of accused on 21.03.2010, she was raped by coaccused Sonu @ Sukhchain but the prosecutrix had failed to produce any SC No.47/10 Page 11 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other document in evidence that her brother Sandeep had advanced a loan to accused Narender so there is no corroborative piece of evidence to support the prosecutrix.
25. It is further contended that on 21.03.2011 in order to receive alleged amount advanced by her brother to accused Narender the prosecutrix had gone to the shop of accused Narender but the testimony of the prosecutrix is made doubtful by the mere fact that brother of the prosecutrix had not given his statement before 04.06.2010 and refused to give his statement before the IO and further told that he would give his statement after consulting his mother. It is further contended that accused Narender is in a better financial situation then the brother of the prosecutrix as PW12 had admitted in his statement as well as in cross examination that he used to purchase vegetables from the shop of the accused Narender on credit and failed to make payment of the same in time as PW12 Sandweep was a casual labour. It is further submitted that PW12 had made various improvements in his statement recorded under section 161 Cr.PC as he had admitted in his cross examination that he had not told the police that he had gone to his village to attend the marriage of his nephew and son of his sister respectively and he had further improved his earlier statement that he returned to Delhi by hiring a private vehicle and he had advanced a loan to accused Narender in the month of October 2009. It is further submitted that prosecution had failed to prove the factum of marriage in the family SC No.47/10 Page 12 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other of Sandeep on the scheduled dates. Prosecution has also failed to explain how the mother and brother of the prosecutrix came to know about this incident. The prosecutrix had never informed her elder brother Sanjay on phone about the incident who was away to UP at that time.
26. It is further submitted that the prosecutrix had made following improvements in her earlier statements:
a. My brother demanded money back, accused Narender was not returning it.
b. My brother had told this fact and had asked me to go with him to Narender for asking the said amount back. c. That on 20th March of last years, I alongwith my brother went to the shop of Narender.
d. That accused Narender met us on the road in front of his shop. e. That when I asked him as to why he was not returning the said sum to my brother, he told that he would return the money on 21st March.
f. That my brother asked accused Narender to return the money to me.
g. That on asking of accused Narender my brother gave him telephone number of our house i.e 9540822731. h. That on 21st March, accused Narender called me several time on the said phone up to 4:00 pm. SC No.47/10 Page 13 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other i. That accused Narender took out his purse from his pocket and sat on the chair and he gave me a stoll to sit near the door of the shop and accused Narender caught hold of me from back side. j. That when I stared shouting accused Narender took a white cloth around his neck.
k. That when I cried and shouted they threatened to kill me and my family and further stated that they would let me go only if I promised not to tell anyone about the incident and I told them that I will not disclose this incident to anyone. l. That I had informed my mother and brother at my house about the incident and on their direction, I made a call at 100 number. m. That the accused Sonu broke the string of my salwar.
27. All the above said improvements were got confronted from her statement as such the conduct of the prosecutrix is highly abnormal as she is an illiterate lady and not known to the accused persons prior to that and instead of sending her husband or son, herself accompanied the accused which was stranger to her. So the testimony of the prosecutrix is improbable and against the natural course of human conduct so prosecution case is falacious and accused be acquitted by giving benefit of doubt and reliance placed on Tameezuddin @ Tammu Vs. State (NCT of Delhi) (2009) 15 Supreme Court Cases 566.
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28. It is further submitted that the prosecution case is full of material contradictions as police witnesses had given different time and version in prosecution story and the said improvements and contradictions in the statements of the witnesses makes the entire story as concocted one and the statements of the witnesses has created reasonable doubt in the prosecution version. So the accused is entitled for acquittal by giving benefit of doubt.
29. It is further contended that the prosecutrix is also not reliable as despite a scuffle being admittedly taken place between her and accused Sonu, she had not sustained any injury. She is stated to have been thrown on the floor by accused Narender with force but she had not sustained any injury. She had admitted that her bangles were broken in scuffle but she had not received any injury on her wrist and she had also not received any injury on her back side. The prosecutrix is stated to be present in the said shop for 34 hours and she is supposed to have raised alarm and should have sought for help as there were so many shops surrounding there. After coming out from the shop, she did not tell anything about the incident to anyone nor she went to police station though the police station is at a stone throw distance from the shop. Therefore the evidence of the prosecutrix is full of material discrepancies and does not inspire confidence and the prosecution evidence is full of contradictions and discrepancy and makes the prosecution story wholly improbable. So accused is entitled for acquittal by giving benefit of doubt and SC No.47/10 Page 15 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other reliance placed upon following judgments:
1. Lala @ Lal Chand Vs. State of Rajasthan 2004 Cr.L.J.1218.
2. Radhu Vs. State of M.P 2007 (4) Crimes 1 S.C.
3. Suresh N. Bhusare & Ors Vs. State of Maharashtra 1998 VI AD (S.C.) 277.
4. Joseph Vs. State of Kerla, AIR 2000 S.C.1608.
5. Ashu Vs. State of Haryana, RCR (Criminal) 512 (P& H).
6. Bibhishan Vs.State of Maharastra, 2008 (Cr.L.J.) 721.
7. Mussudin Ahmed Vs. State of Assam, 2009 (14) S.C. Cases 541.
30. It is further submitted that prosecution had not produced the best evidence available as mother and brother of the prosecutrix namely Sanjay were present in the police station but they had not been examined as a witness. Further more, material evidence i.e broken bangles, cloth which was used for pressing her mouth, gunny bag and other articles had not been recovered and best evidence available with the prosecution had not been brought on record and therefore adverse inference is to be drawn against the prosecution. Ld. defence counsel has placed reliance on Mussauddin Ahmed Vs. State of Assam (2009) 14, S.C.cases 541.
31. It is further submitted that there is a delay in lodging the FIR and delay has not been properly explained by the prosecution as how the delay of 78 hours had taken place between the incident and SC No.47/10 Page 16 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other recording of FIR. So accused is entitled for acquittal by giving benefit of doubt and reliance placed upon Thulia Kali Vs. State of Tamil Nadu, AIR 1973 S.C.501.
32. It is further contended that prosecutrix had failed to identify the accused persons as accused Sonu @ Sukhchain and Narender were not known to the prosecutrix before the incident and both the accused were arrested by prosecution at the instance of the prosecutrix. It belies the logic that if the accused persons arrested at the instance of prosecutrix then what was the need for conducting TIP by the prosecution. In this regard, ld defence counsel had relied upon Raju & Ors vs. State of M.P. AIR 2009 S.C.858.
33. It is further submitted that no independent witness had come forward to support the prosecution case as the prosecution had failed to examine any public witness who were present near the shop and the place where the statement of the prosecutrix was got recorded. Non examination of independent witness despite availability creates a doubt in the prosecution story which otherwise, support the defence version that false story was concocted while sitting in the PS. In this regard, ld. defence counsel had placed on record Tameezuddin @ Tammu Vs. State of NCT of Delhi (2009) 15 SCC 566 and (ii) Lal @ Lal Chand Vs. STate of Rajasthan 2004 Cr.LJ 1218.
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34. It is further submitted that prosecution had filed to connect the grouping of semen which was present on the salwar and vaginal swab of the prosecutrix. The semen of accused Sonu @ Sukhchain was taken out which was found putrefied by the FSL expert and presence of the semen on salwar had proved that sexual intercourse had taken place but it cannot be inferred that prosecutrix was raped. Therefore the presence of semen does not tantamount to prove the fact that prosecutrix was raped. In this regard, ld defence counsel had relied upon: Lala @ Lal Chand Vs. STate of Rajasthan 2004 Cr.LJ 1218 and Kundan Lal & Ors Vs State (Delhi High Court) 2002 (2), JCC 873 and Tameezuddin @ Tammu Vs. Staste of NCT of Delhi (2009) 15 SCC 566.
35. It is further submitted that prosecutrix had made false statement on every step so the allegations leveled against the accused persons are totally baseless, false and fabricated. In this regard, ld defence counsel had relied upon: Radhu Vs. State of MP 2007 (4) Crimes I, SC.
36. It is further submitted that prosecutrix had received no injury and there was no scuffle and no clothes of the prosecutrix are torn and prosecutrix was fully grown woman cannot be raped and in the circumstances, it appears that prosecutrix was a consenting party. In this regard, ld defence counsel had relied upon: Pratap Mishra & Ors Vs. State of Orissa, AIR 1977 SC 1307.
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37. It has also been observed in Radhu Vs. State of Madhya Pradesh (2007) 12 SCC 57 as under:
It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a "rape", if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also SC No.47/10 Page 19 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other been rare instances where a parents has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
38. With above said conspectus of settled law in mind, I would like to discuss the evidence led by prosecutrix to prove the case.
39. PW10/Prosecutrix while appearing deposed that accused Narender had taken Rs. 3,000/ from her brother Sandeep and when Sandeep demanded back said amount then accused Narender not returned it. On 20.03.2010 prosecutrix accompanied her brother Sandeep and accused Narender had stated that he will return the amount on 21.03.2010 and Sandeep also gave his telephone number i.e 9540822731 to the accused. On 21.03.2010, accused Narender is stated to have called the prosecutrix many times upto 4:00 pm to collect the money. Prosecutrix had further deposed that when she went to Najafgarh bus terminal, she found accused Narender alongwith one Sonu and accused Narender asked the prosecutrix to accompany them to his shop as he will hand over the money to the prosecutrix in the shop.
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40. The prosecutrix had further deposed that there she was made to sit on the stoll and in the mean time accused Sonu came inside the shop and accused Narender pushed her down on the ground and accused Narender clamped the mouth of the prosecutrix and accused Sonu removed his clothes and committed rape with the prosecutrix. And when prosecutrix shouted for help then accused threatened her to kill her as well as her family. Prosecutrix further deposed that she came out from the shop and informed her brother and mother who were at her house and they called police.
41. But during cross, she had sated that she is having a son namely Rinku aged about 1718 years. Prosecutrix had admitted that on 22.03.2012 and 24.03.2012, marriage in her family was scheduled to be performed and her children and mother had gone for the said marriage before the incident. She had admitted that her brother and mother met her in the police station at about 8:00 pm or 9:00 pm on 21.03.2010 and statement of her brother was recorded on that day. Prosecutrix had further admitted in cross that she had given information to her elder brother Sanjay also. She had further denied the suggestion that her mother and Sanjay had not visited the police station on 21.03.2012. She had further admitted that her husband had come in the police station on the same day. Prosecutrix had admitted that her bangles were broken during the scuffle but she had not sustained any injury on her wrist. She had admitted that she had not stated in her statement Ex.PW10/A that her brother Sandeep had SC No.47/10 Page 21 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other demanded the amount of loan from accused Narender but accused Narender was not returning the said amount. Prosecutrix had further improved her deposition in the court to the extent that she had stated that she had gone to the shop of accused on 20.03.2012 alongwith her brother Sandeep but this fact is not mentioned in the statement Ex.PW10/A. She had further improved her version regarding her asking from the accused Narender as to why he was not returning the loan amount which was given to the accused by her brother. She had further improved her version regarding giving the mobile number by Sandeep to accused Narender.
42. PW12 Sandeep had deposed that accused Narender had taken loan of Rs. 3,000/ from him as the witness Pw12 used to purchase vegetables from accused Narender. This witness demanded back Rs. 3,000/ from accused Narender as marriage function was to be solemnised on 22.03.2010 and 24.03.2010 in the family. This witness has deposed that on 21.03.2010, he came to know about this incident and returned to Delhi in a private vehicle and police had recorded his statement in the PS. This witness was not recollecting the date on which date the loan was advanced and no witness was there to the said loan transaction. This witness has further stated that the STD owner Pawan had asked this witness to contact prosecutrix on her mobile. This witness has stated that his brother in law(husband of the prosecutrix) had not come to the police station and nor this witness had called his brotherinlaw.
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43. PW14 is WASI Sudesh and prosecutrix met her on the road and statement of the prosecutrix was got recorded at the bus stand and after sending rukka through L/Const. Anju, IO alongwith prosecutrix went to the spot and door of the shop was found open and no one was found present inside the shop and thereafter L/Const. Anju took the prosecutrix to RTRM hospital for her medical examination. IO had deposed that no family member of the prosecutrix came in the hospital till they remained there. This witness/IO had further deposed that one Sandeep came in the police station and IO did not recorded his statement as Sandeep had refused to give his statement stating that he would give his statement after consulting his mother and Sandeep got recorded his statement to the IO on 04.06.2010. This witness further deposed that husband of the prosecutrix had not came in the police station at any point of time. This witness has further deposed that she did not know Sanjay, brother of the prosecutrix as he had not appeared before her at any point of time. This witness has further deposed that no broken bangles were found lying at the spot.
44. From the conjoint reading of the statements of PW10, PW12 and PW14, it is crystal clear that there are so many contradictions in the statement of these witnesses in as much as the prosecutrix has stated that her mother, brother Sandeep and her husband were present in the police station on 21.03.2010 and police SC No.47/10 Page 23 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other recorded the statement of brother of the prosecutrix namely Sandeep, whereas PW10 and PW14 had stated that husband of the prosecutrix had not come to the police station on 21.03.2010 and never come in the police station at any point of time. IO PW14 has deposed that Sandeep (PW12), brother of the prosecutrix had come in the night on 21.03.2012 and he refused to get his statement recorded as Sandeep (PW12) had stated that he would consult his mother before recording his statement. So the statement of these witnesses are contradictory to each other which may make the case of the prosecution doubtful and improbablise the same.
45. So fas as the motive of the alleged offence that the prosecutrix had gone to get the loan advanced by his brother Sandeep to accused Narender appeared to be far fetched as the PW12 had gone to the police station on 21.03.2010 in the night and he refused to get his statement recorded as disclosed by PW14 during her deposition and Sandeep got his statement recorded on 04.06.2010 i. e after a delay of two and half months. The prosecutrix had admitted that her children were also present at her residence and the natural conduct is that some adult male member should have gone to collect the said loan amount from the said accused. But despite sending any male member, prosecutrix had gone to collect the alleged loan. Act of the prosecutrix going to the shop of accused Narender in order to collect the loan of Rs.3,000/ advanced by Sandeep is falsified, as such, the delay in getting his statement SC No.47/10 Page 24 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other recorded by PW12 makes the motive for the offence diluted to a great extent and further improbablise the case of the prosecution.
46. Further evidence is not placed on record to connect that accused had made call to the prosecutrix time and again on her mobile number regarding payment of the said loan amount. Prosecutrix had admitted that her bangles were broken during scuffle and said bangles were lying on the spot. But investigation agency had neither collected the alleged broken bangles or any other articles. This missing link in the evidence makes the case of the prosecution highly improbable, in as much as the motive for alleged offence i.e alleged loan of Rs.3,000/ came in the story, after two and half months, as discussed herein above.
47. The presence of the semen on the salwar of the prosecutrix leads to the inference that a sexual intercourse had taken place with the prosecutrix. No inference cannot be drawn that the prosecutrix has been raped as the prosecutrix being married lady had assess to her husband. So the presence of the semen on the salwar of he prosecutrix cannot prove that the prosecutrix was raped by the accused. So is the ratio of Lala @ Lal Chand (supra), Kundan Lal (supra) and Tameezuddin @ Tammu (supra). There can be no dispute about the ratio of law laid down by various case laws relied upon by the defence counsel in respect of motive, contradictions in deposition and delay in lodging FIR etc. SC No.47/10 Page 25 of 27 SC No. 47/10 FIR No.129/10 PS: Najafgarh State Vs. Sonu @ Sukhchain and other
48. No doubt, it is settled law that absence of injuries on the person of a rape victim is no ground to disbelieve her. Every female reacts differently when sexually assaulted, some just freeze, some get hysterical, some fight it, out some submit weakly. The court is not to infer anything adverse from any or absence of these factors. But the story of the prosecutrix must inspire confidence. Her uncorroborated sole testimony is enough, provided it is trust worthy.
49. Therefore, it is true that to hold the accused guilty for offence, the solitary evidence of the prosecutrix is sufficient for providing the same inspire confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But in the case in hand, there is sufficient lacunae which has already been projected herein above, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the accused guilty of said offence. Indeed, there are several significant variations in the testimony of the prosecutrix including the contradictions and discrepancies as discussed herein above.
50. From the above discussion, I am of the opinion that prosecution has failed to prove the case against the accused persons that they had committed rape upon the prosecutrix.
SC No.47/10 Page 26 of 27 SC No. 47/10 FIR No.129/10PS: Najafgarh State Vs. Sonu @ Sukhchain and other Therefore, the accused are hereby acquitted of charge under section 342/376(2)(g)/506/34 IPC by giving the benefit of doubt.
51. Accused Sonu @ Sukhchain and Narender are, however, directed to furnish fresh bail bond in sum of Rs. 20,000/ with one surety in the like amount each in terms of Section 437A Cr.P.C undertaking to appear if called, before Appellate Court as mandated therein. Personal bond and surety bond are to be filed and be accepted for a period of six months as provided under Section 437A Cr.P.C.
52. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya)
th
On the 8 Day of June 2012 ASJ/ Dwarka Courts
New Delhi/08.06.2012
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