Delhi District Court
State vs Somveer on 14 December, 2012
SC No.27/12
FIR No.167/11
State Vs Somveer
PS Kapashera
U/s 366/376 IPC
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 27/12
FIR No. : 167/11
Police Station : Kapashera
Under Section : 366/376 IPC
Received on assignment : 18.02.2012
Reserved for orders on : 10.12.2012
Judgment announced on : 14.12.2012
State Vs. Somveer
S/o Shri Udhraj
aged about 24 years
R/o Sapera ki Jhuggi, Rawata More,
Najafgarh, Delhi.
J U D G E M E N T
1. Accused has been sent for trial u/s 366/376 IPC.
2. The brief facts of the prosecution story is that the prosecutrix 'S' got recorded her statement in PS Kapashera on 26092011 wherein she has alleged that she is semi literate and Page 1 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC residing with her parents and working in a plastic godown. It is further alleged that on 12072011 at about 3 pm, accused, maternal brother of the prosecutrix, came to the house of the prosecutrix and enticed her away for going out for a trip and the accused took the prosecutrix to Haridwar and on next day, accused took the prosecutrix at village Basai, Gurgaon where at about 4 am, in bushes situated at a lonely place, committed rape upon the prosecutrix. It is further alleged that accused also stated to have promised to get married with her. It is further alleged that accused also threatened the prosecutrix and on account of fear, she could not disclose this incident to anybody. The prosecutrix contacted the accused and he denied for marriage with prosecutrix and prosecutrix disclosed this incident to her parents and they advised to sort out the matter in the panchayat but no decision has been taken by the panchayat and neither the accused has got married with the prosecutrix nor any legal action was taken against the accused. Thereafter the prosecutrix was taken to hospital for medical check up where she was examined but prosecutrix has refused to get herself examined in Gynecological Department. Statement of prosecutrix was recorded u/s 164 Cr.P.C. but the complainant could not point out the place where offence was committed. Accused was arrested. During investigation, Page 2 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC statement of witnesses were recorded. Site plan could not be prepared. Parcels were sent to FSL. Charge sheet was filed.
3. After supplying copies to the accused as per law, case was committed to the court of sessions.
4. After due deliberation, charge under Section 366/376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered nine witnesses in all in support of its case namely:
PW1 W.Ct. Mamta
PW2 Prosecutrix (name withheld as per dictum of
Hon'ble Apex Court)
PW3 Dr. Neelam Verma
PW4 HC Ajay Kumar
PW5 Dr.Kumar Abhishek
PW6 ASI Jagdish Singh
PW7 Shri Arul Varma
PW8 SI Vijender Kumar
Page 3 of 23
SC No.27/12
FIR No.167/11
State Vs Somveer
PS Kapashera
U/s 366/376 IPC
PW9 WASI Nirmala
6. PW1 is W.Ct.Mamta, who has deposed that on 29092011 on the direction of IO, she had taken the prosecutrix Ruksana to Safdarjung Hospital for medical examination and after medical examination, she handed over the prosecutrix along with MLC No.28117 to the IO, who recorded her statement and on next day,i.e. 30092011, she along with IO, HC Ajay and prosecutrix Rukhsana went to Rawta Mode, Najafgarh where accused was identified by prosecutrix and he was apprehended, interrogated and arrested.
7. PW2 is the prosecutrix Rukhsana whose testimony will be discussed in the later part of the judgment.
8. PW3 is Dr.Neelam Verma who had examined the prosecutrix on 26092011 in terms of Ex.PW3/A MLC but the prosecutrix has refused for her Gynae examination.
9. PW4 is HC Ajay Kumar who deposed that on 29092011, he along with IO WASI Nirmala, lady Ct. Mamta and prosecutrix went to jhuggi Rawta More, Najafgarh and accused was arrested in his presence vide arrest memo Ex.PW2/C and his personal Page 4 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC search was taken vide memo Ex.PW2/D.
10. PW5 is Dr.Kumar Abhishek who had medically examined the accused in terms of MLC vide Ex.PW5/A.
11. PW6 is ASI Jagdish Singh who deposed that on 26092011 on receipt of rukka from SI Vijender Kumar, he recorded FIR No.167/11, copy of same is Ex.PW6/A. He had also recorded DD No.29A regarding registration of FIR.
12. PW7 is Shri Arul Varma, MM, Dwarka Courts who deposed that IO moved an application Ex.PW7/A for recording of statement of prosecutrix u/s 164 Cr.P.C. and on 27092011, he recorded the statement of prosecutrix Ex.PW1/C. Proceedings regarding recording of statement of prosecutrix is already (Ex.PW2/B), are Ex.PW7/B and IO moved an application, Ex.PW7/C for supplying the copy of statement.
13. PW8 is SI Vijender Kumar who deposed that on 26092011, he recorded statement of prosecutrix Ex.PW2/A and he made his endorsement Ex.PW8/A and he had sent the same for registration of FIR. Thereafter the investigation of this case was assigned to WASI Nirmala.
Page 5 of 23 SC No.27/12 FIR No.167/11State Vs Somveer PS Kapashera U/s 366/376 IPC
14. PW9 is WASI Nirmala who has stated that investigation of this case was assigned to her on 26092011 and 27092011, she arrested the accused at the instance of prosecutrix vide arrest memo Ex.PW2/C, his personal search was taken vide memo Ex.PW2/D. Thereafter accused was medically examined and she seized one sealed parcel along with sample seal vide seizure memo Ex.PW9/A and statement of prosecutrix u/s 164 Cr.P.C. was got recorded by Ld. MM. Prosecutrix could not identify the place of occurrence so the site plan was not prepared and thereafter she deposited the case property with MHC(M) and she recorded the statement of witnesses and filed the charge sheet.
15. Thereafter the accused was examined under Section 313 Cr.P.C. and accused led DE.
16. In Defence Evidence, accused has led evidence of DW1 Shri Udai Raj, DW2 Shri Om Prakash, DW3 Shri Tinku and DW4 Shri Ramesh.
17. DW1 is the father of accused, who is also the real brother of mother of prosecutrix, has deposed that mother of Page 6 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC prosecutrix was his real sister and she got married with a man of other community and he was against that marriage and due to this reason, mother of prosecutrix had grudge against him and she had threatened him that either she would falsely implicate him or his son and due to this reason, his son has been falsely implicated in this case. DW2, DW3 and DW4 also deposed on the lines of DW1.
18. The prosecution has not led any evidence that prosecutrix is a minor on the date of commission of offence, so in the absence of evidence and in view of the fact that prosecutrix has given her age as 18 years while getting her statement recorded before the Ld. MM. The prosecutrix has admittedly major on the date of commission of offence.
19. Now the question arises whether the accused has committed any sexual assault on the prosecutrix or if such sexual act is committed by the accused, the prosecutrix is a consenting party in having sex with the accused or no offence of rape was ever committed by the accused on the prosecutrix.
20. To determine the said question, prosecutrix has led evidence of PW2 Prosecutrix.
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21. In her examination the prosecutrix has deposed that on 12th day of some month of year 2011 at about 8 am, accused met prosecutrix and he took her to Hardwar by enticing her and brought her back to Village Basai, Gurgaon and on next day at about 4 am at some deserted place near bushes, accused committed rape on the prosecutrix, without her consent and when prosecutrix objected to the said act, accused threatened her to kill her. It is further deposed that she went to some panchayat and then she was taken to her house. Matter was put up before Panchayat. She has further admitted that accused has promised to marry her but he failed to perform his promise and after two months, she was taken to PS where complaint was recorded vide Ex.PW2/A, she was medically examined and her statement u/s 164 Cr.P.C. was recorded vide Ex.PW2/B.
22. In cross she has admitted that accused took her in the bus then they boarded a train and reached Hardwar. She further admitted that there were many passengers in the bus including male and female and she further deposed that accused had administered something intoxicating substance and the accused has smeared some ash on her forehead. She has further denied the suggestion that she has not got herself Page 8 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC medically examined as no rape was committed on her.
23. It is settled law that conviction can be sustained on the sole testimony of prosecutrix in a rape case if such testimony inspires confidence and appears to be trustworthy but if some doubts are there regarding the veracity of the statement of prosecutrix then corroboration may be sought by the Court.
24. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability Page 9 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. In this regard, I found support from Vimal Suresh Kamble v. Chaluverapinake Apal S.P.& Anr. , AIR 2003 SC 818, Vishnu v. State of Maharashtra, AIR 2006 SC 508.
25. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. In this regard, I found support from Suresh Bhusare & others v. State of Maharashtra AIR 1998 SC 3131.
26. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, the Hon'ble Supreme Court while dealing with the issue held as under :
"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 Page 10 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC could not be believed."
27. In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858, the Hon'ble Supreme Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:
"......... 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 agaisnt the possibility of false implication...... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
28. In Tameezuddin @ Tammu v. State (NCT of Delhi) (2009) 15 SCC 566, the Hon'ble Supreme Court held has under:
"It is true that in a case of rape the evidence of the prosecutrix must be given pre dominant consideration, but to hold that this evidence has to be accepted even if the story is Page 11 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. "
29. It is also settled principle of law that even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of ''easy virtues'' or a woman of ''loose moral character'' can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. In this regard, I found support from State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393 and State of UP v. Pappu alias Yunus & Anr., AIR 2005 SC 1248.
30. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of Page 12 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC witnesses which are not of a substantial character.
31. However, even in a 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. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. 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 the benefit of every reasonable doubt.
32. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can Page 13 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
33. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/ unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.
34. The instant case is required to be decided in the light of the aforesaid settled legal propositions.
35. Now adverting to the facts of the present case, the prosecutrix has alleged that she has been enticed away by the accused and taken to Hardwar and thereafter from Hardwar, she has been brought back to village Basai, Gurgaon and on next date she was raped in the morning. She has further deposed that accused has promised to marry before committing rape her but Page 14 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC in the statement Ex.PW2/B she has not stated that accused has promised to marry her at the time of committing rape. She has also stated in Ex.PW2/B that the accused has threatened her not to disclose the said incident to anybody otherwise she will be killed whereas while deposing in the court she has testified that accused has committed rape without her consent and he has threatened her to kill and her family and due to this fear she has not disclosed this fact to her parents as stated before the police in Ex.PW2/A and Ex.PW2/B (statement u/s 164 Cr.P.C.) whereas while deposing in court she has stated that she went to some panchayat and matter was put up before Panchayat and the said version of the prosecutrix as deposed in court, is not detailed in her statement made before the Ld. MM and the police.
36. Prosecutrix was roaming along with the accused from Delhi to Hardwar and Hardwar to Gurgaon and during journey she has not raised any alarm and has not raised her voice regarding the alleged kidnapping. The delay in reporting the matter to the police she has tried to explain by improving her version made before the police by stating in the court that matter was pending before some panchayat. This version of prosecutrix has come for the first time before the court. But no evidence of any person that any such panchayat was convened Page 15 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC to prove the factum of any such pendency of complaint of prosecutrix made by the complainant against the accused. Therefore, the testimony of the prosecutrix is full of contradictions and discrepancy and the prosecutrix has improved her version which requires corroboration but such corroboration is not present in this case.
37. Now coming to the second point. The question that falls for the consideration is that whether the accused committed the alleged sexual intercourse with the prosecutrix holding out a promise for marriage and this act will amount to rape or not? Section 375 of IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
"FirstAgainst her will.
SecondlyWithout her consent. ThirdlyWith her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
FourthlyWith her consent, when the man knows that he is not her husband, and that her consent is given because she believes Page 16 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC that he is another man to whom she is or believes herself to eb lawfully married. FifthlyWith her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
SixthlyWith or without her consent, when she is under sixteen years of age."
38. The definition of consent has been provided under section 90 IPC which has been reproduced as under:
Section 90Consent known to be given under fear or misconception.A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe Page 17 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC that the consent was given in consequence of such fear or misconception; or Consent of insane personif the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequences of that to which he gives his consent; or Consent of childunless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
39. First of all it may be noted that the prosecution has not proved that the prosecutrix has been revished as her statement does not inspire confidence and there is no medical evidence on record to support the prosecution case that the prosecutrix was raped otherwise also the delay in lodging the FIR has not been explained by prosecution and the only excuse putforth by the prosecutrix is that the matter was pending before Panchayat but no evidence has been led to prove that any panchayat was convened regarding complaint of the prosecutrix, therefore, even if it is presumed that any sexual act as alleged was committed by the accused, the accused has Page 18 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC promised to marry the prosecutrix or not and nowthe question arises whether the alleged sexual act, which the prosecution has not proved on record, has been committed by the accused on the pretext of getting married with the prosecutrix can tantamount to commission of rape.
In this regard the observation made in Yedla Srinivasa Rao vs State of A.P http://indiankanoon.org/doc/1094063/ are relevant and reproduced hereunder:
This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. In this connection, reference may be made to a decision of the Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal & Anr., (1984) Cri.L.J. 1535. In that case it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. It was also observed Page 19 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC that if a fully grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact and it was held that Section 90 IPC cannot be invoked unless the court can be assured that from the inception accused never intended to marry her. Therefore, it depends on case to case that what is the evidence led in the matter. If it is fully grown up girl who gave the consent then it is different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked.
40. I am of the opinion that the prosecutrix was major and the accused was her cousin and already married, therefore, Page 20 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC the marriage could not be performed as per customs prevalent in the social order to which the accused and the prosecutrix belonged,otherwise, as per the law laid down in the Yedla Srinivasa Rao vs State of A.P it is always matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intends to fulfil. The Apex Court in the judgment Udav v. State of Karnataka (2003) 4 SCC 46 has observed that for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, no straitjacket formula can be laid down but following factors are to be kept in mind (i) where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to; (ii) she was conscious of the fact that her marriage was difficult on account of caste considerations; (iii) it was difficult to impute to the appellant knowledge the prosecutrix had consented in consequences of a misconception of fact arising from, his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix.
41. As such the prosecutrix being major and as per her testimony she knew accused being her relative cannot marry Page 21 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC her, otherwise, also there is no evidence to infer that accused hold any promise of marry, therefore, it cannot be said that accused has promised the prosecutrix to marry as alleged.
42. Therefore testimony of the prosecutrix is full of material contradictions which the prosecution has failed to explain and as such the said contradictions and vital discrepancies has demolished the case of the prosecution so far as allegations leveled by the prosecutrix against the accused that she has been raped. Testimony of prosecutrix does not inspire confidence and appears to be based on varied versions made before the various forums.
43. For the abovesaid reasons as detailed, accused is hereby acquitted of all the charges under Section 366/376 IPC. His Bail bond and surety bond stand cancelled and his surety is discharged. Original documents, if any, of surety be returned and endorsement, if any, on the documents be cancelled.
44. Accused Somveer is, however, directed to furnish fresh bail bond in sum of Rs. 20,000/ with one surety in the like amount in terms of Section 437A Cr.P.C. undertaking to appear if called, before Appellate Court as mandated therein. Personal Page 22 of 23 SC No.27/12 FIR No.167/11 State Vs Somveer PS Kapashera U/s 366/376 IPC 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.
45. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya) on the 14th December, 2012 ASJ/ Dwarka Courts New Delhi/14.12.2012 Page 23 of 23