Delhi District Court
State vs . Devender Singh Page No. 1/17 on 24 October, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No.: 02406R0054962016
SC No. : 32/16 and 1694/2016
FIR No. : 1323/15
U/s : 376/506 IPC
PS : Amar Colony, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Devender Singh
S/o Late Kulwant Singh
R/o C20, DDA Flats, Garhi,
Main Market, East of Kailash,
New Delhi. ..............Accused
Date of Institution : 01.03.2016
Judgment reserved for orders on : 23.10.2017
Date of pronouncement : 24.10.2017
J U D G M E N T
FACTS :
1. The case of the prosecution in nutshell is like this. On 22.12.2015, a call vide DD 16A at 1422 hours was received at the police station Amar Colony, New Delhi about a quarrel near Sai Baba temple. HC Shyam Sunder with Ct. Sanjay went to the spot and met the prosecutrix ( name withheld to protect her identity) who alleged that her known Pappu runs a business of committees. She was also the member in the committees. At about 1.00/2.00 p.m, she went to the house of Pappu at Garhi on the first floor and asked him to give her Rs. 5,000/.
FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 1/17 When she entered his house, he bolted the door from inside and pulled her. He then committed sexual intercourse with her forcibly. He also committed unnatural sex with her. She could not raise alarm since he threatened her that he would tell it to her children. After coming downstairs, she called at 100 number.
2. On her statement, the case was registered u/s 376/377/506 IPC. The prosecutrix was sent to AIIMS for her medical examination. In the history narrated to the doctor, she alleged that she had gone to her known to collect money where she was raped by ( Pappu). She was forced to remove her clothes. On examination, no physical injury was found on her person. Her exhibits i.e nails, pubic hair, scalp hair, vulval smear, vaginal swab, vaginal smear, vulval swab were taken by the doctor and handed over to ASI Saroj Bala. The salwar and underwear of the prosecutrix and the bed sheet from the spot were also collected. Statement of the prosecutrix u/s 164 CrPC was got recorded where she stated that she was the member in the committees being run by the accused and his wife Seema. On 23 times, they gave her money but on 23 times, they did not. They told her that they would give their house in lieu of money. She had asked them to make an agreement in this regard but they told her that from that money, no house can be purchased. When she asked him (Pappu) to return the money, he blackmailed her. At about 1.00 p.m, Pappu called her in his house to give her money. He molested and committed rape upon her.
3. During investigation, the prosecutrix handed over some documents i.e photocopy of a diary containing the accounts of the committees dated 20.09.2014 and 18.02.2014, photocopy of HDFC bank cheque bearing the signature of the accused and the copy of complaint FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 2/17 dated 23.08.2015. The accused was arrested on 08.01.2016. He was got medically examined qua his potency. No external/internal injuries were found on his person. He was found capable of performing sexual intercourse under normal circumstances. His blood in gauze, pajama, penile swab and control swab were taken and handed over to the police. His shirt, jeans pant, underwear and a woollen pajami were also collected and seized. The exhibits were sent to the FSL. As per the FSL report, blood was detected in the blood in gauze of the accused. Human semen was also detected on the salwar of the prosecutrix. The exhibits were subjected to DNA isolation. Male DNA profile was generated from the source of blood in gauze of the accused however DNA profile could not be generated from the source of salwar.
4. After the investigation, the accused was sent for trial for the offences punishable u/s 376/377/506 IPC.
5. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court. CHARGE :
6. Prima facie case was made out vide order dated 26.04.2016 and the charge was framed against the accused for the offences punishable under section u/s 376 and 506 IPC. He pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
7. To substantiate its allegations against the accused, the prosecution examined as many as nine witnesses. PW1 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence. PW2 ASI Shyam Sunder had gone to the spot on receipt of DD Ex. PW 2/A regarding the quarrel. He was present when the prosecutrix gave her FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 3/17 statement Ex. PW 1/A to ASI Saroj Bala. In his presence, bed sheet from the room was seized vide memo Ex. PW 1/G. He also witnessed the seizure of the clothes of the prosecutrix vide memo Ex. PW 1/E. He stated that the prosecutrix was alone when he met her. The spot is situated in a crowded area and there is a market nearby. He admitted that there used to be monetary transactions of the committees between the accused and the prosecutrix. He had given statement Ex. PW 2/DA to the IO. PW3 Dr M Sandeep proved the MLC of the prosecutrix Ex. PW 1/B. He stated that there was no history of physical injury or assault nor there were signs of physical injuries/bruises and it was a case of old tear of hymen. PW4 ASI Suresh Chand proved the recording of FIR Ex. PW 4/A. PW5 is the husband of the prosecutrix. I will discuss his testimony at the time of appreciation of evidence. PW6 Ms Manisha Khurana Kakkar, Ld MM recorded the statement of prosecutrix u/s 164 CrPC Ex. PW 1/C. PW7 Yogesh had taken the accused to the hospital for his medical examination. PW8 HC Sanjay Singh had gone with PW2 on receipt of DD. PW9 ASI Saroj Bala was the investigating officer of this case. She deposed on the lines of the investigation. She proved the FSL report Ex. PW 9/F. She stated that when she reached the spot, 23 persons were there but she did not record the statement of those 23 persons. She had met the wife, mother and daughter of the accused in the house of the accused. She stated that at that time the construction work on the second and third floor was in progress.
Statement of Accused u/s 313 CrPC
8. After recording the prosecution evidence, the statement of accused u/s 313 CrPC was recorded. He denied all the incriminating FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 4/17 evidence against him. He stated that his wife used to run the business of committees. Prosecutrix was the member in four committees. She had come in his house but he told her that he did not have money and would arrange it from someone. He stated that no such incident took place. At that time, his mother and daughter were in the house. His daughter had opened the door. He had tied the dog in the rear room. He however admitted that the bed sheet was lifted from his room and his clothes were also seized by the police. He admitted that he was medically examined. He stated that he had to pay Rs.78,000/ to the prosecutrix which he has paid. He stated that due to financial constraints, he could not pay the money in time, they got annoyed and falsely implicated him in this case. Defence Evidence
9. In defence, the accused examined his daughter Ms Inderjeet Kaur as DW1. She stated that on 22.12.2015 between 1.00 p.m to 2.00 p.m, she was in the house with her father and grand mother. She was cooking food. The prosecutrix with Ramesh came in their house and enquired about her father. They met her father and discussed about the committees. Her mother used to run the committees. Some amount of the prosecutrix was due on her father which he offered to pay in installments. The prosecutrix then left the house with Ramesh. In the evening, police called her father in the police station where he was implicated in a false case. ARGUMENTS
10. I have heard the arguments advanced by Sh Pankaj Kumar Gupta, Ld counsel for the accused and Sh. Mohd. Iqrar, Ld Addl. PP for the State.
FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 5/17
11. Ld counsel for the accused vehemently argued that the accused and his wife used to run the committee business. The prosecutrix was the member in their committees. The accused had to pay some amount to the prosecutrix. Due to financial constraints, he could not pay the amount in respect of the committees. It made the prosecutrix annoyed and she falsely implicated the accused. Ld counsel stated that at the relevant time, the construction work in the house of the accused was in progress. Many labourers had been working. The call at 100 number was regarding the quarrel only. There were no allegations of the rape. Her MLC does not show any injury on her person. The FSL report does not incriminate the accused. Ld counsel stated that at the relevant time, the daughter and the mother of the accused were in the house which fact is proved by DW1 and the IO PW9.
12. Ld Addl. PP on the contrary argued that the prosecutrix had gone to the house of the accused to take payment of the committees. When she entered his house, he bolted the door from inside. He then committed rape upon her. He also did unnatural sex with her. He threatened her not to make noise lest he would tell her children about the incident. After coming downstairs, she called at 100 number. There was no delay in lodging the report. Her testimony is consistent with her complaint Ex. PW 1/A, history given to the doctor vide MLC Ex. PW 1/B and her statement recorded u/s 164 CrPC Ex. PW 1/C. Ld. Addl. PP stated that the prosecutrix did not resist the accused since the accused had threatened her. As regards the FSL report, Ld Addl. PP stated that semen was found on the salwar of the prosecutrix.
13. I have bestowed my thoughtful consideration on the FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 6/17 contentions raised on behalf of both the sides and gone through the statements of the witnesses and the documents on record.
14. The accused has been charged with the offence of rape and criminal intimidation. As such, before adverting to the merits of rival submissions, a reproduction of the definition of the offences would be necessary and relevant.
15. 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) .......; or
(c) ......; or
(d) ......, under the circumstances falling under any of the following seven descriptions:First against her will.
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 ..............".
16. Section 506 IPC provides that whoever commits the offence of criminal intimidation shall be punished.... Criminal intimidation as FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 7/17 defined u/s 503 IPC means that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
17. PW1/prosecutrix has deposed that she knows the accused since 2012. He used to run committees in which she was also the member. On 21.12.2015, she went to the house of the motherinlaw of the accused where he used to hold the committees. She asked him to give Rs.5,000/. He assured her to give it on the next day. On 22.12.2015, at bout 1.00 p.m, she went to his house to take Rs.5,000/. The accused bolted the door from inside, grabbed her forcibly and started misbehaving with her. He made her lie on the bed and removed her salwar forcibly. He tried to molest her. He then committed sexual intercourse with her forcibly. She could not resist or raise alarm because the accused got her threatened from the dog who was sitting at the gate. He also threatened her that if she would disclose the incident to anyone, he would tell her children. After coming from his house, she called the police at 100 number. She proved her statement Ex. PW 1/A and stated that police took her to her house where she cleaned her private parts, changed her clothes and handed over to the police. She also proved her MLC Ex. PW 1/D and stated that she had stated the brief history of incident to the doctor. She also proved her statement u/s 164 CrPC Ex. PW 1/C. She stated that she handed over a copy of her complaint dated 23.08.2015 against the accused, copy of signed cheque and three pages of diary containing the details of account of her committees vide memo Ex. PW 1/E. She stated that the FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 8/17 accused did not commit anal sex with her but had tried it. She identified her salwar Ex. P1 and underwear Ex. P2.
On being crossexamined, she stated that the accused used to run the committee business from his house. During the period from 2012 till filing of the case, she had taken Rs.22.5 lacs from him in 2/3 installments. She stated that the accused used to live with his mother and children in the house. She stated that the dispute between them arose two years before the complaint. After the dispute, she did not participate in any of the committees being run by the accused nor there was any transaction between her and the accused. She stated that the accused had agreed to sell DDA Flat bearing No. C20 to her but it was already mortgaged with some person at that time. She admitted that labourers were working on the roof of the house of the accused. She stated that on that day, she waited for the accused for three hours with Ramesh and thereafter Ramesh left. She stated that she did not receive any injury nor her clothes got torn. She remained in the room for about half an hour and when she came out, the labourers were coming and going. She stated that she did not tell the incident to her husband and uncle Ramesh. She denied that she concocted a false story against the accused to extort Rs. 7 lacs from him.
18. PW5/husband of the prosecutrix has deposed that the accused used to run committees. His wife was the member in those committees. The accused did not give full money against those committees. When his wife asked him to pay the money, he told her that he would give money after selling his house. They then asked him to sell his house to them. They also told him that they would pay the money through committees. He stated that when the accused did not pay them money, they got him pressurized from the local people and he gave them some money. He stated FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 9/17 that the accused neither gave them the house nor paid the full money against the committees. He stated that when he came from his village, his wife told him that she had gone to the house of the accused to take money where he committed rape upon her.
On being crossexamined, he stated that he used to work as a security guard. At that time, he was working as cleaner at Palam Airport and his salary was Rs.5,400/ per month. He has three children. His wife is the natural pathologist. They used to pay rent of Rs.18002200/ per month. He admitted that his wife did not inform him the incident when he was in the village. He denied that the accused has to pay them nothing and he was falsely implicated to extort money.
19. A bare perusal of the testimony of the prosecutrix/PW1 and her husband/PW5 would show that they knew the accused for about six years. His wife was into the business of committees. The prosecutrix was the member in the committees being run by them. The accused had to pay some amount to the prosecutrix against the committees. When the accused did not pay the amount in time, a quarrel took place and the prosecutrix called the police at 100 number. It is manifest from the record that the call vide DD Ex. PW 2/A was regarding the quarrel only.
20. In the complaint Ex. PW 1/A, PW1 had alleged that on 22.12.2015, the accused called her to collect money. Her uncle Ramesh knew about it. When she entered his house, he bolted the door from inside, pulled her and committed sexual intercourse and unnatural sex with her forcibly. She could not raise alarm since the accused threatened her that he would tell the incident to her children. In her medical examination vide MLC Ex. PW 1/B, no history of physical injury or assault was alleged nor FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 10/17 the doctor observed any physical injury/bruises on the person of the prosecutrix. In the statement u/s 164 CrPC Ex. PW 1/C, she gave different version and stated that on 23 times, the accused did not pay money against the committees and told her that he would give his house against the committees. Whenever she asked him to pay the money, he blackmailed her. He called her in his house to pay the money, bolted the door from inside, molested and raped her. In that statement, she did not allege that the accused threatened her that if she would disclose it to anyone, he would tell it to her children. In the complaint Ex. PW 1/A, there is no whisper of giving the house by the accused to the prosecutrix. In her testimony, PW1 has deposed that on 22.12.2015, at about 1.00 p.m, she went to the house of the accused to take Rs.5,000/. He took her inside, bolted the door from inside, grabbed her forcibly, made her lie on the bed, removed her salwar forcibly and outraged her modesty. He also committed sexual intercourse with her without her consent. She did not resist or raise alarm since he threatened her with his dog who was sitting at the gate. She has stated that at that time, construction work was going in the house. She had waited for the accused for about three hours with her uncle Ramesh. She stated that she did not receive any physical injury nor her clothes got torn and she remained in the room for half an hour. It is pertinent to mention that the prosecutrix in her complaint and her statement u/s 164 CrPC did not mention about the dog that the accused had threatened her with the dog. Question arises, whether the prosecutrix on that day had gone to take money against the committees or Rs.5,000/. In her complaint, she had alleged that the accused committed unnatural sex with her but in her testimony, she has stated that accused did not commit anal sex with her but FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 11/17 had tried it. It is also not understood how the accused used to blackmail the prosecutrix as appearing in her statement u/s 164 CrPC Ex. PW 1/C.
21. The defence of the accused is that at the time of alleged incident, his mother and daughter were in the house. His daughter had opened the door. He had tied the dog in the rear room. DW1, the daughter of the accused, has corroborated this fact and stated that between 1.00 p.m to 2.00 p.m, on 22.12.2015, she was present in the house with her father and grand mother. She was cooking food. The prosecutrix with Ramesh came in their house and enquired about her father. They met him and discussed about the committees. Her father offered her to pay the money in installments and they thereafter left the house. PW9/IO also corroborated this fact and stated that when she reached the spot, 23 persons were there. She had met the wife, mother and daughter of the accused in his house and at that time, the construction work on the second and third floor was in progress. The defence of the accused lends credence. 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.
22. It is pertinent to mention that the house of the accused is FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 12/17 situated in a crowded area but surprisingly the prosecutrix did not raise alarm nor told the incident to Ramesh who had gone with her to the house of the accused. Further, the prosecution did not examine Ramesh. No plausible explanation came why his presence was withheld in the witness box although he was the material witness in this case. PW1 has stated that after coming downstairs, she immediately informed the police. Her husband was in the village at that time and she did not inform him the incident. It is strange that the prosecutrix informed the police but did not inform her husband about the incident.
23. In the instant case, the exhibits of the accused and the prosecutrix were collected and sent to the FSL. The FSL report Ex. PW 9/F shows that the human semen was detected on the salwar of the prosecutrix but no DNA profile could be generated from the salwar. It cannot be said with certainty that the semen detected on the salwar of the prosecutrix was of the accused. Further, the prosecution did not examine the link witnesses to rule out the possibility of tampering with the case property.
24. In the instant case, the call was regarding the quarrel but PW2, who had gone to the spot on receipt of the call, has stated that they had made enquiry from the local people but no one told them about the quarrel.
CONCLUSION :
25. On an analysis of the evidence and material available on record, it appears that the dispute was mainly over the payment of money against the committees but it was given the colour of rape. There are material exaggerations and embellishments in the testimony of the FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 13/17 prosecutrix which go to the root of the case and create doubt on the veracity of the prosecution case. Her testimony cannot be said to be of sterling quality to base the conviction of the accused. The things do not appear to have happened in the manner as alleged by the prosecutrix. The medical and forensic evidence do not corroborate the testimony of the prosecutrix. The prosecution did not examine Ramesh though he had allegedly gone with the prosecutrix to the house of the accused. The defence of the accused appears to be more plausible. It is highly improbable that the prosecutrix remained quiet on the threat given by the accused that if she would raise alarm, he would tell it to her children. It is also strange that though she immediately informed the incident to the police but did not inform her husband who was in his native place.
26. It was held in the case of Dev Kumar Juneja Vs. The State (Delhi Administration) 1996 JCC 638 that law on the question of variance between different statements of a witness at different stages is that small variations or omissions will not justify a finding that the witness is a lier and his testimony be discarded. However, vital omissions, merit consideration and if on vital points it appears to the court that witness has tried to improve the case, such a witness will have to be discarded. The cases of Surajamal Vs. State, AIR 1979 SC 1408, Matadin and ors. Vs. State of UP, AIR 1979 SC 1234 and Namdeo Daulate etc. Vs. State of Maharashra, AIR 1977 SC 381 were also relied upon.
27. In the case of Ashok Narang Vs. State, 2012 (1) JCC, 482, it was held: "..If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 14/17 two inconsistent statements in their evidence either at one stage or both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses....the Supreme Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence".
28. 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 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".
29. 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 FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 15/17 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.
30. 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".
FIR No. : 1323/15 PS : Amar Colony State Vs. Devender Singh Page No. 16/17
31. In the light of above discussions and findings, 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 Devender Singh of the offences punishable under section 376 and 506 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.25,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal or revision.
32. File be consigned to the Record Room.
Announced in the open
court today i.e. 24.10.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 1323/15
PS : Amar Colony
State Vs. Devender Singh Page No. 17/17