Delhi District Court
State vs State Cri, Appeal No.8/2009 Decided On ... on 10 April, 2018
1
IN THE COURT OF MR. BHUPESH KUMAR,
ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK
COURT)01, WEST, TIS HAZARI COURTS, DELHI
S.C No: 80/15
FIR No : 285/15
PS: Ranjit Nagar
U/section: 376/384/328/506 IPC
State
Versus
Deepak
S/o Mr. Umesh Shah,
B445, Kath Putli Colony,
Near Shadipur Depot,
Delhi08.
Date of receipt of file after
committal : 10.08.2015
Date of judgment : 10.04.2018
JUDGMENT
1. Brief facts of the matter as emerged from chargesheet are that on 12.05.2015 the prosecutrix (name mentioned in the file but withheld to protect her identity) made complaint at PS Ranjeet Nagar wherein she has submitted to the effect that she reside with her family and her husband is running ladies tailor shop. Infront the shop of her husband, one woman namely Sheela used to sell clothes on Rehri. Her husband SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 2 treat Smt. Sheela as his sister. Accused Deepak is son of said Ms. Sheela and accused under the garb of said relation started visiting the house of the prosecutrix. Around two and half years ago, mother of the accused was sick and the prosecutrix went to house of accused to cook food. When she reached to the house of the accused, she found that accused was alone over there. Accused offered tea to the prosecutrix mixed with some intoxicating substance and after consuming the same, the prosecutrix lost her consciousness and during this period accused had established physical relations with her. When she regained her consciousness, she felt that something wrong has happened with her. After few days, the accused told her about his illegal act and also asked the prosecutrix to continue physical relations with him. In the meantime, accused by taking the advantage of prosecutrix and prepared obscene video clipping. Thereafter, the accused used to call the prosecutrix to his house and forcibly established the physical relations with her. The accused by threatening the prosecutrix to defame her has taken Rs.5,000/ from the prosecutrix twice. When the prosecutrix stopped to fulfill the demands of the accused, he showed the said video clipping to her two neighborers namely Arnav Kumar and Amit and as such he defamed her in her community. On the basis of complaint of complainant FIR No. 285/15 U/s: 376/384/328/506 IPC was registered against SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 3 the accused by name at PS Ranjeet Nagar.
Investigation of case was carried out. During investigation the prosecutrix was medically examined. The pointing out memo of place of incident was prepared at instance of prosecutrix. Statement of prosecutrix was got recorded u/s 164 Cr. P.C. Accused was arrested and he was also medically examined. The exhibits which were preserved during the medical examination of prosecutrix and accused were sent to FSL Rohini for examination. However, during the investigation no video clipping was recovered, hence, Mr. Arnav Kumar and Amit Kumar against whom the prosecutrix has leveled the allegations that they have circulated the video in community to defame the prosecutrix were not arrested. For them it was submitted that supplementary charge sheet would be filed in case any material is found against them.
The investigation was ultimately culminated into charge sheet u/s 376/384/328/506 IPC and 67A of IT Act which was presented in the court of Ld. MM against accused Deepak. After supplying copies of chargesheet to accused as per provisions of Section 207 Cr.P.C., the case was committed to Sessions Court for trial. It was assigned to my ld. Predecessor Court by ld. District & Sessions Judge.
2. After hearing arguments at point of Charge, on 24.09.2015 my ld. Predecessor Court found that prima facie charge u/s .
SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 4 328/376/384/506 IPC was made out against the accused. Separate formal charge was framed accordingly, to which accused pleaded not guilty and claimed trial.
3. Before proceeding ahead here it is necessary to mention that on 29.01.2016, ld. Counsel for accused on behalf of accused has admitted evidence of Ld. MM who recorded the statement of prosecutrix under Section 164 Cr.P.C., evidence of Ms. Sangeeta Verma, Counselor, Dr. Renuka who had medically examined the prosecutrix, Dr. Aakansha, Dr. Arif and Dr. Memas who had medically examined the accused and also admitted documents prepared and signed by these witnesses.
4. The prosecution has otherwise examined eleven witnesses in support of this case.
5. PW1 is prosecutrix. She deposed to the effect that her husband is running tailor shop and her husband treated the mother of accused as his sister. The accused used to treat her as his Mami (mother's brother's wife). About two and half years ago, accused called her to his house as his mother was not well. She went to the house of accused at about 11.00 11.30 am and when she reached at his house she found that parents of the accused were not in home. On inquiry, accused told her that his mother has gone to Clinic for medicines and SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 5 his father has gone for his job. Accused offered tea to her which were already prepared. She refused but on the insistence of the accused, she consumed the tea and started loosing her consciousness. When she regained her consciousness, she found that safety pin of the 'Palla' of her 'Saree' was removed and her clothes were not in a proper position. The saree was wrapped around her shoulders and not in the place where she usually tie the same. Her blouse, petticoat and her inner wear were in proper position. As her saree was not in order, she felt that she had been raped when she was unconscious. She found that accused Deepak was not in his house. She put her saree in order and came out of the house of accused. She met the mother of the accused outside of the house but did not talk to her and returned home. After two days, accused Deepak had telephoned her from his mobile on the mobile phone of her husband. Accused told her to come to his house which she refused, he told her that he had something which he would give to her husband. The house of the accused was on the way to her daughter's school and she had to gone to pick her daughter. Hence, she went to the house of accused. Inspite of her repeated asking, he did not tell anything about the thing he wanted to give to her husband. Mr. Sandeep, her nephew had seen her obscene video and told his mother about the same. The obscene video was regarding the physical relations between the accused and SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 6 herself. She never seen this video. Her obscene video was shown to Mr. Sandeep by his friend Mr. Dinesh. Accused gave her tea in his house and she had lost her consciousness, he had raped her and had forcibly established physical relationship with her. She came to know this fact in February, 2015. The accused had made forcibly physical relationship with her two times within one week of the incident when she had lost consciousness after consuming intoxicated tea in the house of the accused. Accused had threatened him that he had something with which he can harm her and had called her to his house and then raped her two more times. When she did not go again, accused forced her to give him Rs.10,000/. She had given him Rs.5,000/ first time on his birthday in the year 2013 or 2014 and second time Rs.5,000/ after his birthday. Accused has made her obscene video in public with the help of his friend namely Arun due to which she had defamed. After Shivratri in the year 2015, or on 17.02.2015 or 19.02.2015 she told everything to her husband. He called his mother and brother to the house. On 24.02.2015 she alongwith Ms. Basanti (sister in law/Nanad) and Ms. Sunita (Jethani/Cosister) went to police station Ranjeet Nagar. The case was registered after 25 days. She has shown the place of incident to the police and site plan was prepared which is Ex. PW1/C. She was counseled by the counselor. Her statement U/s 164 Cr.P.C.
SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 7 was recorded by Ld. MM which is Ex. PW1/E. The witness was crossexamined at length by Ld. Counsel for accused and the same shall be considered at the time of appreciation of evidence.
6. PW2 Sh. Israr Babu, Nodal Officer, Vodafone Mobile Services. He has brought on record the customer application form and Call Details Report (CDR) of mobile phone no. 9811858162 in the name of accused and same are Ex. PW2/A and Ex. PW2/B. He has also brought on record the Certificate U/s 65 B of Indian Evidence Act as Ex. PW2/C. He has further proved the Customer Application Form and call detail report of husband of the prosecutrix of mobile no. 844XXXXXX37 (The mobile number of the husband of prosecutrix has been withheld in order to conceal the identity of the prosecutrix and mobile number is mentioned in the evidence of this witness), the customer application form as Ex. PW2/D and computer generated call details report as Ex. PW2/E. Certificate U/s 65 B of Indian Evidence Act qua the CDR of brother in law of the prosecutrix as Ex. PW2/F. The relevant Cell ID chart of Vodafone for Delhi and NCR circle for the required period running into seven pages has brought on record as Ex. PW2/G.
7. PW3 Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd. He has SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 8 brought on record the call details of mobile no. 88023XXXXXX (The mobile number has been withheld in order to conceal the identity of the prosecutrix and mobile number is mentioned in the evidence of this witness) in the name of cosister of prosecutrix. He has proved the customer application form Ex. PW3/A, call details report of said number Ex. PW3/B and Certificate U/s 65 B of Indian Evidence Act qua the above CDRs Ex. PW3/C. The relevant Cell ID chart of Aircel for Delhi and NCR Circle for the required period as Ex. PW3/D. The witness has also brought on record the customer application form of cosister of prosecutrix as Ex. PW3/A and Ex. PW3/A1.
8. PW4 HC Shankar is the witness who had taken the accused Deepak to Lady Harding Hospital on 13.05.2015 for medical examination. The witness further deposed that thereafter accused was referred to Ram Manohar Lohia Hospital for the potency test and accordingly, he had taken the accused to RML hospital for the same. He has further submitted that after medical examination of accused, he has produced the MLC of the accused to the IO.
9. PW5 W/Ct. Usha has deposed that on the intervening night of 1213.05.2015 on the direction of the IO, she had taken to the prosecutrix to Lady Harding Hospital for her medical SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 9 examination. She further deposed that she produced the victim and MLC before the IO.
10. PW6 Inspector Raj Bala deposed that the investigation of the present case was assigned to her but investigation was already completed. However, after obtaining permission from the senior officers, she added section 67A of IT Act in the present matter and filed the charge sheet.
11. PW7 Sh. Sandeep Prajapat deposed that on 10.02.2015, while he was playing at Prajapati Park one person namely Arun came and asked him if he had seen any video. He stated that he did not see any video. After few days another person Dinesh met him. He asked him if he had seen any video. He stated that he had not seen any video. Thereafter, Dinesh had shown him one video containing the video clipping of his "Bhua"/prosecutrix and accused Deepak. Thereafter, he went to his house and had told about the said video clipping to his Bhabhi and grandmother.
12. PW8 Ct. Sunil deposed that on 13.05.2015 he had joined the investigation of the present case with IO ASI Meena. The accused was arrested by the IO in his presence vide arrest memo Ex. PW8/A. The accused was personally searched vide memo Ex.PW8/B. The witness has further SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 10 deposed that IO has also recorded the disclosure statement of the accused vide Ex. PW8/C.
13. PW9 HC Ravinder proved the copy of FIR as Ex.PW9/A, endorsement on the Tehrir as Ex. PW9/B and certificate U/s 65 B of Indian Evidence Act as Ex. PW9/C and DD No. 30 as Ex. PW9/D.
14. PW10 Sh. Rajeev Ranjan, Nodal Officer, (Tata Tele Services Limited) has brought on record the original Customer Application Form (CAF) of mobile number 9210214129 in the name of Deepak Ex. PW10/A and photocopy of Aadhar Card No. 859793141120 in the name of Deepak Ex. PW10/B and certificate U/s 65 B of Indian Evidene Act qua the CDRs Ex. PW10/D, Ex. PW10/E and Ex. PW10/F.
15. PW11 W/ASI Meena is the IO of the matter. She has deposed qua the entire facts in respect to investigation carried out by her and proved all the documents prepared by her during investigation. She was crossexamined at length. However, the same shall be considered at the time of appreciation of evidence. PE was closed.
16. Statement of accused was recorded under Section 313 SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 11 Cr.P.C. wherein he has denied all the incriminating evidence came on record against him and further submitted that he has been falsely implicated in this case. Accused further submitted that he wants to lead evidence in his defence but no defence witness was examined. Hence, DE was closed.
17. I have heard arguments of Sh.Subhash Chauhan, Ld. APP for state and Sh. Shivam Chaudhary, Ld. Counsel for accused besides going through the material on record carefully.
18. Ld. APP for State has submitted that the prosecutrix and accused were known to each other as the husband of prosecutrix used to treat mother of accused as his sister, meaning by the accused is Bhanja (Nephew) and they reside nearby. About two and half years prior to lodging of FIR, accused called prosecutrix to his house for preparing food on the pretext that his mother was not well. When the prosecutrix went there, the accused offered her tea mixed with some intoxicated substance as result of which prosecutrix lost her consicousness and she was raped by the accused. The accused has threatened the prosecutrix that he has prepared the video clipping of incident and thereafter started pressurizing the prosecutrix to continue establishing physical relations with her. Thereafter, the accused has SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 12 repeatedly raped the prosecutrix. When the prosecutrix came to know that the accused has circulated the video clipping, then prosecutrix has made complaint Ex.PW1/A. The prosecutrix has made similar statement recorded u/s 164 Cr.P.C. Ex. PW1/E. It is further submitted that there are specific allegations of forcible physical relations against the accused. The fact that physical relations existed also have been admitted during the crossexamination of PW1/ prosecutrix. On the basis of these submissions it has been submitted that prosecution has proved its case against the accused beyond reasonable doubt.
19. On the other hand, Ld. counsel for accused has submitted that the case of prosecution suffers from material infirmities and contradictions. It has been further contended that there was long standing consensual physical relationship between the accused and prosecutrix which stands proved from the CDRs (call detailed record) of conversation between both of them. It has been further submitted that even the transcription of conversation between accused and prosecutrix Ex.PW1/DD also proves the same. By pointing out on the transcription of conversation, it is further submitted that the manner in which the prosecutrix has talked to accused itself shows that they were having intimacy with each other and there is nothing in said transcription which shows SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 13 that the prosecutrix was under any threat or force. It has been further submitted that during cross examination of PW1 / prosecutrix three photographs Ex. PW1/DA to DC were brought on record. The prosecutrix has admitted the said photographs. Photographs shows that both were consenting parties which falsify the claim of the prosecutrix that accused had forcibly physical relations with her which makes the case of the prosecution doubtful. Reliance in this respect has been made in case Avadh Bihari vs State Cri, Appeal no.8/2009 decided on 19.4.2010 by Hon'ble Delhi High Court.
It has been further submitted that main claim of the prosecution is that the accused has blackmailed the prosecutrix under threat to circulate the video clipping. It has been further submitted that in the FIR, the prosecutrix has named two persons namely Arun Kumar and Amit and stated that both these persons have viral the video in their Biradari (community). But no such video clipping has been recovered in this matter. In this respect, it is submitted that PW7 Sandeep Prajapat, son of brother of prosecutrix has claimed that on 10.2.2015, one Arun has shown him one video containing video clipping of prosecutrix and accused qua which he has told this fact to his grandmother. But no such video clipping has been recovered by the IO. Further IO PW11 ASI Meena in the crossexamination has submitted that SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 14 she has not watched any video clipping herself and has not recovered it during investigation. On this score it has been vehemently submitted, in case the video has been circulated/viral, then why it has not been recovered which itself shows that no such video clipping was in existence. It has been further submitted that rukka Ex. PW9/B is itself defective because against the date and time of incident column, 'not known' has been mentioned. It is further contented that as per complaint Ex. PW1/A, the alleged video clipping was not prepared on the day of first incident but was prepared thereafter. On this aspect it is further contended that as per complaint Ex PW1/A, after the alleged first incident, no video clipping was prepared , therefore, the question arises why the prosecutrix has not made complaint to anybody about the incident. There is no explanation in this respect nor there is any material that the prosecutrix was under any threat which stopped her from disclosing the fact to anybody. On the basis of these submission prayer has been made to acquit the accused by giving benefit of doubt.
20. I have heard the arguments of Ld. APP for State and Ld. counsel for accused besides going through the material on record carefully.
As per version of prosecution when the accused administered tea to the prosecutrix mixed with some intoxicated substance, SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 15 she became unconscious and when she regained her consciousness, she found that her clothes were not in order and felt that she has been raped by the accused. Thereafter, accused told her that he has prepared her video clipping of the incident and sought sexual favors from her by threatening to circulate the video on society and under threat he has committed rape upon prosecutrix time and again thereafter. Here the court is required to see if the prosecution has succeeded to complete chain of events in this respect to bring home the guilt of accused beyond reasonable doubt for which he has been chargesheeted. Before appreciating the evidence of prosecutrix/PW1, here it is necessary to mention that as per record at the time of alleged incident, the prosecutrix was aged about 32 years, married and mother of four children aged between 5 to 13 years. Meaning by she was enough matured to understand sexual acts and its consequences etc.
21. Before proceeding ahead here it is necessary to reproduced the relevant portion of examinationinchief and crossexamination of PW1/ prosecutrix. The relevant portion of examinationinchief of this witness is as under : When I regained consciousness, I found that the safety pin of the Palla of my Saree was removed and my clothes were not in proper position. ........ As my Saree was not in order, I felt that I had been raped when I was unconscious. Accused Deepak was not in SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 16 his house when I regained counsciounsess. I put my Saree in order and came out of his house. I met the mother of accused outside the house but I did not talk to her and returned home. After two days, accused Deepak telephoned me from his mobile phone on the mobile phone of my husband. ......... He told me to come to his house which I refused and then he told me that he had something which he will give to my husband. As the house of accused falls on the way to my daughter's school and I had to go to her school to pick her up, I went to house of accused. Inspite of my repeated asking him about the thing he wanted to give to my husband, he did not tell me about the same. I do not know who had prepared the video.
The relevant portion of crossexamination this witness is as under : It is correct that I used to call accused on the abovesaid mobile phone number. It is correct that I used to call accused from the mobile of Ms.Sunita as she was illiterate and did not know how to operate the mobile. ...... in the call details the mobile number of Hira Lal is also mentioned and I used to call from my husband's mobile number to talk to accused. It is correct that I used to talk with accused of and on after the alleged incident. ....... Two photographs in which I am visible with the accused are Ex. PW1/DA and Ex. PW1/DB and I am visible at point A. ....... The third photograph in which I am visible is Ex. PW1/DC ....... These three photographs are taken after the alleged incident that took place three years back. ......... I used to visit daily at house of my parents during the period 201314, but I did not visit the house of my parents SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 17 in the year 2015 as my parents came to know about the alleged incident. ....... After hearing the CD, I say that the lady speaking in the same is me.......... I admit the conversation between myself and accused as elaborated in the transcript now Ex. PW1/DD. When the accused had physical relations with me for the first time and subsequently, I never shouted for help nor raised any alarm nor complained about the same to anybody. I have not made any complaint against the accused to police, court or any other authority prior to registration of this case. I never complained to anyone after coming out of the house of the accused whenever he had physical relations with me. It is correct that I used to go to the house of accused with my free consent.
From the close scrutiny of evidence of PW1/Prosecutrix, it is found that when the prosecutrix regained consciousness, the accused was not present in the house and after putting her clothes in order, the prosecutrix left the house of accused. When she came out from the house of accused, mother of accused met her but she had not told anything to her and returned to her house. After two days, she received phone call from the accused who insisted her to meet her again as he wanted to show something to her which he wanted to give the same to her husband.
In the entire story narrated by the prosecutrix of the day of incident and of two days thereafter, the element of threat in any manner by the accused and preparation of video clipping of the incident by the accused is absolutely missing.
SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 18 Now the question arises that when the prosecutrix was not under any threat then why she has not dislcosed the incident at first instance to the mother of the accused who met her outside house of accused. Here for the sake of arguments, if it is presumed that due to shock or trauma of the incident the prosecutrix has not disclosed anything to mother of accused then the question remained that why she further kept mum for two days and has not told the incident to her husband or other family members when she was again called by the accused.
Further, PW1 has nowhere stated any other reason for not disclosing the fact to anybody to save her image and reputation of her family.
This discussion leads to the conclusion that conduct of the prosecutrix immediately after the incident does not inspire the confidence of the court to rely upon the version of the prosecutrix in this respect.
22. Further as per prosecutrix, after two days the accused has again called her to his house to show something to her which he wanted to give it to her husband and accordingly, she went to house of accused but despite her insistence, the accused has not shown any such thing to her. During the deposition of PW1 in this respect, one fact remained on record that she was not threatened by the accused nor the SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 19 accused has shown any obscene video to her which caused fear in her mind and prevented her from disclosing the incident to anybody.
The record further reflects that prosecutrix has not disclosed the date, month and year of first incident. She has not even deposed the dates of subsequent incident or the last incident. Hence, the evidence of prosecutrix in this respect is found to be vague and doubtful.
23. The prosecutrix further in unmistakable terms has admitted that she used to talk to accused on phone. The CDRs in this respect are on record as Ex. PW2/B, PW2/E, PW3/B which reflects that both parties used to make phone calls to each other on regular intervals for quite long time. This again casts suspicion in the mind of the court that when the Prosecutrix was not under any threat then what compelled her to talk to the accused so frequently and for long period. The recorded conversation brought on record during cross examination of PW1, between her and accused in the form of transcription Ex. PW1/DD has been admitted in unmistakable terms by PW1/prosecutrix. In the said conversation the Prosecutrix has, inter alia, used the word 'I love you' twice for accused, criticized her husband by stating that she does not like him and while talking to accused on phone, the language used by the prosecutrix can be easily termed as vulgar.
SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 20 In case Hari Chand vs State, CRL.A. 860/2103 & CRL.M.B. 7634/2015 decided on 10.11.2016, Hon'ble High Court of Delhi while discussing the various judgements of Hon'ble Supreme Court, has, inter alia, held as under :
Settle legal position is that conviction can be based upon the sole testimony of the prosecutrix provided it is reliable and is of sterling quality. A court can return a finding of guilt for offence punishable under Section 376 IPC only if the prosecutions is able to first prove beyond reasonable doubt that the accused committed the offence where after the next step is of ascertaining the consent in case the prosecutrix is major. In 'Sadashiv Ramrao Hadbe Vs. State of Maharashtra & Anr.' 2006 (10) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony when the entire case is improbable and unlikely to have happened. This is what has been stated:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surroundings circumstances are highly improbable and belie the case set; up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 21 improbable and unlikely to happen."
In 'Abbas Ahmed Choudhary Vs. State of Assam', (2010) 12 SCC 115, observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court held:
"Though the statement of prsoecutrix must be given prime consideration, at the same time broad principle that the prosecution has to prove its case beyond reasonable doubt applied equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW1."
Hon'ble Supreme Court in the decision reported as (2012) 7 SCC 171 'Narender Kumar Vs. State (NGT of Delhi)' held:
The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions insignificant discrepancies in the evidence of the witness which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts."
24. In view of the findings of the judgment, in order to hold the accused guilty for offence of rape, the evidence of SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 22 prosecutrix should be clear and trustworthy etc. and it is the duty of prosecution to prove its case beyond reasonable doubt. Reverting to the present matter, as discussed above the evidence of the prosecutrix in respect to the commission of crime of rape, advancing of threat by accused is not clear. Further, the conduct of prosecutrix as depict from the call detailed report (CDR), photographs and transcription of conversation etc. also makes the evidence of prosecutrix doubtful. The findings of the judgment in case Hari Chand vs State (Supra) and judgments of Hon'ble Supreme Court mentioned in said judgment are squarely applicable to the finding of the present case.
25. Further it is apparent that the incident took place around 2 ½ years prior to registration of FIR. As per case of prosecution, the prosecutrix did not disclose the incident of rape to anybody because she was under apprehension that she may be defamed in case the accused brought this fact to the notice of her family members and society. She had made the complaint only when she came to know that the accused has circulated the video in the society. But as matter of record, no such video has been recovered or seized by the IO. On calling explanation IO deposed that she has not seized any CD, pendrive or mobile phone etc. containing any such video. The IO further deposed that she has never seen such video.
SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 23 Even the prosecutrix has also stated that she has seen any video. Under these circumstances the story of the prosecutrix that she has made the complaint only after she came to know that her video has been circulated appears to be doubtful.
Reverting to the fact of delay, it is found that as per PW7 Sandeep Prajapat, he was shown video on 10.2.2015 whereas the present FIR was lodged on 12.05.2015. There is again substantial delay of around three months in the registration of FIR and the prosecution has failed to explain / justify the delay. Since no video came on record, hence, no reliance can be made on the evidence of PW7 Sandeep Prajapat. It appears that PW7 has been examined by the prosecution to show that since the accused has circulated the video, therefore, the prosecutrix made complaint. It further appears that by examining PW7, the prosecution has tried to explain the delay in registration of FIR.
In case Ram Dass & ors. Vs State of Maharashtra, 2007 (2) SCC 170, Hon'ble Supreme Court has, inter alia, held as under : "Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."
Reverting to the present matter, as discussed above it is SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018 24 found that the prosecution has failed to explain/justify the delay in FIR which is fatal to the case of prosecution.
26. In the light of above discussion, it is found that prosecution has failed to prove its case against accused beyond reasonable doubts. Hence, by giving benefit of doubt, the accused stands acquitted for offence under Section 376/384/328/506 of IPC.
376/384/328/506 In view of provision of Section 437 A Cr.P.C, bail bond and surety bond of accused person already furnished are extended for further six months.
27. File be consigned to record room.
Announced in the open Court on (BHUPESH KUMAR) this 10th April, 2018 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
SC No. 80/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/10.04.2018