Delhi District Court
State vs . Anil Kumar, on 25 September, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.30/13.
Unique Case ID No.02405R0240532012.
State Vs. Anil Kumar,
S/o Late Sh. Chiranji Lal,
R/o D-112, Bhagwati Vihar,
Uttam Nagar,
New Delhi.
Date of Institution : 16.10.2012.
FIR No.240 dated 31.7.2012.
U/s. 376 IPC.
P.S. Bindapur.
Date of reserving judgment/Order : 17.9.2013.
Date of pronouncement : 25.9.2013.
JUDGMENT
1. The above named accused has been arraigned in this case on the allegation of having kidnapped and raped a minor girl aged 16 years.
2. The prosecution case, in brief, is that the information was received in the police station on 30.7.2012 from police control room to the effect that two boys have raped a girl in Bhagwati Vihar near Haryana Dairy, behind Bindapur police station and one of them has been apprehended. The information was recorded as DD No.49A and was entrusted to SI Omvir for suitable action. Later on, since it was a case of rape, ASI Kusum was directed to take SC No.30/13. Page 1 of 14 over the inquiry. ASI Omvir Singh reached the police station and produced the prosecutrix namely 'Y' (real name withheld in order to conceal her identity) and a boy named Anil before ASI Kusum Lata stating that the prosecutrix has been sexually assaulted. Thereupon ASI Kusum Lata removed the prosecutrix to DDU Hospital and got her medically examined. After return to the police station from the hospital, she recorded the statement of the prosecutrix wherein she stated that she is studying in Xth class in Sarvodya Vidhalaya, Uttam Nagar, and she has been introduced to accused Anil by her friend Pooja about 3 or 4 days ago. She further stated that on 27.7.2012 after the school hours, accused Anil enticed away her and took her to a house in Bhagwati Vihar, Manas Kunj, at a cycle rickshaw. Nobody was present in the house at that time. After entering into the house, the accused closed the door and laid her in a bed. She told her that she would raise alarm but still the accused took off her Pajami and underwear forcibly. She resisted but despite her resistance accused laid upon her and inserted his male organ into her female organ. It pained her a lot and she started crying but nobody heard her cries. She somehow got out of there and reached home. She apprised her mother about the incident on the next day. Her mother brought her to the police station on 30.7.2012.
3. On the basis of the aforesaid statement of the prosecutrix, FIR was got registered. ASI Kusumlata prepared site plan of the spot of incident at the instance of the prosecutrix. She seized the bedsheet which was spread on the bed, on which the offence has been committed. She recorded the statement of the witnesses and also arrested accused Anil. Accused was got SC No.30/13. Page 2 of 14 medically examined from DDU Hospital and the samples given by the doctor were seized. Statement of the prosecutrix u/s.164 Cr.PC was recorded on 31.7.2012. The IO took into possession the documents regarding the age of the prosecutrix from her school which reveals her date of birth to be 21.4.1995. The exhibits were sent to FSL for forensic examination.
4. After completion of the investigation, Charge Sheet was prepared and submitted to the concerned court.
5. After committal of the case to the court of Sessions, Charges u/s.376 IPC and u/s.3 of Protection of Children from Sexual Offences Act, 2012 were framed against the accused. Accused pleased not guilty and hence trial was held.
6. The prosecution has examined 17 witnesses to prove the charges against the accused. Accused was examined u/s.313 Cr.PC on 02.8.2013 wherein he denied all the incriminating facts and circumstances put to him and claimed false implication. He even denied knowing the prosecutrix.
7. The accused has examined one Sh. Dinesh Kumar as DW1 in his defence who has deposed that the accused was doing the job of whitewashing with him in July, 2012 and they worked together in a four storey building in Rajapuri for about 20 - 25 days including 27.7.2012, 28.7.2012, 29.7.2012 and 30.7.2012.
8. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
SC No.30/13. Page 3 of 149. Ld. APP submitted that it is evident from the testimony of the prosecutrix that she was allured by the accused to accompany him to a house at Manas Kunj Bhagwati Vihar, where he raped her. She further submitted that there is no inconsistency between the statement of the prosecutrix recorded during the course of investigation and her testimony before this court and therefore she is a trustworthy witness. According to her, the deposition of the prosecutrix finds corroboration from the testimony of her mother (PW3) and her maternal uncle (PW4). She submitted that the prosecution has succeeded in establishing the guilt of the accused and therefore, the accused is liable to be convicted.
10. On the contrary, Ld. Counsel for the accused submitted that it is manifest from the testimony of the prosecutrix that she was not under any pressure or threat to accompany the accused and she accompanied the accused voluntarily, without any allurement. He further submitted that the prosecutrix knew that she is accompanying the accused to have sexual intercourse with him as otherwise, there was no reason for her to accompany the accused to a house which was quite far away from her residence and wherein nobody was present. The Ld. Counsel has further argued that there is a delay of four days in reporting the matter to the police which has not been satisfactorily explained by the prosecution and therefore the prosecution case comes within the sphere of doubt. He submitted that the incident had taken place on 27.7.2012 and as per the testimony of the prosecution, she apprised her mother about the incident on the same evening SC No.30/13. Page 4 of 14 but still the parents of the prosecutrix neither made any call at telephone no.100 nor reported the matter to the local police station. According to him, the parents took their time to fabricate a false story against the accused, apprehended him by force and then took him to the police station and levelled rape charges upon him. He submitted that the evidence led by the prosecution is totally unconvincing and untrustworthy and therefore the accused is liable to be acquitted.
11. At the outset, I may note that I wounder how the charge u/s.3 of Protection of Children from Sexual Offences Act, 2012 has been framed against the accused. The incident involved in the present case is dated 27.7.2012. On that day, the aforesaid act was not in operation as it has come into force on 14.11.2012. It seems that the aforesaid charge has been framed against the accused due to some inadvertence and therefore the same does not merit any consideration at all.
12. The prosecutrix has been examined as PW1. She is a student of XIth standard in Sarvodaya Kanya Vidhalaya, Uttam Nagar, New Delhi, and has disclosed her date of birth as 21.4.1995. Her school hours are from 7 a.m. to 12.30 p.m. and she usually reached back home at about 1 p.m. She has further deposed that on 27.7.2012 she left the school as usual at 12.30 p.m. and was proceeding towards her house on foot. Soon accused Anil Kumar met her and asked her if she is accompanying him. She replied in negative and told him that she is getting late for her home. Accused became angry and forcibly made her to sit on cycle rickshaw and took her to Bhagwati Vihar through Manas SC No.30/13. Page 5 of 14 Kunj road. On reaching there, they got down from the rickshaw and proceeded further on foot. The accused was walking in front of her and he directed her to follow him. She was following the accused on foot. They reached at a house. Accused opened the gate of the house and got inside. There was nobody present in the house. Accused took her inside the room in a house and took off her shoes. He laid her on a wooden bed in the room, took off all her clothes, kissed her and pressed her breast. Accused pulled down the zip of his pant and tried to insert his male organ into his female organ (vagina). It pained her a lot and she cried in pain. He had inserted his male organ into her vagina only a little bit and she did not permit him to do so completely as she was feeling intense pain. Thereafter she put on her clothes and requested him to take her home as she was was a stranger in that place and did not know how to reach home. They went out of the home and the accused made her to sit on a rickshaw, paid the charges to the rickshaw puller and told him to drop her at her home. When she reached home, her parents were present there but she did not tell them about the incident out of fear. In the evening, when her mother asked her as to what happened, she mustered courage and narrated the incident to her. She further deposed that her mother called her friend Pooja, who had introduced her to the accused. Pooja came to their house and her mother enquired from her the whereabouts of the accused. They went out in search of the accused. Meanwhile Pooja contacted her friend Jitender who knew the address of the accused. Jitender told them the address of the accused and accordingly her parents as well as her maternal uncle went to his residence. Her parents had called the police to the residence of the accused. She was then called to the police SC No.30/13. Page 6 of 14 station and her maternal grandfather accompanied her. All the said happened on 30.7.2012. Her statement was recorded in the police station which she proved as Ex.PW1/A. She was got medically examined at DDU Hospital and her statement u/s.164 Cr.PC Ex.PW1/B was recorded.
13. In answer to a few leading questions put to her by the Ld. APP with the permission of the court, she stated that she did not point out that house to the police officials, in which she has been sexually assaulted by the accused and the police officials did not seize any article in her presence. She, however, identified her signature at point A on the seizure memo dated 31.7.2012 but stated that she had signed the same perhaps in the police station. In the cross examination conducted on behalf of the accused, she admitted that there is a crowded market in front of her school and there is a police chowki at a short distance from her school She further stated that her friend Pooja had introduced her to the accused about 5 - 7 days before the incident. Pooja was her classmate. She had met the accused twice before the date of incident on her way home after school hours. It took them half an hour to reach Bhagwati Vihar on cycle rickshaw. She requested the accused to let her go but the accused told her that it will take him hardly two minutes to have a talk with her and thereafter he would drop her at her home. When she was following the accused on foot in Bhagwati Vihar, she did not attempt to run away as she did not know that area and how to reach her home. She had returned home on that day at about 2 p.m. She narrated the incident to her mother at about 7 p.m. Her mother had gone to the house of Pooja on the next day but she did not accompany her.
SC No.30/13. Page 7 of 1414. Smt. Anita, the mother of the prosecutrix, has been examined as PW3. According to her, the prosecutrix left for school as usual at 7 a.m. on 27.7.2012 but did not return at the fixed time i.e. 1.15 p.m. She waited till 1.30 p.m. and when the prosecutrix did not come home by that time, she alongwith her own father went to her school and found that all the teachers of the school had already left. Ultimately, the prosecutrix reached home at about 2.30 p.m. When she asked her why she was so late, the prosecutrix first did not say anything and then told her that she had gone to the house of one of her friends and while saying this, she started weeping. Prosecutrix even did not take meals. She kept on insisting as to what the matter was and the prosecutrix did not state anything except that she does not want to live and wants to die. The prosecutrix continued to be in a depressed state and used to weep occasionally but did not tell anything about her such unusual conduct. Ultimately, on 30.7.2012 the prosecutrix had told her that accused Anil had taken her to his home and committed forcible sexual intercourse with her. She called her brother Manoj and apprised him about the incident as her husband was bed ridden having suffered serious injuries in a road accident. She alongwith Manoj went to the house of Pooja and made enquiries from her. On the same day, she alongwith her father and daughter 'Y' went to the police station where statement of 'Y' was recorded in her presence. There is nothing worth mentioning in her cross examination.
15. According to PW4 namely Manoj, the maternal uncle of the prosecutrix, he received a telephonic call from his sister Anita SC No.30/13. Page 8 of 14 on 30.7.2012 saying that a boy named Anil had taken away 'Y' and committed sexual intercourse with her forcibly. He immediately reached the house of Anita and from there they went to the house of Pooja. Pooja's mother took them to the house of accused Anil at about 8 p.m. Anil was present in the house at that time alongwith 7 - 8 persons. Before they could talk to him, accused started manhandling them. He made a call at telephone no.100 from the house of Anil. PCR Van reached there and took them to the police station. He made a call to his father and his father reached the police station alongwith 'Y' and thereafter police recorded statement of 'Y'.
16. Before scrutinizing the deposition of above noted star witnesses of the prosecution, I may note that in cases involving offence of rape, the testimony of the prosecutrix is vital and material piece of evidence. Her statement, if found to be worthy of credence and reliable, requires no corroboration and the court may convict the accused on the basis of her sole testimony. In such cases, the evidence of the victim i.e. the prosecutrix should be of sterling quality as the fate of the case depends upon the quality and face value of the testimony. It also needs to be mentioned here that the Supreme Court in Udai Vs. State of Karnataka AIR 2003 SC 1369, has held that even in cases of rape, the onus is always on the prosecution to prove affirmatively all the ingredients of the offence which it seeks to establish and such onus never shifts. It is not the duty of the defence to explain as to why and how the victim and the other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and it cannot take the support from the weakness of the SC No.30/13. Page 9 of 14 case of defence. However, great the suspicion against the accused and however strong the moral belief and the conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legally admissible evidence and the material on record,the conviction cannot be ordered. There is initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
17. In the instant case, it is evident from the testimony of the prosecutrix that the accused neither offered any allurement to her nor issued any threat to her before she accompanied him on the cycle rickshaw. The prosecutrix though has stated that the accused made her to sit on the cycle rickshaw forcibly. She has not explained what kind of force had he used. They travelled on cycle rickshaw for about half an hour. Prosecutrix has stated in her cross examination that she requested the accused to let her go but accused told her that it will take him hardly two minutes to have a talk with her and thereafter, he would drop her home. There is no evidence on record that the prosecutrix told him that he could have talked to her near her school or anywhere around that place and there was no reason for travelling all the way to Bhagwati Vihar a two minute talk. It has come in the testimony of the prosecutrix that on reaching Bhagwati Vihar, they got down from rickshaw and proceeded to the house in question, where she was later on raped, on foot. The accused was walking in front of her and she was following him. At that stage also, there was neither any enticement, threat or pressure on the part of the SC No.30/13. Page 10 of 14 accused to her to follow him. She did not try to raise alarm or run away. She appears to have followed the accused into the house in Bhagwati Vihar voluntarily and engaged into sexual intercourse with him willingly.
18. The overall conduct of the prosecutrix during all this, as is revealed from her testimony shows that she had accompanied the accused voluntarily without any allurement or threat and probably to have a sexual encounter with him. It also appears that the sexual act between the two was with her consent and without any pressure or threat from the side of the accused. This is manifest from the deposition of the prosecutrix where she says that she did not allow the accused to complete the act as she felt intense pain and not because she was not agreeable to it. Had it been the case of rape and had it been the intention of the accused to rape the prosecutrix, he would not have stopped after first penetration when she felt pain, he would have continued to act till ejaculation as, apparently, there was not resistance from the side of the prosecutrix.
19. The testimony of the prosecutrix, besides being untrustworthy and not inspiring any confidence, also does not finds any corroboration from the other evidence on record including the medical evidence as well as forensic evidence. To the contrary, there is material contradiction between her testimony and that of her mother. Prosecutrix has deposed that she apprised her mother about the incident in the evening on the date of incident i.e. 27.7.2012. The mother of the prosecutrix appearing as PW3 has deposed that the prosecutrix narrated the incident to her SC No.30/13. Page 11 of 14 on 30.7.2012. The prosecutrix has not mentioned in her testimony that she remained depressed for about 3 - 4 days after the date of incident, did not take her meals and used to tell her parents that she wants to die, as deposed by her mother (PW3). In view of these material contradictions also , I feel that the prosecution case lacks in credibility and in trustworthiness.
20. The deposition of the prosecutrix clearly demonstrates that she narrated the incident to her mother on the date of incident itself i.e. 27.2.2012. Her mother has shown very unusal conduct. She neither made a call on telephone no.100 nor lodged a complaint in the police station. Infact, she did not act for complete four days i.e. till 30.2.2012 when she awoke from slumber suddenly and informed her brother (PW4). I find no explanation on record for delay of four days in reporting the matter to police.
21. PW4 too, instead of lodging complaint in the police station, proceeded to search for the accused. The conduct of PW3 and PW4 gives the impression that a false story has carefully been fabricated against the accused, as argued by the Ld. Counsel for the accused. The conduct of both PW3 and PW4 is unnatural, unusual and doubtful. With such quality of evidence on record, it is difficult to believe the case of the prosecution.
22. The investigating officer also seems to have played into hands of the mother of the prosecutrix and did not investigate the case fairly. The prosecutrix in her FIR statement Ex.PW1/A has nowhere mentioned the particulars of the house at Bhagwati Vihar SC No.30/13. Page 12 of 14 where she was sexually assaulted by the accused. The IO appearing as PW16 has deposed that prosecutrix took her to that house and she prepared its site plan Ex.PW16/B at her instance. However, the prosecutrix has specifically deposed that she did not show that house to the police. It is therefore a mystery as to how the IO reached House No.D-113, Bhagwati Vihar. Moreover, this house belongs to PW5 who has deposed that he had let out the same to one Jitender. No investigation has been carried on regarding said Jitender, who he is; what is his relation with the accused and whether or not he had made this house available to the accused. Therefore, it is to be said that the investigation has been conducted in a very shoddy manner with a particular end in the mind. It is very apalling and regretful to note that investigating officers do not attach required seriousness and sensitiveness to the investigation in heinous offences of rape and conduct the investigation in very shoddy & light hearted manner thereby not reaching it to the truth and leaving many questions unanswered.
23. As per the evidence led by the prosecution itself, in the form of school record of the prosecutrix, proved by PW9, her date of birth is 21.4.1995 which means that she was 17½ years of age on the date of incident. Her date of birth certificate issued by MCD is Ex.PW9/C. As per section 376 of Indian Penal Code as it stood before the amendment of 2013, a girl above the age of 16 years was capable of consenting to sexual intercourse. Therefore, the sexual act between the prosecutrix and the accused, if at all there was any, does not amount to rape, as it was with the consent of the prosecutrix, she being above 16 years of age.
SC No.30/13. Page 13 of 1424. The result of the above discussion is that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. Thus the accused is liable to be acquitted and is acquitted hereby.
Announced in open (VIRENDER BHAT)
Court on 25.9.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.30/13. Page 14 of 14