Delhi District Court
State vs . Jaspal Singh @ Sonu Page No. 1/28 on 7 January, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0115592014
SC No. : 117/14 and 1773/16
FIR No. : 407/14
U/s. : 376/506/354A/354C IPC
PS : Govind Puri, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Jaspal Singh @ Sonu
S/o Shri Avtar Singh
R/o House no. 569
Gali no. 6, Govind Puri,
New Delhi. .........................Accused
Date of Institution : 27.05.2014
Judgment reserved for orders on : 20.12.2016
Date of pronouncement : 07.01.2017
J U D G M E N T
FACTS :
1. The accused Jaspal Singh has been sent to stand trial for the offences punishable u/s 376/506/354A and 354C IPC on the allegations that on 15.03.2014 at about 8.00 p.m, at H. No. 527, Village Poot Kalan Delhi, he committed sexual intercourse with the prosecutrix ( name withheld to protect her identity) against her will FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 1/28 and without her consent. He also criminally intimidated the prosecutrix by threatening her to show her images and that of her sister in public in case she would not adhere to his demands of sexual favours.
2. Briefly the facts are that on 14.04.2014, the prosecutrix came at the police station Govind Puri and gave a complaint alleging that she was married to Deepak Sharma on 20.05.2009. He has a photo studio at Gali No. 4 Govind Puri where her fatherinlaw used to sit. She used to live on the fourth floor of her house. Her fatherin law and his daughter used to live on the third floor. Her inlaws used not to allow her to come downstairs from the fourth floor. The character of her fatherinlaw was not good. After the death of her motherinlaw about three years ago, he started behaving indecently with her. He used to come in her room. About two years ago, one day, he entered her room and molested her. He also attempted to have sexual intercourse with her. He informed her mother. A panchayat was held. For about one year, she lived in her parental house.
She alleged that on 25.01.2014, she with her husband and younger sister went to Palampur, Himachal Pradesh. Her husband's friend Mani who used to live in Gali No. 6 also went with them with his wife. There, Mani took their photographs and their mobile numbers. They returned from there on 31.01.2014.
FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 2/28 She alleged that the accused was the friend of Mani. He gave their mobile numbers to the accused who used to work as builder in gali no. 6. He was the goon of the area. No one could dare to speak against him. In the first week of March, accused called on the mobile phone of her sister and made obscene talks. She told it to her inlaws. In the meantime, accused also called her on her mobile phone and asked her to keep in touch with him. She refused but her fatherinlaw and husband told her that since she is married and if the accused does any illegal act, she should not make complaint against him. She alleged that the accused threatened her and said that if she would not talk to him, he would enter her house. One day, at night, when she did not take his call, he started throwing stones on her house from the house in front of her house. When she complained to her husband and fatherinlaw, they asked her to close the door. They did not say anything against the accused.
She alleged that on 15.03.2014, at about 8.00 p.m, accused forcibly entered her room on the fourth floor. At that time, her husband and fatherinlaw were in the studio and her sisterinlaw Jyoti was out of the house. He threatened her to kill. He bolted the door from inside, made her lay on the bed and committed rape upon her. He threatened her that if she told it to anyone, he would defame and kill her. He also said that he has her photos and that of her sister which Mani had given to him. She got scared. She told it to her FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 3/28 husband and fatherinlaw but they made her quiet. They telephoned at her house complaining that she has been suffering from bhootpret. Her mother got her checked from the doctor. On 30.03.2014, she was again sent to her inlaws house and was asked to take her to Balaji since she was under shock because of the incident caused by the accused. She alleged that the accused used to make calls to her. She wanted to commit suicide but her husband locked her from outside. He snatched her mobile phone. In the meantime, the accused started making obscene calls to her sister on her mobile phone. He threatened her that if she would support her, he would do the same thing with her. He also asked her to come at Govind Puri. On 04.04.2014, he sent an obscene message on the mobile phone of her sister. On 07.04.2014, she got fed up and returned to her parents house. Her sister being scared from the accused called the police at 100 number at 10.15 p.m on the same day. She alleged that her in laws instead of taking action against the accused supported him. INVESTIGATION :
3. On her complaint, the case was registered u/s 376/354/506/120B IPC. The prosecutrix was sent to AIIMS for her medical examination. In the history given to the doctor, she alleged that on 15.03.2014, her neighbour forcibly entered her house when she was alone and committed sexual intercourse with her. On 15.04.2014, her statement u/s 164 CrPC was got recorded. She alleged FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 4/28 that Ashok Puri used to instigate her husband. On 16.04.2014, the accused was arrested. From his possession, his mobile phone make Samsung was recovered. No photographs could be recovered from the possession or at the instance of the accused. He was got medically examined at AIIMS. The doctor found him capable of performing sexual intercourse under normal circumstances. During investigation, statement of sister of prosecutrix was recorded and her mobile phone make Micromax was seized. The mobile phones were sent to the FSL to retrieve the data. The Call Details Record were also collected.
After the investigation, the chargesheet was filed against the accused. CHARGE :
4. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 18.07.2014, prima facie case was made out against the accused u/s 376/506/354A and 354C IPC. Charge was framed. He pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
5. To substantiate its allegations against the accused, prosecution examined as many as ten witnesses.
PW1 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence. PW2 Lady Ct. Savita took the prosecutrix to AIIMS for her medical examination.
FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 5/28 PW3 Dr. Richa Vatsa did the medical examination of the prosecutrix vide MLC Ex.PW1/C. She did not find any external injury on her person. She stated that samples were not taken as the incident was one month old.
PW4 Ms. Pooja is younger sister of the prosecutrix. She stated that the prosecutrix was married to Deepak Sharma in 2009. The behaviour of her inlaws was not good towards her. Her husband left her in their house where she stayed for a year. She had told her that her father inlaw used to tease her. Her Tauji and other family members went to her inlaws house and thereafter, she went to her inlaws house but the behaviour of her inlaws did not improve. On 25.01.2014, she alongwith the prosecutrix, her husband, his friend Mani and his wife went to Himachal Pradesh for a week. During that period, Mani took their mobile numbers and their photographs. After return, her sister went to her inlaws house. She stated that after one and half week, accused called her on her mobile phone and introduced himself as Rishab. He told her that he FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 6/28 wanted to talk to her but she snubbed him saying that she would report to the police. Thereafter, he telephoned to the prosecutrix several times from the same number. She again snubbed him saying that if he would call the prosecutrix or her, she would make complaint against him. Thereafter, she received a call from the wife of the accused as she had doubt on him but she told her that she never called the accused rather he called them frequently. From the wife of the accused, she came to know that accused had obtained their mobile numbers from Mani. She stated that on 04.04.2014, accused sent her an abusive message. She then informed the police.
She stated that on 07.04.2014, her sister came at their house from her inlaws house. She was weeping. She told her that on 15.03.2014, accused Sonu entered her room when she was alone and committed rape upon her. Her father used to work at Narnaul, Haryana. He came in the house on the following Saturday. They narrated him the incident and then he made the complaint to the police. She stated that she does not FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 7/28 remember the mobile number of the accused. On being crossexamined, she stated that accused used to call and send SMS to her. Since the accused did not use any abusive language in the SMS or on phone for about two months, she did not make complaint against him. She admitted that on 28.03.2014, her sister / prosecutrix had come at her house and stayed there for two days and during those days she did not disclose them about the incident. She stated that she did not receive any SMS after 04.04.2014. She stated that her sister became more conscious and afraid when she told her that accused had sent her obscene SMS.
PW5 Dr. Hari Prasad did the medical examination of accused vide MLC Ex.PW5/A and found him capable of performing sexual intercourse under normal circumstances. PW6 Ms. Neha recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/B. PW7 SI Gurjeet Chahal was with WSI Kiran when the accused was arrested from Gali no. 6, Govind Puri. He stated that a mobile phone was FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 8/28 recovered from his personal search vide memo Ex.PW7/B. PW8 HC Dev Anand recorded the FIR Ex.PW8/A. PW9 W/SI Kiran Sood was the Investigating Officer of the case. She deposed on the lines of the investigation and tendered the FSL report Ex. PW 9/E. She also collected the CDR pertaining to mobile number 9999923777 belonging to the accused and mobile number 9654470354 belonging to the sister of the prosecutrix for the period from 03.03.2014 to 04.04.2014.
On being crossexamined, she stated that she does not know if any case u/s 498A/406 IPC is pending on the complaint of the prosecutrix. She stated that she had made enquiry from the neighbours but they did not state anything. She did not verify whether the prosecutrix had gone to the doctor on 30.03.2014.
PW10 SI Pravesh Kasana was on emergency duty on 14.04.2014. He received the complaint Ex. PW 1/A from the prosecutrix and got the case registered.
FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 9/28 STATEMENT OF THE ACCUSED U/S 313 CR.P.C. :
6. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that he did not make any call nor threw stones at the house of the prosecutrix. He admitted his mobile number but stated that he never threatened the prosecutrix nor asked her to make relations with him. On 15.03.2014, he was at Chandiwala Hospital, Okhla since on that day, his friend was blessed with a son.
He stated that he never went to the house of the prosecutrix nor raped her and she lodged a false complaint against him. He denied having sent any SMS to Pooja. He stated that his wife never suspected him nor called the prosecutrix or her sister at any point of time nor he sent any message to PW4.
DEFENCE EVIDENCE :
7. In defence, the accused examined two witnesses DW1 Ramesh Kumar runs a hotel in Gali NO. 7 Govind Puri. He stated that the staircase for going to H. No. 793 was from outside. On 15.03.2014 at about 8 p.m, he did not see anyone going on the fourth floor nor he saw the accused at any point of time going to the fourth floor of the house. On being crossexamined, he admitted that sometimes FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 10/28 his attention diverts to some other places.
DW2 Deepak Saini is the friend of the accused. He stated that on 14.03.2014 at 7.30 p.m, his wife had given birth to a baby boy at Chandiwala Hospital Kalkaji. In the evening, the accused with his wife had come to see the child. On 15.03.2014, when his wife was discharged from the hospital, the accused and his wife were present. They dropped them in their car to their house and remained there till 10.00 p.m. He stated that the accused is his childhood friend. He proved the discharge summary Ex. PW 2/A and stated that though he had told the police that the accused was with them on that day but the police did not listen and asked him to say in the court whatever he wanted to say.
ARGUMENTS & CONTENTIONS :
8. I have heard the arguments advanced by Ld. Counsel Sh.
R.P. Kasana for the accused and Mohd. Iqrar Ld. Addl. PP for the State.
9. Ld. counsel for the accused vehemently argued that the prosecutrix did not have good relations with her inlaws. She had made false allegations of molestation against her fatherinlaw also.
FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 11/28 Ld counsel stated that the accused never met the prosecutrix nor sent SMS to her and her sister and he has been falsely implicated. The prosecution did not examine Mani from whom the accused allegedly took the mobile numbers of the prosecutrix and her sister. No photographs allegedly taken by Mani were collected during investigation. Fatherinlaw and husband of the prosecutrix and her parents were not examined by the prosecution. There was delay of about 30 days in lodging the FIR. No record from the PCR was collected as to the call allegedly made by the sister of the prosecutrix. FSL report does not show any obscene messages. Ld counsel stated that the accused never went to the house of the prosecutrix on 15.03.2014, he was present with DW2 and his family which fact is duly proved by DW2.
10. Ld. Addl. PP on the contrary argued that the prosecutrix was harassed by her inlaws. Her fatherinlaw even attempted to commit rape upon her when no one was in the house. She was confined in the room on the fourth floor by her inlaws. The accused got the number of the prosecutrix and her sister from Mani with whom the prosecutrix and her husband had gone to Palampur Himachal Pradesh. The accused started making calls to the prosecutrix and her sister. He also sent them obscene messages. She also made complaint to her inlaws against the accused but they did not pay any heed. On 15.03.2014 when no one was present in the FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 12/28 house, the accused forcibly entered her room and committed rape upon her. He also threatened her that if she and her sister would not respond to his calls, he would do the same act with her sister. She returned home and told the incident to her father who thereafter made the complaint. Ld Addl. PP stated that the prosecutrix was so much scared from the accused that she could not muster courage to lodge complaint against the accused. Ld Addl. PP stated that DW1 and DW2 are the friends of the accused and their testimony is unworthy of credence. Ld Addl. PP stated that the testimonies of the prosecutrix and her sister are trust worthy and are sufficient to base conviction of the accused.
Findings :
11. I have considered the arguments and gone through the entire material on record.
12. Section 375 IPC defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) .......
(c) .......
(d) .......
under the circumstances falling under any of the following seven descriptions: First against her will.
FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 13/28 Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
13. Section 354A IPC defines sexual harassment and punishment for sexual harassment. It reads as:
A man committing any of the following acts
(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) A demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
14. Section 354C IPC defines Voyeurism. It reads as:
Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 14/28 which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. Explanation 1. - For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
Explanation 2. - Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.
15. Section 506 provides punishment for criminal intimidation.
16. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent. Whether the accused is guilty of the offences punishable u/s 376/506/354A and 354C IPC or not?
FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 15/28
17. For deciding this question, it is relevant to discuss the testimony of the prosecutrix.
18. PW1 / prosecutrix testified on oath that she was married to Deepak Sharma on 20.05.2009. He was running a photo studio at Gali no. 4, Govindpuri, New Delhi. Her fatherinlaw used to sit in the same studio. She had been living with her husband on the fourth floor. Her fatherinlaw with his daughter and two sons had been living on the third floor. Her motherinlaw died three years ago. She stated that after her marriage, her fatherinlaw harassed her. He used to tease her. Once he attempted to commit sexual intercourse with her. It happened after the death of her motherinlaw. She told this incident to her parents. She then went to her parental home where she remained for one year. A panchayat was called and thereafter, her parents took her to her matrimonial house. She stated that in January 2014, she with her husband, her younger sister Pooja, Mani, friend of her husband and his wife went to Himachal Pradesh for a week. Mani used to live in Gali No. 6, Govindpuri. There he obtained her mobile number and that of her sister. Later, he passed their numbers to the accused. She did not know the accused from before. She stated that the accused thereafter started calling her and her sister. Whenever she did not pick up his phone, he pelted stones at her house. She told the incident to her fatherinlaw and her husband but they instead said that the accused FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 16/28 is a criminal, "tu to shadishuda hai, isse koi farak nahi padta". She stated that the accused used to threaten her on phone that if she would not talk to him, he would come at her house and throw stones. He also asked her to make relations with him. He threatened her that if she disclosed it to anyone, he would commit rape of her sister. She did not make complaint because she was scared. When she complained to her husband, he and her fatherinlaw gave her beatings and told her not to make complaint against the accused.
She stated that on 15.03.2014 at about 8.00 pm, when she was alone in the house, the accused entered her room forcibly and committed rape upon her after bolting the room from inside. He threatened her not to make complaint lest he would get her killed and he would defame her. When she told it to her husband, he asked her to say that it had happened with her consent lest he would divorce her. She also complained to her fatherinlaw but he said "tu shadishuda hai, koi baat nahi, baat dab jayegi". She stated that she could not complain to her parents since her husband had snatched her mobile phone and did not allow her to make call. She stated that after 15 days, her husband called her father to take her back since suffering from Bhootpret. Her mother came and took her. After the incident, she went into depression. When her father asked her as to what happened, she narrated him the incident. On his advise, she made the complaint Ex.PW1/A. She also proved her statement Ex.PW1/B FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 17/28 given to the Magistrate.
She stated that once, her sister had called the police at 100 number when the accused was harassing her. He had sent her obscene messages. She stated that the mobile number of the accused from which he used to call her was 9999923777 however she does not remember her mobile number. She proved her MLC Ex.PW1/C and stated that she does not know if the accused Sonu is related to her in laws.
On being crossexamined, she stated that she does not know who was living on the first and second floor of their building. She stated that she was not allowed to go to the said floors by her in laws. She stated that she does not have good relations with her sister inlaw as she used to scold her. She denied that on account of her bad behaviour and habit of making false allegations, she was sent by the Panchayat to her parent's house and later she apologized and thereafter her inlaws accepted her. She admitted that after she returned from there, her relations with her husband were pretty bad. He even did not make physical relations with her for months together. He did not want child from her. He used to address her mentally unstable. She admitted that the photos taken by Mani during the tour at Palampur were not obscene. She stated that she did not see the accused with Mani at any time nor she went to the office of the accused at Gali No. 6. She stated that the accused did not meet her at FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 18/28 any time prior to 15.03.2014. She also admitted that she did not see the accused throwing stones at her house. She stated that when the accused entered her room, she raised alarm but no one heard. She did not know that the accused is married. She denied that the accused did not come in her room on 15.03.2014 or at that time, he was with his friend DW2. She admitted that she did not sustain any injury. She stated that she told the incident to her parents after one or two days of her leaving the house of her inlaws. Her mother had taken her to the doctor but she did not tell the incident to the doctor. She admitted that she did not inform the police when the accused threatened her. She did not raise hue and cry after the accused left her room. She stated that she did not hand over her clothes to the police since she had given them to a beggar. She stated that the accused used to call her 3/4 times a day after she returned from Himachal Pradesh but she never called him. She admitted that if anyone climbs the stairs, he can be noticed by the shopkeepers. She stated that the accused used to throw stones from the roof of the house in front of her house. She stated that she does not remember the date when the accused sent obscene message to her sister. She stated that as on now, she has been living separately from her husband. She stated that she told the incident to her parents after her sister complained against the accused regarding sending of obscene messages by him.
19. On an analysis of the testimony of the prosecutrix, I find FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 19/28 that the prosecutrix was married to Deepak on 20.05.2009. Her husband had a photo studio at Gali No. 4, Govindpuri. She was not having cordial relations with her husband. Because of her strained relations from her inlaws, she went to her parental home where she lived for about a year. A panchayat was held and thereafter, she returned to her matrimonial house. Although she went with her husband to Palampur, Himachal Pradesh but their relations never remained cordial.
20. PW1/prosecutrix has stated that her fatherinlaw used to tease her. Once after the death of her motherinlaw, he attempted to have sexual intercourse with her. When she told the incident to her parents, they brought her to their house where she stayed for about a year. A panchayat was held and thereafter, her parents sent her to her matrimonial home. In the instant case, the prosecution did not examine the parents of the prosecutrix nor anyone from the panchayat as to what was the reason which made the prosecutrix leave her matrimonial house.
21. PW1/prosecutrix has stated that the accused obtained her mobile number as well of her sister from Mani. He started calling her and her sister. Whenever she did not pick his phone, he threw stones at her house. Her testimony shows that she did not see the accused throwing stones. It is strange that the incident of throwing stones by the accused remained unnoticed by the other family members of the FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 20/28 prosecutrix or her neighbours. She has stated that when she complained to her fatherinlaw and husband, they told her that the accused is a criminal and "tu to shadishuda hai, isse koi farak nahi padta". She has stated that the accused used to threaten her and ask her to make relations with him lest he would rape her sister. When she complained to her husband and her fatherinlaw, they gave her beatings and threatened her not to make complaint against the accused. When she told the incident of 15.03.2014 to her husband, he advised her to say that it happened with her consent. If she would not say so, he would not keep her and divorce her. Her fatherinlaw told her "tu shadishuda hai, koi baat nahi, baat dab jayegi". She has stated that she could not complain to her parents about the incident since her husband had snatched her mobile phone. He, after 15 days, called her father and asked him to take her back, since she has been suffering from bhootpret. Her mother came to her inlaws house and took her back. She went into depression. When her father asked her as to what happened, she told him the incident and then the complaint was made. I am unable to digest this fact that the husband of the prosecutrix instead after coming to know of the incident had advised her to say that it happened with her consent or her fatherinlaw would ask her to keep quiet. Even when she returned to her parental home, she did not tell the incident to her parents. Her testimony shows that she was taken to the doctor by her mother even there she FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 21/28 did not tell the incident. Her testimony shows that when the accused sent the obscene message to her sister and she called the police, she gave the complaint Ex. PW 1/A. I failed to understand why she waited for so long to make complaint about the incident to her parents. PW1/prosecutrix has stated that when she complained to her husband about the incident, he snatched her mobile phone and did not allow her to talk to her parents. Perusal of her testimony would show that even after the incident, the accused telephoned and threatened her to talk to him lest he would do the same thing with her sister. He used to call her frequently. The question arises when the telephone was not with the prosecutrix how the accused made calls to the prosecutrix after the incident.
22. In the instant case, the mobile phones collected from the prosecutrix and the accused were sent to the FSL. Some photographs were retrieved which cannot be said to be obscene. The prosecutrix and PW4 have stated that the accused sent obscene messages to them. In the instant case, no such message was placed on record. The accused has categorically denied having sent any such message to the prosecutrix or PW4. PW4 has stated that she had made call to the police at 100 number when the accused sent her messages but in the instant case no such record was produced.
23. The incident of rape allegedly took place on 15.03.2014. The report was lodged by the prosecutrix on 14.04.2014. PW4, in her FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 22/28 testimony, has stated that on 28.03.2014 the prosecutrix had come at her house and stayed there for two days and during those two days, she did not disclose them the incident. The prosecutrix has stated that she had told the incident to her parents after one or two days of her leaving her inlaws house and her mother had taken her to the doctor. She then stated that she told the incident to her parents after her sister complained against the accused regarding sending of obscene messages by the accused. In the instant case, the prosecution did not examine the parents of the prosecutrix. In the absence of their examination, it is not known when the prosecutrix told them the incident. Looking into these facts, the delay proves fatal to the case of the prosecution. In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive evidence contributes to the doubt in the prosecution case. In the case of Vijayan vs. State of Kerala (2008) 14 SCC 763, the incident took place seven months prior to the date of lodging of complaint. No complaint or grievance was made either to the police or to the parents prior thereto. It was held that in cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 23/28 supportive evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape.
24. The defence of the accused is that on 15.03.2014, he was with his friend i.e DW2 since on that day, the wife of the DW2 was discharged from the hospital and he was with his wife in the house of the accused. DW2 has corroborated this fact. He has placed on record, the documents as to the discharge of his wife on 15.03.2014. I do not find any reason to disbelieve DW2. The Apex Court in Ram Singh case Crl. App. No. 932/2009 held that the evidence tendered by defence witness cannot always be termed to be tainted one. The defence witness is entitled to equal term and equal respect as with of the prosecution. The issue of credibility and trustworthiness will also to be attributed to the defence witness at par with that of the prosecution. It was held in the case of Dudh Nath Pandey Vs. State of UP AIR 1981 SC 911 that defence witnesses are entitled to equal treatment with those of the prosecution and the Court ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.
25. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 24/28 court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
26. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
27. In the instant case, there are material contradictions and improbabilities in the testimony of the prosecutrix/PW1 and PW4 which raise considerable suspicion on the veracity of the prosecution case. The testimony of the prosecutrix cannot be said to be of sterling quality to base conviction of the accused. Who can be termed as sterling witness has been dealt in the case of Rai Sandeep @ Deepu FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 25/28 Vs. State of NCT of Delhi, 2012 (131) DRJ, 3SC, it was held: "In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version 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 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 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 everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently 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 circumstantial 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 similar such tests to be applied, it can be held 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 guilty can be punished. To be more precise, the version of the said witness on the core FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 26/28 spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in 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".
28. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record".
Conclusion FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 27/28
29. For the aforesaid reasons, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I therefore, acquit the accused Jaspal Singh @ Sonu of the offences punishable under section 376/506/354A/354C IPC giving him benefit of doubt. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 50,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. The mobile phone be returned to its lawful owner after the expiry of period of appeal.
30. File be consigned to the Record Room.
Announced in the open court today i.e. 07.01.2017 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 407/14 PS : Govind Puri State Vs. Jaspal Singh @ Sonu Page No. 28/28