Delhi District Court
State vs Deen Dayal Kamat. -:: Page 1 Of 44 ::- on 25 March, 2013
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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 : 08 of 2013.
Unique Case ID Number : 02401R0278362011.
State
versus
Mr.Deen Dayal Kamat,
Son of Mr. Biltu Kamat,
Resident of H.No. RZQ-83, Nihal Vihar, Delhi.
First Information Report Number : 59/11
Police Station Madipur,
Under sections 376, 506 of the Indian Penal Code.
Date of filing of the charge sheet before : 10.06.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 18.07.2011.
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 : 25.03.2013.
Date of judgment : 25.03.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the
State is on leave.
Mr.Rakesh Mehta, Substitute Additional Public Prosecutor
for the State.
Accused on bail with counsel, Mr.S.R. Kamat.
Ms.Sadhna Singh, counsel for the Delhi Commission for
Women.
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Sessions Case Number : 08 of 2013.
Unique Case ID Number : 02401R0278362011
FIR No. 59/11, Police Station Madipur,
Under sections 376, 506 of the Indian Penal Code.
State versus Deen Dayal Kamat. -:: Page 1 of 44 ::-
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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 male adult.
2. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost 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 Sessions Case Number : 08 of 2013.
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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. Deen Dayal Kamat, the accused has been charge sheeted by Police Station Madipur, Delhi for the offence under sections 376/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 13.12.2010 at about 10.00 p.m. at the roof of H.No. 272, Pocket-3, IIIrd Floor, Paschim Puri, Delhi, he committed rape with prosecutrix (name withheld to protect her identity) without her free consent. On the aforesaid time, place and also at Deen Dayal Upadhyay Hospital, he had threatened the prosecutrix with threat to her life.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 10.06.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 18.07.2011 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Sessions Case Number : 08 of 2013.
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Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide circular number 20/372-512/F.3. (4)/ASJ/01/2013 Dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
5. After hearing arguments, charge for offence under sections 376/506 of the IPC was framed against the accused Mr.Deen Dayal Kamat by the learned predecessor vide order dated 28.07.2011.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
6. The allegations against the accused are that on 13.12.2010 at about 10 pm at the roof of H.No.272, Pocket-3, III Floor, Paschim Puri, Delhi, he committed rape upon the prosecutrix (PW2) and on 13.12.2010 at about 10 pm at the roof of H.No.272, Pocket-3, III Floor, Paschim Puri, Delhi, and also at Deen dayal Upadhayaya Hospital, he threatened to kill the prosecutrix.
7. The prosecution story unfolds with the prosecutrix giving her statement (Ex.PW1/DA) on 27.04.2011, in the Police Station to the IO ASI Sushila (PW11) on which the rukka (Ex. PW11/A) was written and endorsement vide DD No. 23A dated 27.04.2011 (Ex. PW6/B) was made on the basis of which the FIR (Ex. PW6/A) was lodged which was recorded by SI Lokesh Kumar (PW6). The prosecutrix was taken by ASI Sushila (PW11) with Ct.Anita to the DDU Hospital for her medical examination where she was medically examined by Dr.Asha (PW5) vide MLC (Ex.PW5/A). One (01) parcel pertaining to the prosecutrix and one sample seal were seized vide seizure memo Sessions Case Number : 08 of 2013.
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(Ex.PW11/B). On the pointing out by the prosecutrix in the presence of her employer Mr.B.D.Kamat (PW1), the accused was arrested vide arrest memo (Ex.PW4/A) and his personal search was taken vide personal search memo (Ex.PW4/B). The investigation was conducted by the IO ASI Sushila (PW11) with Ct.Virender Singh Bisht (PW10) and HC Ram Niwas (PW4). The accused was medically examined at DDU hospital by Dr.Ajay Kumar (PW7) vide MLC (Ex. PW-6/B) and one (01) parcel pertaining to the accused and one sample seal were seized vide seizure memo (Ex.PW4/E). The statement of the prosecutrix under section 164 of the Cr.P.C (Ex.PW2/A) was got recorded from the learned Metropolitan Magistrate Ms.Sugandha Aggarwal (PW8) and the certificate to the proceedings (Ex.PW8/B) was given, on the application of the IO (Ex.PW8/A) and copy of the statement was obtained by the IO on application (Ex.PW8/C). The clothes of the prosecutrix i.e. one underwear, one pyjami, one shameez, one lady's shirt and one bra (Ex.P1 collectively) were sent to the FSL for examination. IO ASI Sushila (PW11) deposited the case property on 27.04.2011 in the malkhana with the Malkhana Moharar vide entry number 282 in register number 19 (Ex.PW9/B); again deposited the blood sample of the accused vide serial number 286 (Ex.PW9/B); On 26.05.2011, the pullandas and two sample seals were sent to FSL through Ct. Chand Prakash (PW3) vide RC No.72/21 of register number 21 (Ex.PW9/C) and receipt (Ex.PW9/D) was submitted. On 05.12.2011, result of the pullandas was received in the malkhana and was handed over to the IO. The exhibits of this case were examined by the FSL expert Dr.Dhruw Sharam (PW12) vide his detailed FSL reports (Ex.PW12/A and Ex.PW12/B).
PROSECUTION EVIDENCE
8. In order to prove its case, the prosecution has examined as many as 12 witnesses i.e. Mr.Brahm Dev Kamat, owner of Placement Agency, as Sessions Case Number : 08 of 2013.
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PW1; the prosecutrix as PW2; Ct. Chand Prakash, who had taken the sealed parcels to the FSL, as PW3; HC Ram, Niwas, a witness of investigation, as PW4; Dr. Asha (Gynae), who had medically examined the prosecutrix, as PW5; SI Lokesh Kumar, duty officer who had recorded the formal FIR of the case, as PW6; Dr.Ajay Kumar, who had medically examined the accused, as PW7; Ms. Sugandha Aggarwal, learned Metropolitan Magistrate, Tis Hazari Courts, West District who recorded the statement of prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) as PW8; HC Narender Kumar, the Malkhana Moharrar as PW9; Ct. Verinder Singh Bisht, a witness of investigation, as PW10; ASI Sushila, Investigation Officer of the case, who had filed the charge sheet as PW11; and Dr. Dhruw Sharma, FSL expert, as PW12.
STATEMENT OF THE ACCUSED DEEN DAYAL KAMAT UNDER SECTION 313 OF THE CR.P.C.
9. In his statement under section 313 of the Cr.P.C., recorded on 05.02.2013, the accused Deen Dayal Kamat has controverted and rebutted the entire evidence against him submitting that he is innocent and he has been falsely implicated in this case. He has stated that he was working under Mr.Brahm Dev Kamat in his placement agency, which used to supply maids and servants. Mr.Brahm Dev Kamat has got him implicated in the present case by using a planted witness i.e. the prosecutrix as the accused had opened his own placement agency. He was arrested at H. No.65, Ram Darbar Bus stand, Ph-I, Chandigarh. The accused has preferred to lead evidence in his defence.
Sessions Case Number : 08 of 2013.
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DEFENCE EVIDENCE
10. In his defence, the accused has examined Mr.Rohit Kumar as DW1.
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 on behalf of the accused.
12. The Additional Public Prosecutor for the State has requested for convicting the accused Mr.Deen Dayal Kamat for having committed the offence under sections 376 and 506 of the IPC and 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 persons on the record.
TESTIMONIES OF THE PROSECUTION WITNESSES MATERIAL WITNESSES
14. PW1, Mr.Brahm Dev Kamat, the owner of Placement Agency has deposed on oath that he started a placement agency in the year 2009 by the name of Kamat Enterprises and he employed the accused Mr.Deen Dayal Kamat for working in field. The prosectrix was also working in his Sessions Case Number : 08 of 2013.
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placement agency as maid servant through one Ms.Geeta. The prosecutrix was employed in the house of one Ms.Tripti at BP-57, Shalimar Bagh, Delhi as maid servant since 12.12.2009. As per terms of an agreement, the prosecutrix had worked as maid servant in Ms.Tripti's house for one year and thereafter he withdrew the prosecutrix from the house of Ms.Tripti and after that the prosecutrix stayed in his placement agency. On 02.01.2011, he further got her employed as maid servant at the house of Mr.Kamal Singh at H.No. C-96, Kirti Nagar, Delhi but after 10-15 days, the prosecutrix became ill and came back in the placement agency and thereafter she was got admitted in Acharya Bhikshu Hospital, Moti Nagar Delhi for 5-6 days and after her discharge, she was brought back to the placement agency. During this period the prosecutrix had told the whole incident which had taken place with her on 13.12.2010 when she was living in his placement agency. The prosecutrix told him that on 13.12.2010, accused Mr.Deen Dayal Kamat had raped with her without her consent on the roof of the placement agency and had threatened her that he would kill her if she disclosed the incident to anyone. Thereafter, he came to know later on that accused had started a new placement agency in Paschim Puri in Pocket-I and that after few days the accused Mr.Deen Dayal Kamat had opened another agency at Nihal Vihar, Delhi with Mr.Mahesh after closing the placement agency of Paschim Puri. Thereafter, he took the prosecutrix to PS Madipur and statement of prosecutrix was recorded there and she was got medically examined. Statement of Mr. Brahm Dev Kamat, owner of placement agency was also recorded in police station.
15. PW2, the prosecutrix, has deposed on oath that she came to Sessions Case Number : 08 of 2013.
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Delhi in November, 2009 and employed as maid servant in the placement agency of Mr.Brahm Dev Kamat through her friend namely Ms.Geeta. Initially Mr.Brahm Dev Kamat had employed as maid servant in a house at BP-57, Shalimar Bagh, Delhi on 12.12.2009 for one year and thereafter on 12.12.2010 the prosecutrix came back to the placement agency. On 13.12.2010 at about 10:00 p.m., accused Mr.Deen Dayal Kamat had raped her forcibly on the roof of the placement agency when the prosecutrix had gone to bring her clothes there. The accused pressed her mouth with his right hand from her back and caught hold of her hand with his left hand and thereafter the accused Mr.Deen Dayal Kamat made her fall on the roof.
Thereafter, the accused Deen Dayal Kamat had untied the string of her salwar and then raped her and when the prosecutrix tried to raise alarm, accused Mr.Deen Dayal Kamat gave her leg blows and threatened her that if she tried to raise alarm, he would kill her if she complaint about the incident to anybody. On that day, the owner of placement agency Mr. Brahm Dev Kamat had gone to Jaipur. The prosecutrix could not tell about the incident to anybody due to fear. Thereafter, Mr. Brahm Dev Kamat again got her employed at another place at C-96, Kirti Nagar, Delhi and there the prosecutrix had worked for about one month and thereafter she became seriously ill and she had admitted at Acharya Bhikshu Hospital, Moti Nagar, Delhi by Mr. Brahm Dev Kamat and her treatment continued there for 8-10 days. During this period, the accused Deen Dayal Kamat had visited the hospital and threatened her to remain quiet and not to disclose the incident to anybody otherwise he would kill her. She had told Mr. Brahm Dev Kamat about the incident of rape committed upon her by the accused Deen Dayal Kamat. Thereafter, the prosecutrix along with Mr. Brahm Dev Sessions Case Number : 08 of 2013.
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Kamat went to PS Madipur but her complaint was got registered on her next visit. The statement of prosecutrix (Ex.PW1/DA) was recorded by lady police official and she was taken to Sanjay Gandhi Memorial Hospital for her medical examination. Doctor had taken the undergarments and clothes of the prosecutrix. Her statement under Section 164 Cr.P.C. (Ex.PW2/A) was also recorded by Magistrate.
16. The Additional Public Prosecutor, after taking the Court permission, put leading questions to the prosecutrix in which she has admitted to be correct that the accused had made a false promise to marry her besides threatening to kill her. She has also identified her clothes which she was wearing at the time of her medical examination i.e. one underwear, one pyjami, one shameez, one lay's shirt and one bra as Ex.P1 collectively.
17. In her cross examination by the counsel for accused, she has deposed that she had not gone to her village in Jharkhand in the month of December, 2010. She knew the accused Mr.Deen Dayal Kamat since December 2010 and did not know the accused prior to the date of incident. She was working in the placement agency of Mr.Brahm Dev Kamat since 2009 in whose contact she had come through one Ms.Geeta. The accused was also an employee of Mr.Brahm Dev Kamat but she did not know whether he used to supervise the maids sent to the homes. She did not receive any injury in other parts of her body when accused Mr.Deen Dayal Kamat raped her. She was conscious when the accused raped her. She was not in a position to push him at that time. She could narrate the incident to Mr.B.D.Kamat when he asked her as to what had happened during her Sessions Case Number : 08 of 2013.
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illness. In fact, she was ill due to the threatening given by the accused and she was ill during the complete period of three months when the accused as threatening her. She was suffering from jaundice during this period of three months due to the threat as she was under stress. The accused Deen Dayal Kamat had promised to marry her on the date of alleged incident of rape on the place of incident.
POLICE WITNESSES
18. PW3, Ct. Chand Prakash had taken the exhibits of this case from the Malkhana to FSL.
19. PW4, HC Ram Niwas, is a witness of investigation. He has deposed that on 24.05.2011, he along with Ct. Virender, ASI Sushila and Mr. Brahm Dev Kamat went to H.No. 124/1, Paschim Puri, Delhi and apprehended the accused and after interrogation, accused Mr.Deen Dayal Kamat was arrested vide memo (Ex.PW4/A) and his personal search was also conducted vide memo (Ex.PW5/B). Thereafter, the accused Deen Dayal Kamat also pointed out towards the place of occurrence at the roof of H.No. 272/3, Paschim Puri, Delhi vide memo (Ex.PW4/C) and accused made a disclosure statement (Ex.PW4/D). Thereafter, he along with Ct. Virender and the accused Deen Dayal Kamat went to Sanjay Gandhi Memorial Hospital to get the accused medically examined and after his medical examination doctor handed over one sealed parcel along with sample seal having seal of Sanjay Gandhi Memorial Hospital which was seized by the IO vide seizure memo (Ex.PW4/E) and thereafter the accused Deen Dayal Kamat was sent to lock up.
Sessions Case Number : 08 of 2013.
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20. PW6, SI Lokesh Kumar, is the Duty officer who had recorded the FIR (Ex.PW6/A) on the basis of rukka which was produced by W/ASI Sushila.
21. PW9, HC Narender Kumar, is the Malkhana Moharrar. On 27.04.2011, W/ASI Sushila deposited the case property in Maal Khana and entry of the same were made by HC Bahadur in register no. 19 at Sl. No. 282 (Ex.PW9/A) and again deposited blood sample of the accused at Sl. No. 286 (Ex.PW9/B). On 26.05.2011, he sent the pullanda to FSL Rohini through Ct. Chaand Prakash vide RC No. 72/21 (Ex.PW9/C) and the same was deposited at FSL Rohini and the receipt of the same (Ex.PW9/D) was handed over to him by the Constable. On 05.12.2011, result on the pullandas were received in Maal Khana which was brought by Ct. Ganesh Prakash and he handed over the report to IO.
22. PW10, Ct. Verinder Singh Bisht, is the witness of investigation. He had deposed that he along with ASI Sushila and HC Ram Niwas and Mr. Brahm Dev Kamat reached at H.No. 124/1, Paschim Puri and on the pointing out of Mr. Brahm Dev Kamat, accused Deen Dayal Kamat was apprehended by him and HC Ram Niwas and after interrogation, accused was arrested vide memo (Ex.PW4/A) and his personal search was also conducted vide memo (Ex.PW4/B). His pointing out is (Ex.PW4/C) disclosure statement is (Ex.PW4/D). Accused was taken to the Sanjay Gandhi Memorial Hospital for medical examination of accused Deen Dayal Kamat and blood sample were also taken. His blood sample was seized with Sessions Case Number : 08 of 2013.
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the sample seal by memo (Ex.PW4/E) and thereafter accused was put up in the lock up.
23. PW11, ASI Sushila, IO of the case. She has deposed that on 27.04.2011, she was directed by the SHO, PS Paschim Vihar to reach at PS Madipur to join the investigation of the present case. She had met SHO of PS Madipur and he introduced her with prosecutrix along with Mr. Brahm Dev Kamat, owner of placement agency. She further deposed that she recorded the statement of prosecutrix Ms. Viviyani Minj (Ex.PW1/DA) and on the basis of her statement, she made endorsement (Ex.PW11/A) for registration of FIR under Section 376/506 IPC and after making endorsement, she handed over rukka to the Duty Officer for registration of the FIR. Thereafter, she along wth prosecutrix and Mr. B.D. Kamat reached the place of occurrence i.e. House No. 272 Poclet-3, IIIrd Floor roof, Paschim Puri, Delhi and inspected the spot on the pointing out of the prosecutrix. Thereafter, she along with Ct. Anita went to Sanjay Gandhi Memorial Hospital for medical examination of prosecutrix and was got conducted. Then she received sealed pullanda and one sample seal after medical examination of prosecutrix and same were seized through seizure memo (Ex.PW11/B). Thereafter, she returned back to PS and case property was deposited in Mal Khana. The prosecutrix was got counselled from NGO and thereafter she was discharged. She also recorded the statement under Section 161 Cr.P.C. of Mr. Brahm Dev Kamat. On 29.04.2011, the police team along with the prosecutrix and her employer Mr.Brahm Dev Kamat had left for the house of accused for his arrest and on the pointing of the prosecutrix, accused Mr.Deen Dayal Kamat was apprehended and then Sessions Case Number : 08 of 2013.
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arrest vide arrest memo (Ex.PW4/A) and his personal search (Ex.PW4/B) was also prepared. Thereafter, accused was taken to Sanjay Gandhi Memorial Hospital for his medical examination along with HC ram Niwas and Ct. Virender. Thereafter, she received a sealed pullanda and one sample seal and same were seized through seizure memo (Ex.PW4/E) and accused was brought to PS and put in the lock up and case property was handed over to Mal Khana. On 03.05.2011, she got recorded the statement under Section 164 Cr.P.C. of prosecutrix from the learned Metropolitan Magistrate and on 26.05.2011, sealed pullanda and sample seal were deposited as FSL Rohini.
Thereafter, she prepred challan and file was put up before SHO.
MEDICAL AND FORENSIC WITNESSES
24. PW5, Dr. Asha, Sr. (Gynae), Sanjay Gandhi Memorial Hospital, had medically examined the prosecutrix and had prepared the MLC of the prosecutrix as Ex.PW5/A.
25. PW7, Dr. Ajay Kumar, had medically examined the accused Mr.Deen Dayal Kamat and had prepared his MLC (Ex.PW7/A).
26. PW12, Dr. Dhruw Sharma, Assistant Director (Biology), FSL, who had examined the prosecutrix and accused Deen Dayal Kamat and had given a detailed report (Ex.PW12/A) from the FSL and serological report (Ex.PW12/B).
OFFICIAL WITNESS
27. PW8, Ms. Sugandha Aggarwal, learned Metropolitan Sessions Case Number : 08 of 2013.
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Magistrate, Tis Hazari Courts, West District, Delhi has recorded the statement of prosecutrix (Ex.PW2/A). Application for recording the statement of prosecturix (Ex.PW8/A) was moved. Certificate of the proceedings (Ex.PW8/B) was given. IO has identified the prosecutrix.
TESTIMONY OF THE DEFENCE WITNESS
28. DW1, Mr. Rohit Kumar, has deposed that he is working as Secretary in NGO Sampurna Gharelu Kaamgar and Sarvkaiction Uthan Samiti, Nihal Vihar, Delhi. The President of aforesaid NGO is Prabha Munni, his wife. Their organization is registered under the office of Registrar. Prosecutrix came in their office and she met him but he did not remember the date. When he reached his office, she was already present there. She told him that she is having a love affair with Deen Dayal and wanted to marry him. Deen Dayal Kamat was called by him and he made inquiry from him regarding the proposal of marriage of prosecutrix. Deen Dayal told him that he is already married and having children. The prosecutrix gave a written letter to him in the presence of number of public persons who had also signed the said complaint (Mark DW1/A).
29. In his cross examination by the Additional Public Prosecutor for State, he has deposed that he has gone through the contents of Mark DW1/A. He has admitted to be correct that the prosecutrix gave in writing that accused Deen Dayal Kamat had made physical relation with her twice on the assurance of marriage with her but later on upon inquiry it was revealed that accused is already married and has children. Accused has committed wrong by doing physical relation with the prosecutrix on the Sessions Case Number : 08 of 2013.
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pretext of marriage with her. He was well aware that he was already married and having children. He also prays that justice should be done to the prosecutrix. The Mark DW1/A was signed by prosecutrix as well as accused Deen Dayal in his presence.
DISCUSSION, ANALYSIS AND OBSERVATIONS
30. 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 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 Sessions Case Number : 08 of 2013.
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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.
31. Under this sphere, I now proceed to test the submissions of both the sides.
IDENTITY OF THE ACCUSED
32. There is no dispute regarding the identity of the accused Mr.Deen Dayal Kamat. It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR. He is also named in the FIR.
33. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
34. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident as she has herself stated in her complaint (Ex.PW1/DA) as well as her statement under section 164 of the Cr.P.C. (Ex.PW2/A) her evidence that she is 20 years old. The MLC (Ex.PW5/A) also shows her age as 20 years.
Sessions Case Number : 08 of 2013.
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35. Therefore, it is clear that the prosecutrix was a major on the date of alleged offence.
VIRILITY OF THE ACCUSED
36. The accused has been medically examined by Dr.Ajay Kumar (PW7) vide MLC (Ex.PW7/A) wherein it is opined that "There is nothing to suggest that the above person is not capable of performing the sexual aintercourse)" PW7 has not been cross examined by the accused nor the defence of the accused is that he is impotent.
37. This report indicates that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX AND FSL REPORTS
38. The MLC of the prosecutrix (Ex.PW5/A) shows that the hymen is ruptured and no old or fresh tear seen and mentions the history as "sexual assault by accused person name-Deen Dayal 4 months back on 13 Dec 2010". There are no external injury marks.
39. PW5, Dr.Asha has not been cross examined and therefore his testimony and the MLC of the prosecutrix stands impliedly admitted by the accused.
40. The FSL reports (Ex.PW12/A and Ex.PW12/B) also show that human semen was not detected on the exhibits including the vaginal swabs, vulval swabs, pubic hair, clothes of the prosecutrix etc. The same have not Sessions Case Number : 08 of 2013.
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been disputed by the accused and stand impliedly admitted by the accused.
41. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC-Ex.PW5/A), the probability is that rape is not committed.
42. These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor and the FSL reports would have shown the presence of semen.
43. There is nothing incriminating against the accused in the medical and forensic evidence produced by the prosecution.
DEFENCE OF THE ACCUSED
44. In his statement under section 313 of the Cr.P.C., the accused has given mainly three word answers by saying "It is incorrect" to most of the questions or feigning ignorance by saying "I do not know". He has Sessions Case Number : 08 of 2013.
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stated that he is innocent and has been falsely implicated in this case. He was working under Mr.Brahamdev Kamat (PW1) in his placement agency, which used to supply maid and servant. He has got him implicated in the present case by using a planted witness i.e. the prosecutrix (PW2) as he had opened his own placement agency. He was arrested at H. No.65, Ram Darbar Bus stand, Ph-I, Chandigarh.
45. As regards the claim of the accused that he has been arrested from Chandigarh, the IO (PW11) has denied this suggestion and has categorically deposed that he was arrested from the gali (road) outside his house on the pointing out by the prosecutrix. No such suggestion has been given to the prosecutrix.
46. Except for a cursory suggestion to the Mr.Brahm Dev Kamat (PW1) to the effect that the present case was made against the accused by using a planted witness i.e. the prosecutrix (PW2) as he had opened his own placement agency which has been denied by him, the accused has preferred not to lead any evidence in his defence in support of his stand. He has not even given this suggestion to the prosecutrix.
47. Therefore, I am of the considered opinion that there is no veracity in the defence of the accused.
DELAY IN FIR
48. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into Sessions Case Number : 08 of 2013.
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consideration. It is claimed by the accused that as the FIR has been lodged on 27.04.2011 at 21.00 hours while the date of alleged offence as 13.12.2010 and the delay in lodging of the FIR has been not explained by the prosecution.
49. 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.
50. As per the complaint, Ex.PW1/DA, it is mentioned that the offence has been committed on 13.12.2010. The MLC of the prosecutrix (Ex.PW5/A) also mentions the date of offence as 13.12.2010. The prosecutrix in her various statements has also mentioned the date of offence as 13.12.2010.
51. 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. Sessions Case Number : 08 of 2013.
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52. 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. 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.
53. Before coming to the merits of the present case, an argument has been raised by the counsel for the accused regarding the delay in registration of the FIR. In this regard, I may observe that 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.
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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.
54. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, 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.
55. 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 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."
56. 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"
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57. 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"
58. I find on perusal of the record that indeed the criminal action was swung into motion after about four months and fourteen days. 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 incident of 13.12.2010, she went to work at C-96, Kirti Nagar where she worked till 24.03.2011 when she was admitted in the hospital where she remained for some days. No explanation is coming forth from the prosecution as to why she diod not tell her employer at Kirti Nagar about the rape, the doctor attending to her in the hospital and all the others with whom she may have come in contact with between 13.12.2010 and 27.04.2011. She was not under the control of the accused between this period and could have easily disclosed about the incident if she wanted to. She also did not tell immediately on being admitted in the hospital but waited for another 8-10 days. However if this is taken to be true then from 24.03.2011, 8-10 days would be 01.04.2011 to 03.04.2011 but the FIR has been lodged on 27.04.2011. It also cannot be ignored that the prosecution Sessions Case Number : 08 of 2013.
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has neither produced the medical record of the prosecutrix of the Acharya Bhikshu Hospital nor examined any witness to substantiate the stand of the prosecutrix.
59. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
60. Therefore, it can be said that the FIR was lodged after a delay of four months and fourteen days which is fatal to the prosecution story. The delay has not been satisfactorily explained.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
61. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW1, the prosecutrix, as she has taken different stands in her statements.
62. In the Court, during trial, the prosecutrix, as PW2, in her evidence, has deposed that that she came to Delhi in November, 2009 and employed as maid servant in the placement agency of Mr.Brahm Dev Kamat through her friend namely Ms.Geeta. Initially Mr.Brahm Dev Kamat had employed as maid servant in a house at BP-57, Shalimar Bagh, Delhi on 12.12.2009 for one year and thereafter on 12.12.2010 the prosecutrix came back to the placement agency. On 13.12.2010 at about 10:00 p.m., accused Mr.Deen Dayal Kamat had raped her forcibly on the roof of the placement agency when the prosecutrix had gone to bring her clothes from there. The accused pressed her mouth with his right hand from her back and Sessions Case Number : 08 of 2013.
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caught hold of her hand with his left hand and thereafter the accused Mr.Deen Dayal Kamat made her fall on the roof. Thereafter, the accused Deen Dayal Kamat had untied the string of her salwar and then raped her and when the prosecutrix tried to raise alarm, accused Mr.Deen Dayal Kamat gave her leg blows and threatened her that if she tried to raise alarm, he would kill her if she complaint about the incident to anybody. On that day, the owner of placement agency Mr. Brahm Dev Kamat had gone to Jaipur. The prosecutrix could not tell about the incident to anybody due to fear. Thereafter, Mr. Brahm Dev Kamat again got her employed at another place at C-96, Kirti Nagar, Delhi and there the prosecutrix had worked for about one month and thereafter she became seriously ill and she was admitted at Acharya Bhikshu Hospital, Moti Nagar, Delhi by Mr. Brahm Dev Kamat and her treatment continued there for 8-10 days. During this period, the accused Deen Dayal Kamat had visited the hospital and threatened her to remain quiet and not to disclose the incident to anybody otherwise he would kill her. She had told Mr. Brahm Dev Kamat about the incident of rape committed upon her by the accused Deen Dayal Kamat. Thereafter, the prosecutrix along with Mr. Brahm Dev Kamat went to PS Madipur but her complaint was got registered on her next visit. The statement of prosecutrix (Ex.PW1/DA) was recorded by lady police official and she was taken to Sanjay Gandhi Memorial Hospital for her medical examination. Doctor had taken the undergarments and clothes of the prosecutrix. Her statement under Section 164 Cr.P.C. (Ex.PW2/A) was also recorded by Magistrate.
63. The Additional Public Prosecutor, after taking the Court Sessions Case Number : 08 of 2013.
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permission, put leading questions to the prosecutrix in which she has admitted to be correct that the accused had made a false promise to marry her besides threatening to kill her. She has also identified her clothes which she was wearing at the time of her medical examination i.e. one underwear, one pyjami, one shameez, one lay's shirt and one bra as Ex.P1 collectively.
64. In her cross examination by the counsel for accused, she has deposed that she had not gone to her village in Jharkhand in the month of December, 2010. She knew the accused Mr.Deen Dayal Kamat since December 2010 and did not know the accused prior to the date of incident.
She was working in the placement agency of Mr.Brahm Dev Kamat since 2009 in whose contact she had come through one Ms.Geeta. The accused was also an employee of Mr.Brahm Dev Kamat but she did not know whether he used to supervise the maids sent to the homes. She did not receive any injury in other parts of her body when accused Mr.Deen Dayal Kamat raped her. She was conscious when the accused raped her. She was not in a position to push him at that time. She could narrate the incident to Mr.B.D.Kamat when he asked her as to what had happened during her illness. In fact, she was ill due to the threatening given by the accused and she was ill during the complete period of three months when the accused as threatening her. She was suffering from jaundice during this period of three months due to the threat as she was under stress. The accused Deen Dayal Kamat had promised to marry her on the date of alleged incident of rape on the place of incident.
65. In her complaint (Ex.PW1/DA), the prosecutrix has stated that Sessions Case Number : 08 of 2013.
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between 12.12.2009 and 12.12.2010, she was working as a maid at B.P.-57, Shalimar Bagh and returned to the Placement Agency of Mr.Brahm Dev Kamat at H.No.272, Pocket-3, Pashcim Puri as per the service agreement. On 13.12.2010 at 10 pm when she had gone to the roof, accused followed her and raped her. She had tried to resist by shouting and kicking him. He threatened to throw her off the roof from the third floor if she raised alarm. When she said that she will tell the owner of the placement agency who was away to Jaipur, he threatened to kill her. He also told her that after talking to Mr.Brahm Dev Kamat, he shall marry her. She was sent as maid to C-96, Kirti Nagar where out of fear she became unwell and on 24.03.2011, Mr.Brahm Dev Kamat admitted her in Acharya Bhikshu Hospital where the accused came and threatened to kill her. After 8-10 days, she told Mr.Brahm Dev Kamat about the rape since accused was working with him since November, 2010.
66. In her statement under section 164 of the Cr.P.C. (Ex.PW2/A), the prosecutrix has deposed that she works in the same placement agency where the accused Mr.Deen Dayal also works. In the December holidays she had come to her house. She again said that her house is in Jharkhand. On 13.12.2010, she had come to the placement office, Paschim Puri. At about 10 pm, she had gone to the roof to remove her clothes where the accused came and raped her. She had kicked him to save herself. When she said that she will tell everyone, he threatened to push her off the roof and told her that he would marry her. Then she left for another job where she worked for two months and the accused continued to threaten her. Then she became unwell and got herself admitted in hospital Sessions Case Number : 08 of 2013.
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and told about the incident to the owner of the placement agency who reported the matter to the police.
67. The prosecutrix has taken different stands and given different versions of the alleged incident in her complaint to the police, her statement under section 164 of the Cr.P.C. and her evidence before the Court. The same are being tabulated below:
Evidence of the Statement of the Complaint of the prosecutrix as PW2 prosecutrix under prosecutrix to the section 164 of the police Cr.P.C.
She knew the accused She works in the same No such deposition.
Mr.Deen Dayal placement agency
Kamat since where the accused
December 2010 and Mr.Deen Dayal also
did not know the works.
accused prior to the
date of incident.
No such deposition. In the December No such deposition.
holidays, she had come
to her house.
She became seriously She became unwell and She became unwell
ill and she was got herself admitted in and on 24.03.2011,
admitted at Acharya hospital Mr.Brahm Dev
Bhikshu Hospital, Kamat admitted her in
Moti Nagar, Delhi by Acharya Bhikshu
Mr. Brahm Dev Hospital
Kamat
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FIR No. 59/11, Police Station Madipur,
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Accused Deen Dayal No such deposition. Accused came in the
Kamat had visited the hospital and
hospital and threatened to kill her.
threatened her to
remain quiet and not
to disclose the
incident to anybody
otherwise he would
kill her.
She could narrate the She told about the She told Mr.Brahm
incident to incident to the owner of Dev Kamat about the
Mr.B.D.Kamat when the placement agency. rape since accused
he asked her as to was working with him
what had happened since November,
during her illness. 2010.
She was ill due to the She became unwell Out of fear, she
threatening given by became unwell
the accused and she
was ill during the
complete period of
three months when the
accused as threatening
her. She was suffering
from jaundice during
this period of three
months due to the
threat as she was
under stress.
Her treatment No such deposition. After 8-10 days of her
continued there for admission in hospital,
8-10 days. she told Mr.Brahm
Dev Kamat about the
rape.
68. The prosecution has failed to furnish any explanation in respect Sessions Case Number : 08 of 2013.
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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 of victim suffer 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.
69. 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."
70. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
71. When in her statement under section 164 of the Cr.P.C., the prosecutrix has stated that in December, 2010 she had gone to her house (Jharkhand), then obviously the alleged offence could not have been Sessions Case Number : 08 of 2013.
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committed since the date is of 13.1.2.2010.
72. It is not in dispute that the prosecutrix was free to move about but apparently has not made any complaint to anyone nor raised alarm at any point for help.
73. 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.
CONTRADICTIONS IN THE EVIDENCE OF PW1 AND PW2
74. Further, there are contradictions in the evidence of the prosecutrix (PW2) and the owner of the placement agency (PW1) which are tabulated below.
PW1 PW2 He returned from Jaipur between On return from Jaipur, PW1 got the 15.12.2010 to 20.12.2010. On prosecutrix employed at Kirti Nagar. 02.01.2011, he got the prosecutrix employed at the house of Kamal Singh at H.No.C-96, Kirti Nagar. After 10-15 days of her employment She worked at Kirti Nagar for about in Kirti Nagar, the prosecutrix a month. became ill so she was brought to the placement agency and then admitted in hospital. She remained admitted for 5-6 days Her treatment continued for 8-10 and brought back to the placement days. agency where she told him about the incident of 13.12.2010. He had employed the accused in She did not know the accused prior Sessions Case Number : 08 of 2013. Unique Case ID Number : 02401R0278362011 FIR No. 59/11, Police Station Madipur,
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June, 2010. Accused brought the to the date of incident. prosecutrix from the house at Shalimar Bagh.
He cannot say whether the accused Accused visited the hospital and also visited the hospital during the threatened her. treatment of the prosecutrix.
75. No explanation is coming forth from the prosecution regarding the above contradictions in the evidence of the material witnesses which is also fatal to the prosecution story.
76. 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 of victim suffer 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.
SECTIONS 376 AND 506 OF THE IPC
77. In the present case, the charge sheet was filed under sections 376/506 of the IPC and the charge for offence under sections 376 and 506 of the IPC was framed against the accused.
78. 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:-
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"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......"
79. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
80. Section 506 of the IPC requires that the impact of the alleged threat should be such that the victim is unable to even seek help.
81. In the present matter, it is clear that the offence is alleged to have been committed in an office where there are presumed to be other people also. There is no reason shown why the prosecutrix did not disclose about the incident of rape and threat after coming down from the roof, after going to Kirti Nagar to work, after her admission in the hospital and even Sessions Case Number : 08 of 2013.
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later. Apparently, the threat was not of such nature where she would feel scared for four months and fourteen days and then suddenly the impact of the threat would disappear and she could disclose about the incident to PW1 who took her to the Police Station for lodging the complaint.
82. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape or threat. 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. It appears from the evidence that it is not a true case.
83. The prosecutrix was living and working in city like Delhi. There was nothing to stop her from disclosing about the incident, if it ever occurred. She has been in contact with the other workers and inmates of the placement agency, her new employer at Kirti Nagar, the doctor and other hospital staff etc. If the accused had actually raped her, she had more than ample opportunity to disclose it to the others. From the conduct of PW2, the prosecutix, it is clear that PW2 is deposing falsely as if such an incident took place, there was nothing to stop her from immediately disclosing it.
PROMISE TO MARRY AND PHYSICAL RELATIONSHIP
84. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and Sessions Case Number : 08 of 2013.
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incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him.
85. On the other hand, it had argued by the counsel for the accused that no such incident ever took place.
86. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
87. Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of mind."
88. In Words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American Courts are found:
".....adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
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89. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her."
90. Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
91. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be said that Sessions Case Number : 08 of 2013.
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it is a misconception of fact or that her consent has been obtained by fraud. It is clear that the prosecutrix accepted whatever physical relationship was there with her free consent.
92. Also, there is no explanation coming from the prosecution as to why should she keep it a secret from all if really she had belief in that promise of marriage. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise.
93. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry cannot be said to be under a misconception of fact as she was a major at the time of the alleged incident and intelligent enough to understand the consequences of establishing physical relationship with the accused. Mere promise to marry on an uncertain date does not indicate that the accused has obtained her consent for the physical relationship by fraud or misrepresentation. Consent given by the prosecutrix to have physical relationship with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under misconception of fact.
94. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped as her consent is not free.
MENS REA / MOTIVE
95. Regarding the motive of crime, it may be observed that in a case Sessions Case Number : 08 of 2013.
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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 consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
96. 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.
97. 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 Sessions Case Number : 08 of 2013.
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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 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.
98. In the present case, a story has been projected that the accused has raped and threatened the prosecutrix and this version appears to be untrue as there is no reason why he would do so. There does not appear to be any criminal intention and mens rea on the part of the accused.
CONCLUSION
99. Since the prosecutrix as PW2 have not deposed anything incriminating against the accused and also there are overwhelming contradictions in her different statements, the conscience of this Court is 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.
100. Where the prosecutrix had sufficient opportunity not only to run away from the accused but she could have taken the help of the neighbours Sessions Case Number : 08 of 2013.
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and medical evidence also indicated that there were no injuries on the person of the prosecutrix, it can be said that the offence was not committed.
101. 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 or threatening by 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.
102. It is not possible that the accused on 13.12.2010 at about 10.00 p.m. at the roof of H.No. 272, Pocket-3, IIIrd Floor, Paschim Puri, Delhi, committed rape with prosecutrix without her free consent and on the aforesaid time, place and also at Deen Dayal Upadhyay Hospital, he had threatened the prosecutrix with threat to her life.
103. 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 Sessions Case Number : 08 of 2013.
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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.
104. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Deen Dayal Kamat stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor at the time of the alleged incident i.e. 13.12.2010. It also stands established that the accused had neither raped her nor threatened to kill her. There is no incriminating evidence against the accused.
105. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape or threat to kill. 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.
106. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped and threatened.
107. 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.
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108. Accordingly, Mr.Deen Dayal Kamat, the accused, is hereby acquitted of the charges.
109. 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 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.
110. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
111. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
112. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
113. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Sessions Case Number : 08 of 2013.
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Announced in the open Court on (NIVEDITA ANIL SHARMA) this 25th day of March, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 08 of 2013.
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State versus Deen Dayal Kamat. -:: Page 44 of 44 ::-