Delhi District Court
State vs Pradeep -:: Page 1 Of 52 ::- on 28 February, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
State
Versus
Mr. Pradeep
Son of Mr.Deen Dayal Paswan,
Resident of V-101, Bhagwati Vihar,
Sector-A, Uttam Nagar, Delhi.
First Information Report Number : 593/11
Police Station Uttam Nagar,
Under sections 328, 376, 420 and 506 of the Indian Penal Code.
Date of filing of the charge sheet before : 16.11.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 07.12.2012.
in the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 28.02.2014.
Date of judgment : 28.02.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr.K.R.Kaushik.
Mr. Zainul Abiddin, counsel for the complainant/prosecutrix.
Ms.Shubra Mehnidiratta and Ms.Poonam Sharma, counsel
for the Delhi Commission for Women.
**************************************************************
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar,
Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 1 of 52 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self- sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted on the pretext of marriage and whose trust is betrayed by a man in whom she reposes maximum trust so much so as to surrender herself before him into a physical relationship and then he walks out of her life, giving threats to kill her.
2. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 2 of 52 ::-
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sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
3. Mr.Pradeep, the accused, has been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under sections 328/376/420/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on unknown date and month, 3-4 years back from the date of lodging of the complaint at C-500, J.J.Colony, Hastaal Road, Uttam Nagar, New Delhi, within the jurisdiction of Police Station Uttam Nagar, he offered prosecutrix (name withheld to protect her identity) one Limca, a cold drink, mixed with intoxicated material and committed rape upon her and thereafter he took her nude photographs and started blackmailing her and continuously raped her at different places up to 16.08.2011 on the pretext of marriage with her. He threatened the prosecutrix not to report the matter to police otherwise he will defame her by putting her nude photographs on the net as well as throw acid Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 3 of 52 ::-
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on her face.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 16.11.2012 and after its committal, the case was assigned to the Court of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 07.02.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi on 05.01.2013.
CHARGE
5. After hearing arguments, charge for offence under sections 328, 376, 420 and 506 of the IPC was framed against the accused vide order dated 20.12.2012 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 12 witnesses i.e. Dr. Sanjay Ray, who had medically examined the accused, as PW1; the prosecutrix as PW2; HC Shailender Rathee, witness of investigation, as PW3; HC Narender Kumar, witness of investigation, as PW4; Ms. Shivali Sharma, learned Metropolitan Magistrate, Mahila Court, Tis Hazari Courts, Delhi as PW5; Dr. Avdhesh, Medical Officer, who had medically examined the prosecutrix, as PW6; SI Om Prakash, the Duty Officer who had recorded the formal FIR of the case, as PW7; ASI Arjun Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 4 of 52 ::-
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Prasad, the witness of arrest of accused, as PW8; Ms.Shabnam, friend of the prosecutrix, as PW9; Ms. Savitri, mother of the prosecutrix, as PW10; ASI Sushma, the investigation officer of the case, as PW11; Dr. Monika Suri, who has deposed on behalf of Dr. Sarabjeet, who had examined the prosecutrix, as PW12.
7. The accused has preferred not to cross examine PWs 1, 5, 6, 7, 8 and 12 and therefore their evidence can be presumed to have been admitted as correct by the accused since it remains uncontroverted and unrebutted.
8. On 03.06.2013, PW SI Manish Kumar was dropped by the prosecution form the list of witnesses on the statement of the Additional Public Prosecutor.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
9. In his statement under section 313 of the Cr.P.C., recorded on 16.08.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. He has been falsely implicated in the present case just to extort money. The accused expressed his desire to lead evidence in his defence.
DEFENCE EVIDENCE
10. The accused examined Mr.Vipin Bansal @ Sharukh as DW1. He is the same man, who as the version of the prosecutrix, had introduced the accused to the prosecutrix.
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 5 of 52 ::-
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ARGUMENTS
11. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed by both the sides.
12. The Additional Public Prosecutor for the State, assisted by the counsel for the prosecutrix, has requested for convicting the accused for having committed the offence under sections 328, 376, 420 and 506 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
13. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which otherwise is also without the details. There are several contradictions in the various statements of the prosecutrix. The prosecutrix herself was not in a position to marry as she was already married and therefore, the question of the accused promising to marry her is wrong.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
14. The prosecution case unveils with the prosecutrix (PW2) going to Police Station Uttam Nagar on 01.10.2011 and giving her written complaint (Ex.PW2/A). On 05.12.2011, the Reader to the SHO had brought the rukka for registration of the FIR (Ex.PW7/A). On the basis of the same, Duty Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 6 of 52 ::-
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officer SI Omparkash (PW7) lodged the FIR (Ex.PW7/A) and issued the certificate under section 65 B Evidence Act (Ex.PW7/B). On 05.12.2011, SHO PS Uttam Nagar handed over the complaint (Ex.PW2/A) to ASI Sushma (PW11), which was registered on the complaint of prosecutrix. Prosecutrix also filed a complaint case (Ex.PW2/B) in which the FIR was lodged. After receiving the FIR, ASI Sushma inspected the file and recorded the statements of witnesses. She searched for the accused, who was not found. The statement of the prosecutrix under section 164 Cr.P.C (Ex. PW5/A) was recorded by Ms. Shivali Sharma, learned Metropolitan Magistrate (PW5) on the application of the IO for recording the statement under section 164 of the Cr.P.C (Ex.PW5/B) and copy of the statement was given to the IO on the application (Ex.PW5/C). The prosecutrix (PW2) was taken to DDU hospital by ASI Sushama (PW11) where she was medically examined by Dr. Avdesh, Medical Officer (PW6) and by Dr. Sarbjeet (who has since left the services of the hospital) vide MLC (Ex.PW6/A). The relevant part of the MLC prepared by D.Sarbjeet has proved by Dr. Monika Suri (PW-12). No sample could be preserved as the alleged last contact was on 16.08.2011. On 08.12.2011, IO again went in search of accused on 08.12.2011 at Bhagwati Garden, Uttam Nagar, where IO met with Mr. Neeraj, brother of accused, who told her that his parents along with his brother Pradeep(accused) had gone to village. Thereafter, IO reached the PS and gave all the information to SHO. Thereafter for the arrest of accused Pradeep, SHO handed over the file to SI Manish Tyagi (dropped by the prosecution), HC Shailender Rathee (PW3) and HC Narender (PW4). They all went to Bihar for the arrest of the accused. Accused was arrested vide arrest memo (Ex.PW3/A) and his personal search was taken vide personal search memo (Ex.PW3/B). The accused was Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 7 of 52 ::-
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medically examined by Dr. Sanjay Rai (PW1) CMO at DDU hospital vide MLC (Ex.PW1/A). The caste certificate of Mr. Brajesh Kumar, father of the prosecutrix, (Ex. PW2/C) was produced in the Court.
15. As per the allegations of the prosecution, accused Mr.Pradeep on unknown date and month 3-4 years back from the date of lodging of the complaint at C-500, J.J.Colonny Hastaal Road, Uttam Nagar, he offered the prosecutrix (PW2) one limca, a cold drink, mixed with intoxicated material and committed rape upon her and thereafter he took her nude photographs and started blackmailing her and continuously raped her at different places up to 16.08.2011 on the pretext of marriage with her. He threatened prosecutrix (PW2) not to report the matter to police otherwise he will defame her by putting her nude photographs on the net as well as throw acid on her face.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
16. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 8 of 52 ::-
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permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
17. Under this sphere, I now proceed to test the submissions of both the sides and give findings on the issues involved.
IDENTITY OF THE ACCUSED
18. There is no dispute regarding the identity of the accused Mr.Pradeep who has been identified by PW2-the prosecutrix, PW9- Ms.Shabnam, friend of the prosecutrix, PW10-Ms.Savitri, mother of the prosecutrix as well as the police witnesses of investigation. It is also not in dispute that they were known to each other prior to the lodging of the FIR. Accused is also named in the FIR as well the complaint case filed by the Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 9 of 52 ::-
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prosecutrix.
19. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
20. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. During her evidence, the prosecutrix has given her age as about 24 years. In her MLC, she has disclosed her age as 23 years. As per the prosecution, she was a major at the time of the alleged incident.
21. Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
22. PW1, Dr.Sanjay Rai, had medically examined the accused and has proved the MLC of the accused (Ex.PW1/A). He has not been cross examined by the accused.
23. It is mentioned in the MLC of the accused (Ex.PW1/A) that "There is nothing to suggest that person is not capable of sexual activity"
24. Even on physical examination, the doctor has found that the secondary sexual character is present.
25. Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape. Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 10 of 52 ::-
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MLC OF THE PROSECUTRIX
26. PW6, Dr.Avdhesh, had deposed that the prosecutrix had been medically examined on 17.12.2011 vide MLC (Ex.PW6/A). She was referred to Gynae Emergency where she was medically examined by Dr.Sarbjeet, who has since left the service of the hospital. The relevant part of MLC (Ex.PW6/A) prepared by Dr.Sarabjeet has been proved by Dr.Monika Suri (PW12).
27. It is clear from the MLC of the prosecutrix (Ex.PW6/A) that the prosecutrix had told the doctor in the history that she had been sexually assaulted by an unknown person.
28. The prosecutrix did not have any fresh external injury. She was conscious/oriented and vitals were maintained. There was old hymen rupture. There was no sign of external fresh injury on whole body or perineum. No sample could be preserved as the last contact was on 16.08.2011.
29. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case. She does not have any fresh injury on her body and had she been raped, there would have been injuries on her body and private parts.
30. However, this contention is not tenable as the medical evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix or Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
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the eye witness which is of utmost importance and the judgment is mainly based on that evidence.
31. It cannot be ignored, although, that the prosecutrix has failed to disclose the name of the accused/culprit in the history to the doctor and only told that it was an unknown person. This fact makes her evidence shaky and the possibility of false implication of accused Mr.Pradeep cannot be ruled out.
DELAY IN FIR
32. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
33. It is claimed by the accused that as the FIR (Ex.PW7/A) has been lodged on 05.12.2011 at 13:00 hours while the allegations made by the prosecutrix are that about three years prior to her lodging the complaint (Ex.PW2/A) the accused had physical relations with her on the pretext of marriage and thereafter continued to have physical relationship with her. The delay in lodging of the FIR has been not explained by the prosecution.
34. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the fear of the accused. She had given her complaint (Ex.PW2/A) to the police on 01.10.2011, then had to file a complaint case (Ex.PW2/B) and only Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 12 of 52 ::-
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then the FIR was lodged.
35. As per the complaint, Ex.PW2/A which is made on 01.10.2011, it is mentioned that the date and time of the first offence is about 3 years earlier. This would mean that the physical relation between the accused and the prosecutrix for the first time happened in October, 2008.
36. The prosecutrix in her MLC (Ex.PW6/A) has told in the history that there was sexual exploitation for 3 years and the last contact was on 16.08.2011.
37. The prosecutrix, in her evidence before the Court recorded on 04.02.2013, has deposed that the first incident was about 3 years ago. This would mean that it was in February, 2010.
38. The FIR has admittedly been lodged on 05.12.2011 at 13:00 hours.
39. If October, 2008 is taken as the period the accused established physical relations with the prosecutrix for the first time as per Ex.PW2/A, the same shows that there is a delay of three years in lodging the FIR.
40. If the alleged offence, as per the evidence of the prosecutrix is taken, it was committed in February, 2010. Then there is a delay of one year and eight months in lodging of the FIR.
41. The alleged last physical contact was on 16.08.2011, as per the Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 13 of 52 ::-
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MLC (Ex.PW6/A). Then there is a delay of one month and 16 days in lodging of the FIR.
42. In her cross examination, the prosecutrix has deposed that the incident of three years as mentioned in her examination in chief pertains to the end of the year 2008 and problems started from the year 2010. If 2010 is taken into consideration, then there is a delay of about one year.
43. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
44. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
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45. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
46. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
47. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
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was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
48. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
49. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
50. I find on perusal of the record that indeed the criminal action was swung into motion on 05.12.2011 while there is delay of three years. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
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incident, she was meeting others, going to Haridwar with the accused, going out of her, etc.. Even then, she preferred not to make any complaint of rape against the accused. No explanation is coming forth from the prosecution as to why she did not tell her employer about the rape, her family, friends and others with whom she was in contact. She was not under the control of the accused during this period and could have easily disclosed about the incidents if she wanted to. It also cannot be ignored that the prosecution has neither furnished any justified reason for the delay nor produced nor examined any witness to substantiate the stand of the prosecutrix in respect of the delay of about three years (as per Ex.PW2/A) in lodging the case against the accused. No justified or logical reason is assigned for the delay in making the complaint to the police on 01.10.2011and lodging of FIR on 05.12.2011.
51. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
52. Therefore, it can be said that the FIR was lodged after a delay of about three years which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.
MENS REA / MOTIVE
53. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 17 of 52 ::-
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consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
54. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
55. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 18 of 52 ::-
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relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
56. In the present case, a story has been projected that the accused has raped the prosecutrix on promise of marriage and thereafter continued to rape her, threatened her with her nude photographs and this version appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecutrix.
57. There does not appear to be any criminal intention and mens rea on the part of the accused.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX TOTALITY WITH OTHER WITNESSES
58. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW2, the prosecutrix.
59. In the Court, during trial, the prosecutrix, as PW2, has deposed that the accused was introduced to the prosecutrix by Mr. Sharukh (her mooh bola bhai-brother) when he had come with him to her house for Jagran on 16th April about three years prior to the evidence of the prosecutrix on 04.04.2013 and had developed friendship with her. After about 4-5 months Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 19 of 52 ::-
-:: 20 ::-
from Jaagran, the accused had come to the house of the prosecutrix when she was alone at 12.00 noon -12.30pm and he told the prosecutrix that Mr. Sharukh was also coming and sat down in the house of the prosecutrix. He offered Limca to the prosecutrix which was smelling badly and after some time, the prosecutrix started loosing consciousness and he removed her clothes. When the prosecutrix regained her consciousness, she found that there were no clothes on her body and was covered with a bed sheet while the accused was sitting on the bed beside the prosecutrix. The prosecutrix told him that she will tell about the incident to her family on which he showed her some photographs and recorded video while the prosecutrix was unconscious. He threatened the prosecutrix that in case she told about the incident to anyone, he shall put the photographs and video recording on the internet as his friend has a shop near to his house. The prosecutrix told him that she will not tell anyone about the incident and requested him to delete the photographs and videos, on which he told the prosecutrix that he will delete himself. In his presence, the prosecutrix telephoned Mr.Sharukh from her mobile and told him about entire incident and he told her that the accused would marry the prosecutrix as he loved her immensely and the accused also told the prosecutrix that he will marry her. Next day, the accused brought a tablet and made the prosecutrix consume it and took the prosecutrix to Dwarka and other places where there were no people (soonsaan jagah) and used to remove clothes of the prosecutrix in the car in the presence of his friends and used to have physical relations with the prosecutrix. On 19.07.2011, the prosecutrix became pregnant and asked the accused to marry her on which he told her that his family would not be ready for the marriage as she was "Chamaar" (Scheduled Caste). In winter season of 2010, the accused took the Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 20 of 52 ::-
-:: 21 ::-
prosecutrix to Haridwar, where he booked a room in Hotel Virasat and reached Haridwar in dark and for the entire night and next day, the accused made physical relationship with the prosecutrix and he again gave some drug in Limca and did not marry the prosecutrix in Haridwar. When prosecutrix had asked the accused to marry her, he told the prosecutrix as she was a "Chamaar" (Scheduled Caste) he will not marry her and his parents also refused the marriage calling her a "Chamaar"(Scheduled Caste). In the month of October-November, 2011, the accused brought the prosecutrix to Delhi from Haridwar and left the prosecutrix at Uttam Nagar Bus terminal and she made a call to him informing that her mother will not allow entry and thereafter he reached there and took the prosecutix to the residence of his friend namely Mr. Notty in Dwarka and confined the prosectrix in room at his friend's house and forcibly raped the prosecutrix and in the early morning at about 4.00am, he brought the prosecutrix at Shani Bazar Road and left her. The prosecutrix came to her house and narrated whole incident to her mother and mother of the prosecutrix gave a ring to the accused that she will lodged a complaint against him in the Police Station and also came to his house and the accused told mother of the prosecutrix that he will marry the prosecutrix after return of his brother who had gone to Dubai. He used to visit the house of the prosecutrix along with a car of his friends and took the prosecutrix and forcibly raped her and sometimes he raped the prosecutrix in front of his friends and he used to provide abortion tablets to the prosecutrix. On 16.08.2011, he established physical relations and the prosecutrix got pregnant and he called the prosecutrix at the residence of his friend and tested her urine and it was confirmed that the prosecutrix was pregnant and the prosecutrix informed the accused if he will not marry her, she would tell all the things to Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 21 of 52 ::-
-:: 22 ::-
his family member and he started threatening to the prosecutrix to kill her and threw acid on her face.
60. On 01.10.2011, she gave a hand written complaint (Ex.PW2/A) against accused in the PS Uttam Nagar but the police did not take any action. After some days, the mother of accused namely Ms. Kiran telephoned her assuring that accused will marry her. She asked her to withdraw her complaint made to the police. She started pursuing her complaint in the Police Station on daily basis but police did not take any action against the accused. Thereafter, the mother of accused called her at the residence of friend of accused Pradeep but she did not recollect the name of his friend. The mother of accused told her that they will not allow the accused in their house and they will also kill her. Thereafter, she came back to her house and narrated all the facts to her mother. Her mother along with one Ms. Shakuntala went to the residence of accused's friend to meet the mother of accused but the mother of accused did not met them and her mother returned back to their house. After two days, the mother of accused again made a call to her informing to reach at their house as she would take her to a doctor. She immediately made a call to the police informing about the said fact and police official advised not to visit there. She did not go to the house of accused person. She accompanied HC Narender to the house of accused and accused was not found at his house. The mother of accused had shown news paper cutting informing that they had disowned the accused from their property. The mother of accused misbehaved with her by calling her "Chamaar" and that she should not think of marriage with the accused. Thereafter, she went to the Police Station and met the SHO. SHO told her that nothing will happen in her case and she should not pursue her Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 22 of 52 ::-
-:: 23 ::-
complaint. She was allowed to go to her house. Thereafter, accused started threatening her on phone and also abused her. On the day of Dusshera in the year 2011, accused called her in a street near Metro Restaurant. She along with her friend Ms. Shabnam went to meet the accused. On reaching there, she found the accused in the gali along with his two friends namely Mr. Pritam and Mr. Pawan. Accused forced her to consume some tablet but she refused for the same. She asked her friend Ms. Shabnam to make a call to the police and thereafter, accused left from there. On 11.08.2011, accused again called her in the street near Metro Restaurant on the pretext of making compromise with her. He told her that she should accompany with him and he will do whatever she wants. Accused forcibly put a tablet in her mouth and thereafter, handed over other four tablets to her asking to consume the same in the morning and evening. Her friend Ms. Shabnam was also with her at that time. Thereafter, she returned back to her house. In the evening, she started feeling pain in her stomach. She went to a Chemist shop and showed the wrapper of the tablet which accused had forced her to consume. The chemist informed her that the person who had taken the first tablet will also consume other four tablets. He also told her that the tablets were for abortion. As advised by the Chemist, she consume the other four tablets and her pregnancy of two months was aborted. Then, she filed a complaint case before the Court of learned Metropolitan Magistrate in which the FIR was lodged. The complaint case (Ex.PW2/B) comprising of 13 pages including the memo of parties, list of witnesses, application under section 156(3) Cr.P.C have been proved by her. The order vide which the case had been disposed off and consigned to record room is dated 14.01.2013.After registration of FIR, police got her medical examination in the DDU hospital on 17.12.2011 but no Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 23 of 52 ::-
-:: 24 ::-
exhibits were taken at the time of her medical examination. Prior to the filing of the complaint case, her complaint was not taken in the Police Station and she was told by the police of Police Station Uttam Nagar to go to Police Station Binda Pur. She did not go to Police Station Binda Pur for lodging her complaint. She has prayed that the accused be punished for the crime he has committed with her. She had brought the original Caste certificate of her father Mr. Brajesh Kumar s/o Mr. Phool Singh r/o C-500, Hastsal Colony, Uttam Nagar, New Delhi issued on 01.03.2004 (Ex-PW2/C). She has prayed that the accused may be punished for the offence he has committed against her.
61. In the Court, during trial, the prosecutrix, as PW2, in her examination in chief, has ostensibly deposed in favour of the prosecution case (as elaborated above). However, on careful perusal of her evidence, several overwhelming contradictions and inconsistencies are revealed which give a shattering blow to the case. The prosecutrix has made several improvements and contradictions in her evidence from her complaint (Ex.PW2/A), the compliant case filed by her (Ex.PW2/B) as well as her statement under section 164 of the Cr.P.C. (Ex.PW5/A). The same have not been explained satisfactorily by the prosecution nor any justified logic or reasoning for the same have been furnished. The improvements and contradictions are as follows:
a. The incident of three years.
b. The date of 16th April when the prosecutrix had first met the accused c. About the role of Mr. Shahrukh and that he had the Jagran done in her house and who was like her brother.
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 24 of 52 ::-
-:: 25 ::-
d. Pradeep has taken her mobile number from any relative/ had taken her mobile number from Mr. Shahrukh.
e. Number of bottles of Limca and Uncle Chips brought by the accused.
f. The accused had taken her nude photographs and video recording of the incident.
g. After the incident of rape, she had telephoned Mr. Shahrukh and told him about the incident.
h. The accused had called her a "Chamar".
i. The incident of Haridwar and that the accused and the prosecutrix had gone to Haridwar for the purpose of marriage. j. The incident at house of Mr. Noty in Dwarka The accused used to take her in a car and rape me in the presence of his friends.
k. Accused had made physical relations with me for the last time on 16.08.2011.
l. On 11.10.2011 the accused had called her outside the Metro Restaurants and forcibly put a tablet in my mouth. She got married to one Mr.Narender prior to meeting the accused but she did not remember the exact date month and year.
62. Some more improvements and contradictions regarding which no explanation is coming from the prosecutrix and prosecution are tabulated below (also elaborated in the written arguments of the accused) Complaint Statement Us.164 Compliant case Us. Evidence before the (Ex.PW2/A) of Cr.P.C. 156 (3) of Cr.P.C. Court.
(Ex.PW5/A) (Ex.PW2/B)
Not Sharukh has been The complainant16 April date of
mentioned shown as main implicates three
Jagran first time
the name of person, who got persons. (accused mentioned by the
Sharukh done the his father and complainant.
anywhere. Jagran.The mother). Sharukh had got
accused has taken done the Jaagran,
the mobile No. of A Jagran was accused also come
complainant from solemnized/perform with Sharukh on the
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 25 of 52 ::-
-:: 26 ::-
Sharukh. The ed by the parents of day of Jagran and
accused started the complainant in started coming my
coming in the which one person house.(in PW-2/A it
house of Sharukh was also has been said that
complainant invited. Accused accused had taken
along with was accompanied my mobile no. from
Sharukh.On the with Sharukh in the someone and started
day of first time Jagran. (in 164 it talking with me and
rape Sharukh call has been stated that only at the time of
the complainant, accused has not first time rape
who told him that come at the time of accused visited the
she is alone in the Jagran). Accused house of
house. has taken the complainant.)
Immediately after mobile No. of the
the first time complainant from
rape, the any relative
complainant call tactfully.
Sharukh and told
him the entire
thing. Sharukh
told that accused
loves her so much
and marry her.
Mobile No. Mobile No. has Accused has taken Mobile No. has been
has been been taken by the the mobile No. of taken by the
taken by the accused from the complainant accused from
accused Sharukh. from any relative Sharukh.
from tactfully.
someone
The accused No.1 The accused had a
Accused Accused bring was having two bottle of limca
bring one one uncle chips bottle of limca and which he was
limca bottle packet and one he offered one drinking and a
and after bottle of limca, bottle of limca to packet of uncle
consuming Accused was the complainant. chips. He offered
the same the coming by eating (Not mentioned any me the limca which
complainant chips. uncle chips). he was drinking.
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 26 of 52 ::-
-:: 27 ::-
become (the limca has not (limca has been
unconscious. been consumed by (the limca has not constantly
(the limca the accused, been consumed by consumed by the
has not been uncle chips the accused, added accused also).
consumed by added) one other bottle of
the accused) limca)
After first After first time After first time rape After first time rape
time rape rape, accused the complainant the accused showed
complainant shown some nude told that why he me some
has not call photo to committed the rape photographs and
Sharukh, complainant. The upon her and also video recording of
accused said complainant calls told him that she myself which he was
he love the Sharukh. will tell about his taken while I was
complainant act to her parents. unconscious.
and will Accused also told
marry her, that he has shoot
Further the nude
accused photographs and
threaten the clips of the
complainant complainant in his
with dire mobile.(No call to
consequences Sharukh ,not shown
. the photo)
After taking After taking After taking Limca I had the limca
Limca Limca the the complainant which he had
complainant complainant became offered .It was
become become semi unconscious and smelling badly, after
unconscious, unconscious, & when she come in some time I started
and when she can feel what is conscious she found loosing
gain happing to her. that her clothes consciousness. He
conscious were lying on the was removing my
there was no other side of the bed clothes. At that time
cloth. and after realizing I could make out
herself she realized that he is removing
that accused no.1 my clothes.
commit rape upon
her.
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 27 of 52 ::-
-:: 28 ::-
Not After first time Not mentioned After first time rape
mentioned rape, on the next anything. next day accused
anything. day of rape brought a tablet
accused gave me which he make me
I pill. consume.
Not mention Accused mother Accused No.2 &3 Accused told me
anything. push the shouted upon the that his family is not
complainant and complainant by ready for the
said "Chammar". saying "Tujh marriage as I am a
Chamari Se Shaadi "Chammar".
Kyon Karega,Tue
Hamari Jaat Ki
Nahi Hai,To Neech
Jaat Ki Hai,"
accused said "Tu to
Chamari Hai Aur
Neech Jaat Ki
Hai," Accused
persons said
"Chamari Hamari
Barbri Karna
Chahti Hai,Neech
Jaat Ki". The
accused persons
defamed the
complainant in the
gernal public.
Not mention Accused and Not mention Accused took me to
anything complainant went anything. Haridwar where he
to Haridwar, book a room in
where they stay in Hotel Virsant, for
a hotel, accused entire night and
again give limca, next day the
after taking the accused made
same the physically relation
complainant with me. I told him
become that we had come to
unconscious for Haridwar to get
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 28 of 52 ::-
-:: 29 ::-
whole night and marriage. He again
whole day. gave me some drug
Accused in limca.
committed Galat (what is the need for
Kaam whole giving any limca
night and whole when complainant
day. is ready).
(what is the need
for giving any
limca when
complainant is
ready)
First time First time First time accused Accused thereafter
accused accused visited visited the house on started visiting my
visited the the house on the the day of rape, house and he took
house on the day of rape, after after Jagran. my mobile No.after
day of rape, Jagran. the Jagran.
after Jagran.
On 11/10/11 After lodging the The complainant On the day of
accused complaint (01/10/ told accused no.1 Dusshera
forcefully 11) on the day of about her (06/10/2011) in the
gave Dussera accused pregnancy then year 2011accused
medicine to call me, and he accused no.1 called call me in a street
complainant. tried to gave me the her at a Gali, accused along with
medicine at that where accused no.1 his two friends
time his friend was also present namely Pritem and
Pawan and along with one of Pawan,was there
Pritem was also his friend, the name accused forced me
there, when I call of which is not to consume tablet
my friend to gave known to the but I refused for the
a call at 100 no. complainant but same ,accused left
then accused left can identify the from there. On
me. Again on same if came before 11/08/11 (Infect this
11/10/11 accused her. Accused no.1 date is 11/10/2011)
call me and gave forcibly put some accused again
me the medicine, tablets/medicines in called me in the
in the wrapper the mouth of the street on the pretext
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 29 of 52 ::-
-:: 30 ::-
there are other complainant and as of making
five tablets and a result of which compromise with
said to me that I miscarriage was me, accused forcibly
should consume done of the put a tablet on my
the same. On complainant. The mouth and
16/10/11 the complainant again thereafter handed
complainant is became pregnant over other four
having two second time, further tablets to me asking
months accused call the to consume the
pregnancies. complainant and same in the morning
forcibly put the and evening.
(last relation tablets in the mouth
shown as of the complainant
16/08/11, the date and thereafter the
of Dushra is accused again put
06/10/2011,thrus the medicine in the
day ,can it be mouth of the
possible that she complainant on
gave a police 11/10/11.
compliant on ( In her cross
01/10/2011 and complainant said
police started she had to take the
raiding despite medicine as she
this the accused does not want to
call the become pregnant)
complainant and
gave forcefully
medicine to her
two times first on
06/10/11 and
again on
11/10/11.)
Not After first time of Not, mentioned Some time he also
mentioned rape Accused anything. raped me in front of
anything started coming his friends. This
with a car and happened on daily
commit Galat basis.
Kaam in the car Accused used to
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 30 of 52 ::-
-:: 31 ::-
in front of his provide abortion
friends. tablets to me for
consuming.
He used to remove
my clothes in the
car in the presence
of his friends and
used to physical
relations with me.
I cannot tell the
number of times the
accused had
physical relations
with me but was
after every 2 or 3
days during three
years. The accused
had physical
relations with me in
car in the presence
of Shabnam. She
has seen once or
twice. The accused
had physical
relations with me in
the car in the
presence of his
friends 5-10 times.
-- -- -- In Oct-Nov 2011
accused brought the
complainant
Haridwar to Delhi.
(how it can be
possible because
compliant and
accused went to
Haridwar much
before filling the
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 31 of 52 ::-
-:: 32 ::-
complaint(01/10/20
11)
After filling of my
complaint, I
visited the PS
daily, SHO
refused to
register the case.
(if this is so why
she meet the
accused two times
after filling the
complaint and if
police started
raiding the
accused, then why
she has not
informed the
police.
Accused commit Page-4 of cross-I do
Ultta-2 Kaam not drink beer
with me, he gave however the
me beer and accused used to
cigarette. force me to drink
beer. I can not tell
the number of times
the accused had
forced me to drink
beer but it was
several times.
63. The prosecutrix has failed to furnish all these material details in her different statements attributing it to lapse of time. However, it does not appear to be believable that a victim would forget all the major details of the incident including the number of times she was raped, where she was raped, where she was taken by the accused and raped, whether her obscene Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 32 of 52 ::-
-:: 33 ::-
photographs were taken, whether she was threatened, etc. her failure to depose about all the material facts in her examination in chief creates a doubt on the veracity of her testimony.
64. The prosecutrix has deposed that "It is correct that I had stated before the Ld.MM that I was unconscious for one night and one day when the accused had raped me at Haridwar." However, it is unbelievable that when the prosecutrix was herself willing to surrender herself to the accused, what was the need for the accused to make her unconscious and that too for one night and one day.
65. She has also concealed about her marriage with Mr.Narender in the complaint, the complaint case, the FIR, the statement under section 164 of the Cr.P.C as well as her examination in chief.
66. It was only in her cross examination that when questions regarding her marriage were put that she admitted the same that she got married to one Mr.Narender prior to meeting the accused but she did not remember the exact date month and year. She has tried to cover the same by deposing that after the marriage ceremony, she did not go to her husband's house as they had come to know that her husband and his relations are not good persons. Five members from her family and five members of her husband's family had met in her house and it was decided in writing that henceforth they would be divorced. The document was given to HC Shailender. She and her husband had not taken divorce from any Court. She had no brought the document of her divorce with Mr.Narender as she did not have the same and could not Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 33 of 52 ::-
-:: 34 ::-
produce them in the Court. She had given them to Mr. Shailender who is in the police. She was divorced from Mr. Narender in her house. Five people from his side and five people from her side got together and they were divorced. They never approached the Court for divorce nor obtained any decree of divorce.
67. The only dispute which emerges is whether or not it was with her free consent or under a misconception on the false pretext of promise to marry that the prosecutrix had physical relations with the accused. By no stretch of imagination it can be said that the accused had promised to marry her as it is admitted by the prosecutrix herself in her cross examination recorded that she was fully aware that when she was involved with the accused, she was an already woman. She has admitted that she has not taken divorce from Mr.Narender from any Court which indicates that she is still a married woman. In such a situation, she could marry the accused or anyone till her marriage with Mr.Narender subsisted and therefore there could no assurance or promise of marriage by the accused to her.
68. It is apparently clear that the prosecutrix had herself got involved physically with the accused during the subsistence of her marriage with Mr.Narender. In such a situation the accused could not have married the prosecutrix, even if he wanted to, as she herself was not capable of marrying him being already married herself.
69. It is crystal clear that the prosecutrix had physical relations with the accused voluntarily and with her free consent and it was without any Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 34 of 52 ::-
-:: 35 ::-
misconception of facts or any false promise of marriage. She was capable of understanding the complications and issues surrounding her marriage with Mr.Narender and then being involved with the accused to the extent of having physical relations with him. The Court fails to comprehend as to how the allegations of false promise of marriage and rape have been raised by the prosecutrix as she being already married woman could not have married the other man during the subsistence of her marriage. There was no occasion for the accused to offer marriage to her and then her accepting the same and questioning him as to when he would marry her since such a marriage is legally not permissible. It may be mentioned here that the hon'ble Supreme Court of India in the judgment reported as Prashant Bharti v. State of NCT of Delhi, MANU/SC/0063/2013: 2013 (1) SCALE 652 has observed in a similar case as follows:
"Priya married another man Manoj on 30.9.2008. This is evidenced by a certificate of marriage dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on the assurance of marriage."
70. In such a situation, the assertion made by the prosecutrix that the prosecutrix had physical relations with the accused, on the assurance that he shall marry her, is per se false and as such, unacceptable.
71. It can be seen from the evidence of the prosecutrix that the allegations leveled by her of rape by the accused are false and unbelievable. It seems that she has not been raped but she was a consenting party to the physical relationship with the accused.
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 35 of 52 ::-
-:: 36 ::-
72. In the light of the aforesaid nature of deposition of the prosecutrix, PW2, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable.
73. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecutrix is unreliable and unworthy of credence.
74. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points 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, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime.
75. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 36 of 52 ::-
-:: 37 ::-
testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence.
76. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that the of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
77. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376 and 420 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced into having physical relations by the accused on a false promise of marriage.
78. It is clear that the prosecutrix had willfully remained with the accused and had physical relationship, if any, with him being a consenting party and that the accused does not appear to have committed any offence.
79. The prosecutrix is an adult and is married lady. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about his conduct and behaviour at any time and having established physical Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 37 of 52 ::-
-:: 38 ::-
relationship number of times with her consent and without any resistance. She never informed her family immediately about her relationship with the accused or his offer to marry her. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
80. The hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a)By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b)Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c)The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d)By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e)In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 38 of 52 ::-
-:: 39 ::-
spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f)Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g)A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
81. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations of intoxication, rape, promise to marry and threat against the accused.
82. Regarding the alleged threats given by the accused to the Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 39 of 52 ::-
-:: 40 ::-
prosecutrix, it may be observed that neither the prosecutrix has given the details of the words used by the accused not their impact on her which makes her evidence unbelievable. Had there been any threat, it would have been only for a particular time and not for an indefinite period. She was living in a residential area, going out of the house, in association with others, in contact with the others including her friend Ms.Shabnam, and could have taken their help if there was any threat or she needed help. The effect of the alleged threat, has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused and there was no reason why she could not have disclosed about the alleged threat to the others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence.
83. In the light of the aforesaid nature of deposition of the prosecutrix, PW2, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 40 of 52 ::-
-:: 41 ::-
84. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
85. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
86. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points 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, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 41 of 52 ::-
-:: 42 ::-
87. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
88. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that the of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
89. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness.
90. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 42 of 52 ::-
-:: 43 ::-
court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
91. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused.
92. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
93. This brings me to the final question as to whether it was she was raped and threatened by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been raped by the Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 43 of 52 ::-
-:: 44 ::-
accused but there are several contradictions in her statements which remain unexplained and indicate that no such offence was ever committed by the accused.
94. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
95. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
96. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
97. The prosecutrix has claimed that the accused administered something intoxicating in her Limca and then raped her. However, no Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 44 of 52 ::-
-:: 45 ::-
intoxicating or stupefying substance has been recovered from the possession of the accused.
98. It may be mentioned here that the hon'ble Delhi High Court in the case reported as Santosh Kumar v. State, 2008 (4) JCC 2919 has observed that no conviction can simply be on the basis of the statement of the witness that he became unconscious because of eating the biscuit or drinking tea offered to him by the accused as there had to be medical evidence to the effect that the victim had become unconscious because of consuming any drug or intoxicating substance etc. mixed with tea or biscuit. No such substance had been recovered from the accused.
99. Also, when it has been observed that neither any intoxicating substance was administered to her nor she was raped, the question of her being threatened also does not arise.
100. Even regarding her pregnancies and subsequent abortions, the prosecutrix has failed to produce any proof or documents which makes her version unbelievable.
101. Also, the camera/mobile with which her obscene photographs were allegedly taken has also not been recovered from possession of the accused or at his instance during investigation which falsifies the version of the prosecutrix that her nude photographs were taken by the accused.
102. The IO has also admitted that neither any photograph nor video Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 45 of 52 ::-
-:: 46 ::-
allegedly prepared by the accused of the incident of physical relations were recovered from his possession of at his instance.
103. No plausible reason is shown by the prosecution as to why the prosecutrix after having been allegedly intoxicated, raped, threatened, blackmailed, she allowed the accused to enter into her premises again and as to why she remained with her, went out of Delhi to Haridwar, to Dwarka etc. If she had actually been raped by the accused, she would not have even talked to him and not permitted him to enter her house nor go out with him. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that she herself was in the company of the accused with her consent.
104. Lastly, there are some very serious contradictions between the evidence of PW2-the prosecutrix, PW9-Ms.Shabnam and PW10- Ms.Savitri which make the evidence of the prosecutrix unreliable and unbelievable.
105. PW2 is silent regarding the accused having physical relations with her in his car in the presence of Ms.Shabnam. She is also silent regarding the presence of Ms.Shabnam when the accused made her forcibly consume tablets/I-pills. She is also silent regarding the accused threatening Ms.Shabnam. However, Ms.Shabnam-PW9 has deposed otherwise. PW2 has deposed that the accused had physical relations with her in car in the presence of Ms.Shabnam and she has seen once or twice. However, PW9, Ms.Shabnam Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 46 of 52 ::-
-:: 47 ::-
said it was 7-8 times.
106. PW2 has deposed that the accused had given her tablets for abortion when she became pregnant. However, PW10, her mother, has deposed that when the prosecutrix became pregnant for the second time, she had brought the tablet for abortion for her. PW2 has deposed that Ms.Meenakshi is her sister while PW10 has categorically denied that she has a daughter named Ms.Meenakshi.
107. The contradictions between the evidence of the PW2 and PWs 9 and 10 have not been explained by the prosecution due to which a fatal blow is served on the prosecution version.
108. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of intoxication, rape on promise to marry, threat to the prosecutrix by accused Mr.Pradeep and the accused merits to be acquitted for the offence under sections 328/376,420 and 506 of the IPC.
DEFENCE OF THE ACCUSED
109. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case by the prosecutrix in order to extort money from him. He has denied all the allegation and evidence against him. He has examined Mr.Vipin Bansal @ Sharukh as DW1 in his defence.
Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 47 of 52 ::-
-:: 48 ::-
110. Mr.Vipin Bansal @ Sharukh has denied introducing the accused to the prosecutrix. Accused had not attended the Jagran performed by him in the house of the prosecutrix.
111. The evidence of DW1 falsifies the version of the prosecutrix that Mr.Vipin Bansal @ Sharukh had introduced the accused to the prosecutrix. However, he has not furnished any reason as to why he did not join the investigation of the case.
112. Except for cursory suggestions to the prosecutrix to the effect that the present case was made against the accused is false which has been denied by her there is nothing shown by the accused in support of his stand that he has not raped the prosecutrix.
113. Therefore, I am of the considered opinion that there is no veracity in the defence of the accused.
114. However, the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused. The prosecution cannot take advantage of the weakness of the defence of the accused.
INVESTIGATION
115. The investigation conducted in the present case has been deposed by PWs 3, 4, 8 and 11. The MLCs of the prosecutrix and the accused have Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 48 of 52 ::-
-:: 49 ::-
been proved by PWs 1 and 6. The FIR has been proved by PW7. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
116. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case. The investigation appears to have been conducted fairly and properly.
117. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
118. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
119. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
120. Since the prosecutrix as PW2 is neither reliable nor believable as there are overwhelming inconsistencies, the conscience of this Court is Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 49 of 52 ::-
-:: 50 ::-
completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
121. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape by the accused on the pretext of marriage. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
122. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
123. Applying the above principles of law to the facts of present case, it Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 50 of 52 ::-
-:: 51 ::-
is evident that the identity of the accused Mr.Pradeep stands established. It also stands established that the prosecutrix was not a minor when the alleged offence was committed. It also stands established that the accused had not raped her on a false promise of marriage. It also stands established that the accused has neither intoxicated the prosecutrix nor raped her nor threatened her with her nude photographs. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
124. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped by the accused on a false promise of marriage or that the accused intoxicated the prosecutrix or raped her or threatened her with her nude photographs.
125. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Pradeep.
126. Accordingly, Mr.Pradeep, the accused, is hereby acquitted of the charges for the offence punishable under sections 328, 376, 420 and 506 of the IPC.
127. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 51 of 52 ::-
-:: 52 ::-
be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
128. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
129. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
130. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
131. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 28th day of February, 2014. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
*************************************************************** Sessions Case Number : 17 of 2013.
Unique Case ID Number : 02401R0570622012.
FIR No. 593/2011, Police Station Uttam Nagar, Under sections 328, 376, 420 and 506 of the Indian Penal Code.
State versus Pradeep -:: Page 52 of 52 ::-