Delhi District Court
Fir No. 217/13 : State vs Umesh Roy @ Umakant Roy : Ps Subhash Place on 16 January, 2017
FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 52/14)
Unique ID case No. 02404R0377572013
State Vs. Umesh Roy @ Umakant Roy
FIR No. : 217/13
U/s : 376/370/409/506 IPC
P.S. : Subhash Place
State Vs. Umesh Roy @ Umakant Roy
S/o Late Sh. Damodar Roy
R/o House no. 23, DDA Market,
Shakur Pur, Delhi.
Also at :
K155/156, JJ Colony,
Shakur Pur, Delhi.
Date of institution of case 21.01.2014
Date of arguments : 16.01.2017
Date of pronouncement of judgment : 16.01.2017
Page 1 of 24
FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place
J U D G M E N T:
Facts of the case
1. The facts of the case as borne out from the record are that on 21.05.2013 at about 3:41 p.m. an information through PCR was received at P S Nihal Vihar with regard to the rape of a 16 years old girl. The said information was recorded as DD No. 23 A and was entrusted for investigation to SI Sugreev Singh, who went to the spot where he found prosecutrix RT, aged about 15 years ( herein after referred to as prosecutrix), her father Sh. Vinod Tirki, two counsellors namely Prabha Mani and Meena from NGO Sampuran Gharelu Kaamgar Uthan Samiti. SI Sugreev made preliminary inquiry in the matter and found it to be a case of commission of sexual assault upon the prosecutrix by accused Umesh Rai @ Uma Kant Roy in the area of PS Subhash Place. He accordingly took all the aforesaid persons to P S Subhash Place where the matter was entrusted for further inquiry to WSI Sujata ( herein after referred to as IO), who called another counselor by the name of Ms. Taruna Kataria, got the prosecutrix counseled and thereafter recorded her statement, wherein she stated that she had been hailing from West Bengal where her father was working in a tea garden whereas her mother had already expired. She claimed to have studied at primary school in Village Dulgaon Distt. Jalpaiguri. She further stated that about 4 years prior to the said date she had come to Delhi at the placement agency of accused by the name of 'Krish Enterprises', at Shakur Pur. The accused got him placed as a maid servant at a house at Model Town where she worked for Page 2 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place one year and thereafter she was sent to Ludhiana, Punjab to work as a maid servant where she remained till March, 2013. She further stated that in April, 2013, the accused had committed penetrative sexual assault upon her when she was alone in his agency and thereafter he got her sent to her native village where she disclosed to her father about the sexual assault. Her father brought her back to Delhi where they met Smt. Prabha Muni, NGO counsellor, who informed the police at number 100.
On the basis of the aforesaid statement of the prosecutrix the case FIR in the matter was recorded. The prosecutrix was medically examined at Bhagwan Mahavir Hospital where she was found to be menstruating and as such neither her internal gynecological examination could be conducted nor her biological samples could be collected. Her statement U/S 164 CrPC was got recorded wherein she alleged commission of sexual assault upon her by the accused on several occasions. She was also produced before NGO by the name of Shakti Vahini where also she was thoroughly counseled. The accused was granted interim anticipatory bail by the court and as such he was formally arrested on 24.06.2013 and his medical examination was got conducted at Bhagwan Mahavir Hospital. His anticipatory bail application was finally dismissed by the court on 03.08.2013 whereafter he absconded and was finally arrested on 11.10.2013. The documents with regard to his placement agency were collected from Department of Labour as well as from the office of Commissioner of Industries. His bank accounts were also seized.
Page 3 of 24FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place The documents with regard to the age of the prosecutrix were collected from her school in West Bengal. After conclusion of the investigation the charge sheet in the matter was filed.
Court proceedings
2. After filing of charge sheet, copy thereof was supplied to the accused and thereafter, arguments on the point of charge were heard and on 10.07.2014, charges u/s 370/409/506 IPC and u/s 5 (l) of Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as "POCSO Act"), punishable u/s 6 of POCSO Act, alternative u/s 376 (2) (n) IPC, were framed against the accused, to which, he pleaded not guilty and claimed trial.
3. In order to bring home the guilt of the accused, the prosecution examined as many as fifteen witnesses, whereafter, the P.E in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein, he claimed himself to be innocent and having been falsely implicated in the case by the police officials. The accused, however, did not lead any evidence in his defence.
Evidence recorded in the matter
4. I have heard arguments advanced at Bar by the learned Addl. PP and the learned defence counsel and perused the entire material on record.
Page 4 of 24FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW1, Sh. Jyotish Chandra, Head Teacher, Dalgaon Tea Garden Primary School, PO Birpara, PS Falakata, District Jalpaiguri, West Bengal, produced on record the documents with regard to the date of birth of prosecutrix, maintained by the school in due course, inter alia stating the date of birth of prosecutrix to be 06.11.1994. He proved the relevant documents in this regard as Ex. PW1/A to Ex. PW1/C.
6. PW2 HC Rajender Kumar produced the PCR form and proved the same as Ex. PW2/A and deposed that as per Ex. PW2/A, on 21.05.2013, at about 3.37 pm, Ct. Lovkush had received a call regarding rape and after reducing this information in PCR form, dispatched the same to Computer Operator for necessary action.
7. PW3, HC Ranbir Singh, was lying posted as duty officer in PS Saraswati Vihar at the relevant time and he proved the attested copy of DD no. 47A as Ex. PW3/A recorded by him on arrival of PW6 SI Sugriv Singh and prosecutrix at PS Saraswati Vihar. He also proved the endorsement made by him on the rukka as Ex. PW3/B, computerized copy of FIR as Ex. PW 3/C and certificate u/s 65B of Evidence Act as Ex. PW3/D. Page 5 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place During crossexamination by learned defence counsel, he stated that Ct. Amit had left PS at about 12.15 pm with the copy of FIR and rukka.
8. PW4, Ms. Vandana, ld. M.M, in her evidence proved statement of prosecutrix as Ex. PW4/B, recorded by her under Section 164 Cr.P.C on 22.05.2013.
9. PW5 prosecutrix, the star witness of the prosecution, did not support the prosecution case and relevant portion of her testimony is as under : "xxx Mein mool rup se Village Dalgon, West Bengal ki rehne wali hu. Jab mein 17 saal ki thi, tab mere didi ka jeth Rentu mujhe mere gaon se Delhi kothiyon mein kaam karne ki liye laaye the.
Delhi mein mein accused Umesh ke office aayi thi, aur usne mujhe Model Town ek kothi pe kaam par rakhwa diya, jahan meine ek saal kaam kiya, uske baad mujhe Umesh ne Ludhiana bhej diya.
Ludihana mein me ek kothi par kaam karti thi, wahan par mujhe maalik kam paise dete the.
Ludhiana mein mere samne wali kothi mein ek Seema naam ki ladki kaam karti thi, meri uss se Page 6 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place achi dosti thi. Hum dono ghar ka samaan sath lene jate the. Ek din Seema ne pucha kya aap ki salary kitni h? Maine kaha mujhe Rs.2200/ per month milte h. Seema ne kaha ki tere maalik tujhe kam paise dete h. Seema ne kaha ki mere Maalik mujhe Rs.4,000/ per month dete h. Seema ne kaha ki pehle mere maalik bhi mujhe kam salary dete the, par jab maine police mein report ki to unhone meri salary badha di.
Uske baad mein March, 2013 mein Delhi wapas aa gayi. Jab meine accused Umesh se apni salary badhwane ko kaha to usne mana kar diya.
Usne mere ladai karne ke baad bhi meri salary nahi badhai aur mujhe dhamaki di ki tere jama paise bi nahi dunga. Meine gusse me aakar 100 number par phone kar diya. Police ko meine saari baat bata di. Kisi NGO ki didi ne mujhe kuch blank papers diye, jis par maine apne sign kar diye.
Mujhe iss case ke baare mein aur kuch nahi kehna h.
xxx"
Page 7 of 24FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place As the prosecutrix did not support the prosecution case at all, she was crossexamined by ld. Addl. PP, but nothing favourable supporting the prosecution case could come on record therefrom. During the said cross examination, the prosecutrix though admitted her signatures on statement/complaint Ex. PW5/A, but denied having made such statement/complaint. During further crossexamination she stated as under : "xxx .....Ye kehna galat h ki meine apne bayan mein kaha tha ki Ludhiana se mein wapas accused ki placement agency mein aa gayi thi tatha placement agency mein hi rehne lagi, April' 2013 ki baat h, karib 34 baje shaam mein jab mein placement agency mein akele thi, mujhe akela pakar, accused Umesh jo ki placement agency ka maalik h ne mere saath jabardasti galat kaam kiya aur mujhe chup karna ki nasihat se mere gaon Dilgaon, WB bhej diya.
Ye kehna galat h ki mere Pitaji muhje Sanjana Bhabi ke ghar le aaye, wahan NGO chalane wali Pratibha Muni madam ko sabhi baatein meine bata di, jinhone 100 number per police ko call kar diya.Page 8 of 24
FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place Ye kehna sahi hi ki maine Judge sahab ko ghatna sach sach bata di thi aur unhone usee likh liya tha. Us bayan per mere signatures pt.A par h. The said statement is already Ex.PW4/B. Ye kehna sahi h ki judge sahab ko apne bayan mein bata diya tha ki accused Umesh en mere saath jabardasti galat kaam kiya tha.
Ye kehna sahi h ki aaj mein court ke samne jootha bayan de rahi hu kyunki 08.03.2015 ko meri shaadi hone wali h, tatha mein bar bar West bengal se apni shadi ke baad evidence ke liye is case mein nahi aa sakti. ....
Ye kehna sahi h ki IO madam mujhe do baar CWC mein counselling ke liye le gayi thi jahan par meri counselling hui thi.
xxx"
During crossexamination by learned defence counsel, she stated as under : "xxx Ye kehna sahi h ki accused Umesh ne mere saath koi galat kaam nahi kiya tha.
Page 9 of 24FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place Court Question: Galat kaam kise kehte h? Kya aap samjhte ho?
Ans. Haan, ijjat lutnaa, rape karna.
Jab mein judge sahab ke samne apne bayan dene aayi thi, tab mujhe nahi pata tha ki meine kya case accused ke khilaaf kiya h. Ye kehna galat h ki uss samay police ke kehne pe ki mujhe accused Umesh ke khilaaf galat kaam karne ka bayan dena h. Ye kehna sahi h ki aaj mein bayan kisi k dabao mein nahi de rahi hu. Ye kehna sahi h ki 21.05.2013 jab maine police bulai, to mera aur accused ke jagdha sirf paise ke len den par tha. Ye kehna sahi h ki meine khud 100 number par call nahi kiya tha, tatha ek pados ki aunti ne kiya tha. Ye kehna sahi h ki mujhe nahi malum tha ki pados ki aunti ne police ko mere kya bayan likhwaye the. Ye kehna sahi h ki un aunty ne mujhe samjhaya tha ki mujhe accused ke khilaaf galat kaam karne ka bayan dena h.
xxx"
10. PW6 SI Sugriv Singh, deposed that on 21.05.2013, at about 3.41 pm, Page 10 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place after receipt of DD no. 23A, Ex. PW6/A, he had gone to the House mentioned in the DD, where one lady/caller Smt. Prabhamani and prosecutrix met him and after inquiry, he came to know that area in which, the incident had taken place, was of PS Subhash Place and thereafter, he took the prosecutrix and caller Smt. Prabhamani to PS Subhash Place, where he met with Duty officer as well as SHO, briefed them about the incident and also produced the prosecutrix and caller Smt. Prabhamani before the SHO and SHO directed PW14 W/SI Sujata, to take further necessary action in the matter. He further deposed that thereafter, he returned to PS Nihal Vihar and recorded DD no. 5A, Ex. PW6/B dated 22.05.2013 in the DD register, about the same.
11. PW6 Dr. Preeti, SR (Obs. & Gynae), Bhagwan Mahavir Hospital, Pitam Pura, Delhi, had examined the prosecutrix vide MLC Ex. PW7/A and deposed that at the time of examination, prosecutrix was menstruating and forensic samples could not be taken for the said reason.
12. PW8 Dr. Prabhat, proved the MLC of the accused as Ex. PW8/A by identifying the handwriting and signatures of Dr. Nand Kishore, who had examined the accused and deposed that after examination, Dr. Nand Kishore had given opinion about the potency of the accused and had also taken the exhibits, sealed the same and handed over to the concerned police official.
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13. PW9 Dr. Pankaj Shah, CMO, Bhagwan Mahavir Hospital, Pitampura, Delhi, had examined the prosecutrix initially vide MLC Ex. PW7/A and thereafter referred her to SR, Gynae for further examination and expert opinion and he deposed regarding the same.
14. PW10 Sh. Suraj Narain Gupta, husband of owner of House no. H23, DDA Market, Shakurpur, Delhi, deposed that his wife had let out the said house to accused, at a monthly rent of Rs. 6,500/ and a rent agreement had also been prepared in this regard. He further deposed that accused used to run a placement agency by the name of 'Krish Placement Agency" from the aforesaid house and also used to reside with his family in it. He further deposed that later on, after coming to know that a girl (prosecutrix) had leveled allegations of molestation against the accused, he got the aforesaid house vacated from the accused and thereafter, the accused had shifted to K Block, in house no. 155/156, JJ Colony, Shakurpur, Anandwas, Delhi.
15. PW11 Sh. Anil Kumar, Customer Assistant, SBI, Shakur Pur, Delhi, produced the record in respect of account no. 31114517351 and proved the Account Opening Form as well as other documents furnished at the time of opening the said account as Ex. PW11/A and Ex. PW11/B and deposed that said account was in the name of M/s. Krish Enterprises and was being Page 12 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place operated by accused. He also proved the current statement of said account as Ex. PW11/C. He further deposed that pursuant to application Ex. PW11/D moved by SHO, PS Subhash Place, the aforesaid bank account was seized and the communication thereof was made to SHO PS Subhash Place by the then Manager, vide letter Ex. PW11/E.
16. PW12 Sh. Surender Dhanda, Deputy Manager, SBI, Shakur Pur, Delhi, produced the record in respect of account no. 30254130811 and proved the Statement of Account as well as computerized status report of the said account as Ex. PW12/A and Ex. PW12/B, respectively. He further deposed that said account was in the joint name of accused and Smt. Binita. He further deposed that pursuant to application Ex. PW12/C, moved by SHO, PS Subhash Place, the then Manager had communicated to the SHO that decision regarding seizure of the account would be taken after obtaining permission from the Controlling Authority. He also proved the authority letter issued by the manager in his favour as Ex. PW12/D.
17. PW13, Sh. Jagdish Chand, Ahlmad, Office of Labour Commissioner, 5 Shamnath Marg, Delhi - 54, proved the registration certificate of the establishment/placement agency of the accused as Ex.PW13/A and deposed that as per this certificate, M/s. Krish Enterprises at H. No. 23, DDA Market, Shakurpur, Anandwas, Delhi 34 had been registered as a shop under Delhi Page 13 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place Shops and Establishment Act, 1954 on 13042010. He further deposed that no physical verification of the said shop was conducted by any of Inspectors as after the year 2009, the Department had started working online on the basis of self attested documents of the employer / occupier. In reply to a court question, PW13 replied as under : "xxx Court question : Does that mean that your Department did not have any idea as to what kind of activity was being performed at the aforesaid premises ?.
Answer : It is correct.
xxx"
18. PW14 Ins. Sujata, investigating officer of the case, deposed that on 21052013, prosecutrix had met her with NGO member Smt. Prabhamuni and after inquiry, she had recorded her statement Ex.PW5/A, made her endorsement on it, prepared rukka Ex.PW3/B and got the case FIR registered. She further deposed about getting the prosecutrix medically examined vide MLC Ex. PW7/A, about getting her statement recorded u/s 164 Cr.P.C vide her application Ex. PW4/A and about collecting copy thereof vide application Ex. PW4/D. She further deposed about receiving the documents Ex. PW1/B and Ex. PW1/C regarding age of the prosecutrix, Page 14 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place about formal arrest of the accused vide arrest memo Ex.PW14/A, about his medical examination vide MLC Ex. PW14/B, about freezing of the bank accounts of accused in two different banks vide application Ex.PW11/D and Ex.PW12/C. She further deposed about getting the prosecutrix counseled from NGO counselor and about collecting the counseling report Ex.PW14/C. She further deposed that the SHO had also applied for the cancellation of registration certificate of accused under Shop and Establishment Act vide application Ex. PW14/D. She further deposed that after dismissal of the bail application of accused by this court as well as by the Hon'ble High Court of Delhi, she had obtained NBWs against accused and thereafter, initiated the proceedings u/s 82 Cr.P.C. against him on 03102013. She further deposed about rearrest of the accused vide arrest memo Ex. PW14/F, about personal search of the accused vide memo Ex.PW14/G, about recording of disclosure statement Ex. PW14/H of the accused, about collecting the PCR form Ex.PW14/J, about recording of the statement of witnesses and about filing of the charge sheet on completion of the investigation.
19. PW15 Ct. Amit, deposed that on 25052013, as per the order of Sr. officer, he had gone to Paschim Bengal, Village Dalgaon, Distt. Jalpaiguri, PS Phalkata for bringing the age proof of the prosecutrix and after reaching there, he served a notice u/s 91 Cr.P.C. upon the Head Master, who issued certificate Ex PW1/C as per school record regarding the age of the Page 15 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place prosecutrix on 27052013. He also proved the copies of the school record given by the Head Master showing the age of prosecutrix as Ex. PW1/B collectively. He further deposed that on return, he handed over the said documents to IO W/SI Sujata.
Arguments advanced at bar
20. The Ld. Addl. P P for the State has very vehemently argued that as on the date of incident, the prosecutrix was a child within the meaning of Section 2 (d) of the Act and she categorically stated in her various statements recorded during investigation about the sexual assault suffered by her through the hands of accused, however for the reasons best known to her she did not support the case of prosecution in her evidence recorded in the court and as such the conviction of the accused for the charged offences has been prayed for.
21. Per contra, the Ld. Defence Counsel, Sh. Ankur Sharma, advocate has very vehemently argued that the prosecution has miserably failed in proving the fact that the prosecutrix was a child within the meaning of Section 2 (d) of the Act. It is further argued that the prosecutrix is a wholly unreliable witness as she has changed her stand at every stage of the trial and she finally turned hostile in the court. It is next argued that the accused has been falsely implicated in the matter by the prosecutrix with a view to pressurize him to Page 16 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place pay a handsome amount and finally it is argued that the medical evidence does not support the prosecution case and as such the acquittal of the accused in the matter has been prayed for.
22. I have given thoughtful consideration to the arguments advanced at bar and gone through the entire material on record.
Plea with regard to age of the prosecutrix
23. The prosecution has examined PW1 Sh. Jyotish Chander, Head Teacher, Dalgaon Primary School, Distt. Jalpaiguri, West Bengal to prove the date of birth of prosecutrix lying recorded in their school. The documents in this regard have been proved as Ex. PW 1/A to Ex. PW 1/C. A perusal of these documents reveals that the admission of the prosecutrix was made in the aforesaid school merely on the basis of her date of birth mentioned by her father in the application form without there being any document of her birth. As per the record produced in court the date of birth of prosecutrix was found to be 06.11.1994. Accordingly, the prosecutrix was about 19 years of age at the time of registration of FIR in this case. In the case Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, it has been held that no evidentiary value can be attached to Date of Birth entry in the absence of material on the basis of which such entry was made.Page 17 of 24
FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place
24. The Hon'ble supreme court of Indian has been pleased to reiterate the law laid down in the aforesaid judgment in case reported as State of Madhya Pradesh Vs. Munna 2015 (4) Crimes 45 (SC), the relevant part thereof is reproduce hereunder: "xxx
10. This court in the case of (1998) Supp. SCC 604, has held:
17. ....... the entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined.
Further it was held by this court in the case of MANU/SC/ 1864/2009:(2010) 1SCC 742 that :
26. ..... In a criminal case, the conviction of the Appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. xxxx".
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25. It is further worth noticing that the prosecutrix in her evidence claimed her age to be 20 years and she further categorically stated that when she had come to Delhi for the first time her age was about 17 years whereas in her various statements she claimed herself to be either aged about 15 years or 16 years and she having come to Delhi about 4 years prior thereto.
It is, thus, evident that the prosecutrix is not consistent about her age. She has stated her age at various stages as per her own convenience and as such, she can not be presumed to be a child within the meaning of Section 2
(d) of the Act.
Plea with regard to the prosecutrix being an unreliable witness
26. The Hon'ble Supreme Court in case titled as "Rai Sandeep @ Deepu v. State of Delhi, cited as (2012), 8 Supreme Court Cases 21, has been pleased to lay down the characteristic of a sterling witness" which are as under : "xxx A "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the versions of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness Page 19 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries make, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion . The said version should consistently Page 20 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumferential evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be hold that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilt can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in the material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
xxx"
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27. Now let us see from the material on record that the prosecutrix comes true to the characteristics of a sterling witness set out by the Hon'ble Supreme Court of India in Rai Sandeep ( Supra).
28. The first stand of the prosecutrix which came on record is her statement Ex. PW 5/A where she leveled allegation of commission of penetrative sexual assault upon her by the accused only one single time i.e. in April, 2013. Her second stand is lying recorded by Doctor at the time of her medical examination vide MLC EX. PW 7/A wherein in the column of alleged history she claimed to have been sexually assaulted by the accused one single time one month prior to the said medical examination. In her statement recorded U/S 164 CrPC (Ex. PW 4/B) she made huge exaggerations and improvements by claiming that the accused had committed penetrative sexual assault upon her on several occasions during the course of four years when she remained lying attached with his placement agency, however in her evidence recorded in the court she categorically stated that the accused had never committed sexual assault upon her and she had cooked up a story in this regard on the asking of NGO counsellor Smt. Prabha Muni and the IO of the case. She completely disowned her all previous statements. She added another limb to her story by stating that she wanted the accused to raise her wages which he had not agreed to do and as such she made a call to the police and Page 22 of 24 FIR No. 217/13 : State V/s Umesh Roy @ Umakant Roy : PS Subhash Place thereafter she was forced to level allegations of commission of sexual assault against the accused by the IO and NGO counsellor.
29. A fair analysis of the various statements of the prosecutrix cull out that she has not been consistent in her various statements and as such she is not a sterling witness. The medical evidence is also not there to support her allegations of sexual assault.
30. The prosecutrix has also not deposed about her trafficking from West Bengal to Delhi and has rather categorically stated that she had come to Delhi in search of job along with one Ranthu, the Jeth of her elder sister.
31. Considering the facts and circumstances of the case in totality and in the light of evidence which has come on record , the false implication of the accused in the matter cannot be ruled out. The accused Umesh Roy @ Umakant Roy is accordingly held entitled to the benefit of doubt and is consequently acquitted in the matter. He is on bail in this case. His bail bond stands canceled. Surety stands discharged. Endorsement, if any on the documents of either accused or his surety be canceled. The original documents of either accused or his surety, if on record, be returned to them forthwith.
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32. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
(Announced in the open ) (Vinod Yadav)
(Court on 16.01.2017) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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