State vs Anil Kumar Shukla. -:: Page 1 Of 61 ::- on 8 February, 2016

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Delhi District Court

State vs Anil Kumar Shukla. -:: Page 1 Of 61 ::- on 8 February, 2016

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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number : 70 of 2013.
Unique Case ID Number : 02401R0167562012.

State
Versus
Mr.Anil Kumar Shukla,
Son of Mr. Adhya Prasad Shukla,
Resident of F71, Sec.3, Papan Kalan,
Dwarka, Delhi.

First Information Report Number : 22/2012
Police Station Moti Nagar
Under sections 376, 328, 506 of the Indian Penal Code.

Date of filing of the charge sheet before : 12.04.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 03.05.2012.
in the Sessions Court
Date of transfer of the file to this Court : 29.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 08.02.2016.
Date of judgment : 08.02.2016.

Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. Manoj Lohat.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
***********************************************************

Sessions Case Number : 70 of 2013.
Unique Case ID Number : 02401R0167562012.
FIR No. 22/2012, Police Station Moti Nagar,
Under sections 376/328/506 of the Indian Penal Code.
State vs Anil Kumar Shukla. -:: Page 1 of 61 ::-
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JUDGMENT

"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.

1. Rape is a dark reality in Indian society like in any other nation.

This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly act.

PROSECUTION CASE

2. Mr. Anil Kumar Shukla, the accused, has been charge sheeted by Police Station Moti Nagar, Delhi for the offences under sections 376, 328 and 506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on the intervening night of 25/26.01.2012 at about 12.45 am, he committed the house trespass by entering the house of prosecutrix (name mentioned in the file Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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but withheld to protect her identity) at Delhi (address mentioned in file but withheld to protect the identity of the prosecutrix) within the jurisdiction of Police Station Moti Nagar with the intention to commit an offence of rape; on the above said date, time and place, the accused made the prosecutrix inhale certain stupefying material/chemical with the intention to commit the offence of rape upon her and committed rape upon the prosecutrix and after commission of the offence, he threatened to kill the prosecutrix and her husband, if she disclosed the incident to anyone.

CHARGE SHEET AND COMMITTAL

3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 12.04.2012 the case was assigned to the Court of the learned predecessor vide order dated 03.05.2012 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 29.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated 04.01.2013 of the learned District and Sessions Judge, Delhi.

CHARGE

4. After hearing arguments, charge for offence under sections 451, 328, 376 and 506 of the IPC was framed against the accused by the learned predecessor vide order dated 09.11.2012 to which he pleaded not guilty and claimed trial.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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PROSECUTION EVIDENCE

5. In order to prove its case, the prosecution has examined as many as 16 witnesses i.e. the prosecutrix, as PW1; Mr. Yamin Bhasin, husband of the prosecutrix as PW2; Ms. Uma Devi, mother of prosecutrix , as PW3; Ms.Kanchan Bhasin, mother in law of prosecutrix, PW4; Mr. Moti Singh, maternal uncle (mama) of prosecutrix, PW5; SI Suneel Dagar, who received the information of rape and recorded the DD and FIR, as PW6; Ct. Gurdawar, who had deposited the pulendas in the FSL, as PW7; HC Rajesh Kumar, witness of investigation, as PW8; Dr. Manoj Kumar, who had medically examined the prosecutrix and the accused, as PW9; Dr. Indresh Kumr Mishra, FSL expert, as PW10; Ct.Krishan Kumar, the witness of investigation, as PW11; HC Surender, MHCM of the case, as PW12; Dr. Preeti Bhadauria, who has been deputed in place of Dr. Rupali Sharma, who had medically examined the prosecutrix, as PW13; WSI Vipnesh, the Investigation Officer of the case, as PW14; WCt. Shashi Bala, who took the prosecutrix for her medical examination, as PW15 and SI Rajender Singh, the first Investigation Officer of the case.

6. The accused has preferred not to cross examine PW 9 due to which his evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C. AND DEFENCE EVIDENCE

7. In his statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him and submitted that he am innocent and he has not committed any offence. He has further submitted that he has been falsely implicated in the present case at the instance of the prosecutrix because he used to support the mother in law of the prosecutrix against her and her husband regarding property dispute between them. He did not go to the house of the prosecutrix on the intervening night of 25.01.2012 and 26.01.2012. He did not made the prosecutrix to inhale any stupefying material / chemical on the above mentioned night. He did not commit rape / sexual assault upon the prosecutrix on the above mentioned night. On 05.02.2012, he was called in the Police Station and falsely implicated in the present case at the instance of the prosecutrix. Accused has preferred to lead evidence in his defence and has examined Mr. Rahul Sethi as DW-1.

ARGUMENTS

8. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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9. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offences under sections 451, 328, 376 and 506 of the IPC, submitting that the prosecution has been able to bring home the charge against the accused by examining its witness whose testimonies are corroborative and reliable.

10.The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is an unexplained delay in the lodging of FIR. There is no medical or forensic evidence against the accused. The complaint made by the prosecutrix is concocted and has been made after deliberation and consultation with her family. The prosecutrix has given false evidence. The evidence of the prosecutrix as well as other prosecution witnesses is unreliable as it suffers from various contradictions and inconsistencies. The investigation has not been properly conducted and there are several lapses in the investigation.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

11.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

12.Under this sphere, I now proceed to test the submissions of both the Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS

13. The prosecution story unveils with a PCR call being received at Police Station Moti Nagar on 04.02.2012 at about 3.20 pm, on the basis of which DD no. 23A was lodged at PS Moti Nagar and same was marked to SI Rajender (PW16)for inquiry and SI Rajender along with his staff reached at the spot (house of the prosecutrix) and after sometime SI Rajender called at Police Station Moti Nagar and gave information that a rape has taken place so some lady officer be sent at the spot and thereafter IO/SI Vipnesh (PW14) along with Ct. Sukhdev reached to the spot and prosecutrix (PW1) her husband Mr. Yaman Bhasin(PW2) his mother Ms. Uma (PW3) mother in-law Ms. Kanchan (PW4) and maternal uncle of the prosecutrix Mr. Moti Singh (PW5) were present at the spot and SI Rajender (PW16), Ct. Rajesh (PW8) and Ct. Kishan (PW11) were also present at the spot when IO/SI Vipnesh (PW14) reached there. SI Rajender (PW16) briefed her about the facts of the case and thereafter he left the spot.

14. The maternal uncle (mama) of the prosecutrix had called the police at 100 number on 04.02.2011 and narrated the incident and asked the police to come to her mother in law' s house. The police came to her mother in law's (PW4) house on 04.02.2011 at around 2.00 pm and enquiry was made from her father in law and they were Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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told to come to the Police Station. In the Police Station, the prosecutrix told about the entire incident which was recorded in writing (Ex.PW1/A).

15. On the intervening night of 25/26.01.2012 at about 12.00 mid night, the prosecutrix (PW1) was present alone at her house and her husband (PW2) had gone for his job out of the house as he is working as a DJ and the prosecutrix (PW1) was not feeling well and her husband was aware of this fact. Someone knocked at the door of her premises and she (PW1) thought it must be her husband and she opened the door and the accused were standing outside the door and she knew him as she had seen him once in the house of her mother in law, who told her that the accused used to do "Utarra' i.e a type of prayer for the well being of a person and her mother in law had told her that her sister in law (nanand) was not doing well in her studies and the accused had done Utaara for her. She had also advised her to get the Utaara done for her husband as he was not keeping well which she had declined. The accused told her that he had been sent by her mother in law to do Utaara for her husband but she refused to get it done since her husband was away for his work and she turned to phone her husband but she did not have balance in her mobile phone and in the meanwhile the accused put some cloth on her face due to which she lost consciousness. The prosecutrix (PW1) regained consciousness about 4.30 am and her husband was in the house and she was having acute body ache at that time and she asked her Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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husband as to how and when he had entered and whether the door was open and her husband told her that he had returned at about 2.30 a.m and as the door was open, he had come inside the house. Then the prosecutrix (PW1) told him about the entire incident regarding the accused and she had noticed that her inner clothes were not on her body when she had regained consciousness and her gown was changed and she told about the same to her husband and her clothes were lying under the bed. The husband of the prosecutrix told her that they will go to his mother's house as she was having acute body ache and was feeling nauseous and could under stand that something wrong had happened to her and felt that she had been forced to have physical relations and had been raped. When they (PW1 and PW2) went to the house of her mother in law, she told them not to tell about the incident to anyone in order to maintain the dignity of the family and her husband protested against not telling about the incident and they moved into her mother's house on 26-27.01.2011 and they did not tell about the incident to her mother as she could make out that they were upset and on her inquiry finally on 03.02.2011 her husband told her about the incident and she called her maternal uncle (mama) on 04.02.2011 who called the police at 100 number and narrated the incident and asked the police to come to her mother in law' s house. The police came to her mother in law's (PW4)house on 04.02.2011 at around 2.00 pm and enquiry was made from her father in law and they were told to come to the PS and in PS she told about the entire incident which was recorded in writing (Ex.PW1/A).

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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16. On 04.02.2012 Ct. Rajesh Kumar (PW8) joined the investigation of this case with IO/SI Vipnesh (PW14) and accompanied the IO to the house of the prosecutrix and SI Rajender (PW16) was present at the spot and complainant/prosecutrix (PW1) met them and IO recorded her statement (Ex.PW1/A) and prepared a rukka (Ex.PW14/A) upon the same. Ct. Rajesh took rukka to Police Station Moti Nagar and handed over to the duty officer SI Suneel Dagar (PW6) who recorded the FIR (Ex.PW6/C). On 04.02.2012 SI Suneel Dagar (PW6) recorded the information in the PS that a rape has been committed by a Tantrik at House no. WZ-92 D, Raja Garden, Delhi and the said information was recorded in the Roznamcha by WHC Bimla and the true copy of the information recorded through DD no. 23 A (Ex.PW6/A). On the same day, Kaymi DD no. 32 A was recorded by SI Suneel Dagar (PW6) when he received a rukka from IO/SI Vipnesh (PW14) through Ct. Rajesh (PW8). The photocopy of the DD no. 32 A (Ex.PW6/B) and also got recorded FIR no. 22/2012 from computer operator on the basis of rukka which he received from the IO/SI Vipnesh (PW14) and the FIR was recorded under section 376/328/506 IPC (Ex.PW6/C).

17. The prosecutrix (PW1) told the police that the accused was working with M/s Rishi Medicos (chemist shop) situated at Bali Nagar and thereafter, IO/SI Vipnesh (PW14) along with the prosecutrix and staff reached to M/s Rishi Medicos where the Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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accused was present and at the instance and identification of the prosecutrix, the accused was arrested vide arrest memo (Ex. PW11/A), and his personal search was conducted by Ct. Kishan (PW11) on the directions of IO/SI Vipnesh and personal search memo (Ex. PW14/E) was prepared. IO/SI Vipnesh (PW14) took the prosecutrix (PW1) to the place of incident from where her clothes i.e. handkerchief, small towel of light yellow colour (Ex.P-1) and underwear (Ex.P-2) were recovered vide seizure memo (Ex.PW1/B). W/Ct. Shashi Bala (PW15) took her to DDU hospital for her medical examination and her parents had also accompanied her. She was medically examined by Dr. Manoj Kumar (PW4) vide MLC (Ex. PW9/A) and doctor had referred her to Department of Gyane for her internal medical examination where she was medically examined by Dr. Rupali Sharma (who has since left the services of the hospital) vide MLC (Ex.PW9/A) and the MLC has proved by Dr.Preeti Bhaduria (PW-13). The blood and the other samples of the prosecutrix were taken by the doctor which were seized by the IO vide seizure memo (Ex.PW14/C). Ct. Kishan (PW11) was sent to the DDU hospital along with the accused for his medical examination and after his medical examination, Ct. Kishan (PW11) brought him to PS Moti Nagar and IO/SI Vipnesh (PW14) along with her staff had already reached there. Ct. Kishan handed exhibits of the case in sealed condition along with the sample seal and IO/SI Vipnesh seized the same vide seizure memo (Ex.

PW11/B). IO/SI Vipnesh (PW14) made inquiries from the prosecutrix and recorded her statement (Ex. PW1/A) and she made her endorsement Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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(Ex. PW14/A) upon the complaint of the prosecutrix and handed over the same to Ct. Sukhdev for registration of FIR and Ct. Sukhdev left the spot along with the rukka. IO/SI Vipnesh had raised demand of Lady constable and one Lady Ct. Shashi (PW15) from Police Station Mayapuri reached to the spot. IO/SI Vipnesh (PW14) inspected the site and prepared the site plan Ex. PW14/B) of the place where incident of rape had occurred and the prosecutrix (PW1) at the time of recording her testimony had shown her the spot and described about the same. The prosecutrix took out one underwear (pink colour) from the dustbin and handed over the same to the IO/SI Vipnesh (PW14) stating that it is the same underwear which she was wearing at the time of incident, removed after the incident and threw the same in dustbin and IO/SI Vipnesh prepared pullanda of the said underwear with the help of white cloth sealed the same with the seal of BS and seized it vide seizure memo (Ex.PW1/B) in the presence of prosecutrix and her mother and IO/SI Vipnesh was not having her seal at that time, therefore she used seal of BS which was available in the malkhana of the PS and the seal, after use, was handed over to Ct. Kishan (PW11). The prosecutrix (PW1) handed over photocopy of her X class certificate (Mark X) which was seized vide seizure memo (Ex.PW14/D) and the prosecutrix was major at the time of alleged incident. IO/SI Vipnesh (PW14) deposited the exhibits of the case in malkhana, PS Moti Nagar and information about the arrest of the accused was given to his father who was also present in the Police Station. The accused was sent to the lock up and on the next day, he was produced before the hon'ble Court and as per the order of the Court, he was sent to judicial custody. As per the direction of Mr. Rakesh Siddharth, Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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learned ASJ (West) who was hearing the bail application of the accused, IO/SI Vipnesh (PW14) had obtained the call detail records of the mobile phones of prosecutrix(PW1) and the accused. Since there were verbal directions of the hon'ble Court of Mr. Rakesh Siddharth, Ld. ASJ during the hearing of bail proceedings of accused, so IO/SI Vipnesh (PW14) had collected the call detail record of mobile phones of the prosecutrix (PW1) and the accused and the above mentioned call detail record (Ex.PW- 14/X) was annexed with the chargesheet, however she did not obtain any certificate from the Nodal officer regarding its authenticity. During investigation, it was revealed that prosecutrix was using the mobile phone number (number mentioned and withheld to protect the identity of the prosecutrix) and the accused was using mobile phone number 9811745026. IO/SI Vipnesh (PW14) recorded the statements under section 161 Cr.P.C. of the prosecutrix (PW1), Mr. Yaman Bhasin (PW2- husband of the prosecutrix), Ms. Uma Devi (PW3- mother of the prosecutrix), Ms. Kanchan Bhasin (PW4- mother in law of the prosecutrix), Mr. Moti Singh (PW5- maternal uncle-mama of the prosecutrix) and other witnesses. On 04.02.2012 IO/SI Vipnesh (PW14), had deposited two parcels and one sample seal and HC Surender (PW12) had made entries of the same vide register no. 19 vide serial no. 2366/12 (Ex.PW12/A). On 05.02.2012 IO/SI Vipnesh deposited two parcels and one sample seal and aforesaid pullandas were deposited vide register no. 19 vide serial no. 2367/12 (Ex.PW12/B). On the same day IO/SI Vipnesh had deposited the personal search articles of the accused (one mobile phone of Samsung) vide register no. 19 at serial no.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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2367/12 (Ex.PW12/B). On 02.03.2012, Ct. Gurdawar Singh (PW7) had deposited the five parcels and two sample seal in the office of FSL Rohini vide register no. 21vide RC no. 28/21/22 (Ex.PW12/C) and after depositing the same Ct. Gurdwar Singh (PW7) came back to Malkhana and handed over copy of the RC and the acknowledgement (Mark A) from the office of FSL. The exhibits of this case were examined by Dr. Indresh Kumar Mishra, Sr. Scientific Officer (Biology) FSL Rohini, (PW10) in the office of FSL vide his report (Ex. PW10/A) and the serological report is (Ex. PW10/B).

18. The allegations against the accused persons are that on the intervening night of 25.01.2012 and 26.01.2012 at about 12.45 am, he committed the house trespass by entering the house of prosecutrix (name mentioned in the file but withheld to protect her identity) at Delhi (address mentioned in file but withheld to protect the identity of the prosecutrix) within the jurisdiction of Police Station Moti Nagar with the intention to commit an offence of rape; on the above said date, time and place, the accused made the prosecutrix inhale certain stupefying material/chemical with the intention to commit the offence of rape upon her and committed rape upon the prosecutrix and after commission of the offence, he threatened to kill the prosecutrix and her husband, if she disclosed the incident to anyone.

IMPORTANT ISSUES Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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19.The important issues and the points in dispute are being discussed hereinafter.

IDENTITY OF THE ACCUSED

20. There is no dispute regarding the identity of the accused Mr.Anil Kumar Shukla who has been identified in the Court by PW1, the prosecutrix, her relations and the police witnesses of investigation. It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR. Accused is also named in the complaint (Ex.PW1/A) and the FIR (Ex.PW6/C).

21.Therefore, the identity of the accused stands established.

AGE OF THE PROSECUTRIX

22. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint (Ex.PW1/A), her MLC (Ex.PW9/A) and in her evidence before the Court, the prosecutrix has mentioned her age as 23 years. As per the prosecution, she was a major at the time of the alleged incident.

23.Therefore, it is clear that the prosecutrix was a major at the time of incident.

VIRILITY OF THE ACCUSED Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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24. Dr.Manoj (PW9) under the supervision of Dr.Ajay Sharma had medically examined the accused vide MLC (Ex.PW9/B). He has not been cross examined on behalf of the accused due to which his evidence remains uncontroverted and unrebutted and can be presumed to be admitted by the accused.

25. It is mentioned in the MLC of the accused (Ex.PW9/A) that "There is no evidence suggestive that he is not capable to perform sexual act".

26.Even on physical examination, the doctor has found that the private parts of the accused to be well developed. There is nothing on the record to show that the accused is impotent or medically incapable of committing the offence of rape.

27.Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.

MLC OF THE PROSECUTRIX

28. It has been argued on behalf of the accused that as there is no medical and forensic evidence against the accused, it indicates that he has been falsely implicated in this case as the prosecutrix does not have any injury as per her MLC (Ex.PW9/A) and when her samples taken during her gynecological examination were compared with those of the accused, nothing incriminating was Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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found in the FSL report (Ex.PW10/A).

29.The Additional Public Prosecutor has argued that the medical and forensic evidence is only for corroboration.

30. It can be seen from the MLC of the prosecutrix (Ex.PW9/A) which is dated 04.02.2012 at 09:45 pm that she does not have any external injuries. She had told the doctor in her history of sexual assault that she was given some chemical inhalation and she lost consciousness. The prosecutrix did not have any fresh external injury. The prosecutrix has not disclosed the name of the culprit to the doctors who examined her. The alleged incident has occurred on the intervening night of 25.01.2012 and 26.01.2012 at about 12:00 midnight and the prosecutrix was medically examined on 04.02.2012 at 09:45 pm. The delay shall be discussed under another heading.

31. PW9 Dr.Manoj had medically examined the prosecutrix in the casualty and referred her to the Gynecology emergency for further examination where Dr.Rupali Sharma had medically examined her and taken her samples. The prosecution has not examined Dr.Rupali Sharma as she had left the services of the hospital and PW13 Dr.Preeti Bhaduria had appeared and identified the writing and signatures of Dr. Rupali Sharma on the MLC of the prosecutrix (Ex.PW9/A).

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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32. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC), the probability is that rape is not committed.

33.These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor.

34.Although there is nothing incriminating against the accused in the medical evidence produced by the prosecution, but per se, the ocular and oral evidence as such cannot be ignored, and lack of medical evidence does not indicate that the accused is innocent.

35.There is nothing incriminating against the accused in the medical evidence produced by the prosecution.

HANKERCHIEF / TOWEL Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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36. On perusal of the seizure memo (Ex.PW1/B), it transpires that only the underwear of the prosecutrix was seized by the IO. The copy of register no. 21 (Ex.PW12/C) vide which the exhibits was sent to the office of FSL finds mention at serial no. 3 that pullanda containing undergarments of the prosecutrix beside other case property has been sent. The FSL form (although not proved by the prosecution but being a document of the prosecution can be read against the prosecution) shows at serial number 3 that one pullinda containing undergarments of the prosecutrix sealed by IO was sent for Biology test.

37. When PW1, the prosecutrix was examined, the case property containing handkerchief and small towel and one under wear (Ex.P1 and Ex.-P2 respectively) was produced and identified by the prosecutrix.

38.PW2, husband of the prosecutrix has not deposed anything regarding the seizure of the underwear or the handkerchief / towel.

39.PW3, mother of the prosecutrix has deposed that PW 2 had handed over the clothes of her daughter to the police.

40. The FSL report (Ex.PW10/A) shows that one undergarment of the prosecutrix "Ex.3a" and one handkerchief "Ex.3b" were in parcel no.3.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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41.It is clear that neither the prosecutrix nor her husband nor her mother had given the handkerchief / towel to the IO and the presence of the handkerchief / towel in parcel no.3 examined vide PW10/A indicates that case property has been tampered with and one extra exhibit i.e. handkerchief /towel has been added due to which the possibility of false implication of the accused becomes strong.

42. The prosecution has not been able to explain as to how the handkerchief/towel was added in the case property when it was not given by any witness nor seized by the IO but surfaced while being examined by the FSL expert (PW10).

43.Due to the presence of the handkerchief/towel a shadow of doubt is cast on the prosecution case.

FORENSIC EVIDENCE

44. It can be seen from the FSL reports (Ex.10/A and Ex.PW10/B) that human semen was detected on exhibits "3a", "3b" and "5" i.e. underwear of the prosecutrix, handkerchief and underwear of the accused respectively and blood was detected on exhibit "4" i.e. gauze cloth piece having brown stains described as blood sample of the accused.

45. The serological report (Ex.PW10/B) indicates that ABO groupings/remarks for "3a" is inconclusive, "3b" is no reaction and Sessions Case Number : 70 of 2013.

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"5" is no reaction.

46.Although, human semen has been found on the undergarment of the prosecutrix but it has not been linked with the accused as the ABO grouping is inconclusive. It is also clear that the prosecutrix remained in the company of her husband after the alleged incident which occurred on the intervening night of 25.01.2012 and 26.01.2012 at about 12:00 midnight and the prosecutrix was medically examined on 04.02.2012 at 09:45 pm. The possibility of the prosecutrix having physical relations with her husband during this period cannot be completely ruled out.

47.Therefore, it is clear that there is no forensic evidence against the accused.

UNDERGARMENT OF THE PROSECUTRIX

48.It has already been discussed above that besides the undergarment of the prosecutrix, one handkerchief/towel has also been found in the pullanda opened in the FSL and no explanation is coming forth regarding the presence of handkerchief/towel.

49. Regarding the undergarment, it may be mentioned that as per the MlC of the prosecutrix (Ex.PW9/A), the prosecutrix and lady Ct. Shashi Bala had told the doctor that her undergarment was already sealed at Moti Nagar PS. Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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50. PW1 and PW2 have not deposed anything regarding her undergarment being seized. PW3 has deposed that PW 2 had handed over the clothes of her daughter to the police. PW14 has deposed that "I seized the same vide seizure memo Ex. PW14/C and same bears my signatures at point A. The prosecutrix took out one underwear (pink colour) from the dustbin and handed over the same to me stating that it is the same underwear which she was wearing at the time of incident, removed after the incident and threw the same in dustbin. I prepared pullanda of the said underwear with the help of white cloth sealed the same with the seal of BS and seized it vide seizure memo Ex. PW1/B (already exhibited) in the presence of prosecutrix and her mother."

51. On perusal of the seizure memo (Ex.PW1/B), it transpires that only the underwear of the prosecutrix was seized by the IO. The copy of register no. 21 (Ex.PW12/C) vide which the exhibits were sent to the office of FSL finds mention at serial no. 3 that pullanda containing undergarments of the prosecutrix beside other case property has been sent.

52.As per the IO SI Vipnesh the undergarment of the prosecutrix has been seized after she has been medically examined and the prosecutrix had taken out the same from the dustbin and handed it to her stating that it is the same underwear which she was wearing at the time of incident.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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53.The MLC of the prosecutrix and the evidence of the IO regarding the seizure of the underwear are contradictory.

54.It is clear from the evidence of the prosecutrix that when she had allegedly recovered consciousness after the incident of rape had occurred, she had noticed that her inner clothes were not on her body and her gown was changed. It is also clear from her evidence that she had not worn the same underwear again after the incident.

55.In such a situation, when the undergarment was not worn again by the prosecutrix after the incident of rape, the human semen detected on the same cannot be attributed due to the act of the accused, which otherwise also the FSL report does not support.

56. The recovery of the undergarment itself is doubtful and the underwear (Ex.P-1) is not connected with the accused in any manner as per the FSL report.

57.Therefore, the alleged recovery of the undergarment of the prosecutrix and its forensic examination is of no help to the prosecution against the accused.

ACCUSED-A GODMAN (TANTRIK) Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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58.First of all, under this heading, it is necessary to ascertain whether or not the accused is a tantric (Godman).

59. A Tantrik baba is the person practicing the art of tantric. A tantra is a Hindu or Buddhist mystical or magic text, dating from the 7 th century involving mantras, meditation, yoga and ritual. It is the most controversial branch of Indian spiritual studies as it involves black magic. It is neglected by most people in the society. Despite of all the accusations, tantric represents the practical aspect of the Vedic tradition. Tantrik baba is the one who performs black magic on people or things to change the fate of it completely ..........http://vashikaranguru.net.in

60.The prosecutrix has deposed that the accused had been seen by her in the house of her mother in law who had told her that he used to do 'utaara' i.e. a type of prayer for the well being of the person and that the accused had done 'utaara' for her sister in law and her mother in law wanted him to do the same for her husband as she was not keeping well.

61.However, PW4, mother in law of the prosecutrix, has not deposed anything incriminating in her examination in chief against the accused that he used to do 'utaara' or that he had done 'utaara' for her daughter and she wanted him to do the same for her son who is the husband of the prosecutrix. However, she has admitted regarding the same in her cross examination by the State but she Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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has denied that she had told the accused to visit the house of her son. She has also denied that the prosecutrix had told her about the incident of rape. She has deposed that she had told the police that she had asked her son not to disclose about the incident of rape to anyone outside the house as it is the matter of respect of family. She has denied that there was some property dispute between her and her son. She has also deposed that she can not say whether the present case is true or false as her daughter in law knows about the same.

62.The prosecution has not produced any positive evidence to prove that the accused is a tantrik (Godman) who used to do "utaara". The prosecution has also not examined the sister in law of the prosecutrix whose "utaara" the accused had allegedly conducted.

63.It is clear that nothing incriminating was recovered from the possession of the accused or at his instance which could indicate that the accused was a tantrik (Godman). There was nothing which could suggest that the accused was practicing any occult sciences, mystic or magical practices, paranormal activities or spiritual or religious activities.

64.The prosecution has not been able to prove that the accused was a Tantrik (Godman) who had done "utara" for improving the health. The fact that PW3 did not mention about the same in her examination in chief indicate that the allegations are false.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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65.All these facts in totality indicate that the accused was not a Tantrik (Godman).

WHETHER THE HUSBAND OF THE PROSECUTRIX WAS NOT KEEPING WELL

66.The prosecution has not produced anything on record to show that PW2, the husband of the prosecutrix, was not keeping well or that his health was bad or deteriorating and PW4, his mother, had sent the accused for doing his "utaara". No medical record or any other proof or document has been produced or proved by the prosecution to show the same.

67.If PW2 was not unwell, then there was no requirement of the accused doing "utaara' for him.

68.No explanation is coming forth from the prosecution about the failure to mention about the husband of the prosecutrix agreeing to the accused for doing his "utaara" (which is a very important and material issue).

69. 152. All these above facts indicate that the prosecution has failed to show that the husband of the prosecutrix was not keeping well.

ARREST OF THE ACCUSED Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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70. As per the arrest memo of accused (Ex.PW11/A), he had been arrested from Rishi Medicos at 2.45 am by IO Insp. Vipnesh and Ct. Krishan. IO SI Vipnesh, PW14 has deposed that she along with the prosecutrix and staff had reached Rishi Medicos, where accused was present and at the instance and identification of the prosecutrix he was arrested. PW11 Ct. Krishan Kumar has deposed on similar lines.

71.PW1, the prosecutrix has not deposed that she was present at the time of arrest of accused or that it was her instance and her identification that the accused has been arrested in the present case.

72.The prosecution has not been able to explain as to how the accused was identified when the prosecutrix has neither deposed that she had accompanied the IO and Ct. Krishan nor has deposed that she had identified the accused.

73.In the circumstances, the manner in which accused has been arrested in the present case is not clear and the documents of arrest appear to have been manipulated.

PLACE OF INCIDENT

74.As per the prosecution case and as deposed by PWs 1, 2, 3, 4 and 5, the place of incident is the house of prosecutrix at Bali Nagar.

75.SI Rajender, PW16, first Investigation Officer, has deposed that he Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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along with Ct. Sukhdev had gone to Raja Garden i.e the house of PW4, mother in law of the prosecutrix. He has not deposed anywhere that he had gone to the house of prosecutrix at Bali Nagar.

76.PW14, has deposed that she along with Ct. Sukhdev had gone to the spot where SI Rajender along with his staff had reached at Bali Nagar.

77.PW8 HC Rajesh Kumar has deposed that he had accompanied IO SI Vipnesh to Bali Nagar i.e. house of prosecutrix.

78. PW6 SI Sunil Dagar who had been given DD No. 23 A (Ex.PW6/A) that a rape had been committed by a Tantrik at Raja Garden and he had prepared the Kaimi DD NO. 32A Ex.PW6/B.

79.PW5, the maternal uncle of the prosecutrix, has deposed that the prosecutrix was solemnized with PW2 resident of Raja Garden.

80.PWs 1 to 4 have deposed that the incident had occurred at Bali Nagar.

81.PW14 has not been able to explain as to how she reached Bali Nagar when PW16 has deposed that he had gone to Raja Garden. The link between the police reaching Raja Garden and going to Bali Nagar to the house of prosecutrix is missing and has not been Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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explained by the prosecution.

PROSECUTRIX BEING UNCONSCIOUS-CDRS

82.PW1 has deposed that the accused had put some cloth on her face due to which she lost consciousness. Her husband returned at about 2.30 am. PW1 has deposed regarding her mobile number maintained on the date of incident 25.01.2012 (the mobile number has been mentioned in the file and is withheld to protect the identity of prosecutrix). Then she had deposed that the said mobile number of her husband was with her. Another mobile number (the mobile number has been mentioned in the file and is withheld to protect the identity of prosecutrix) which was her's was with her husband on the date of incident.

83.PW2, has deposed that he had returned at around 01.25 am. Around 04.30 am his wife woke up and told him about the incident. PW2 has also deposed on similar lines as PW1 regarding the mobile phones and the mobile numbers.

84.The alleged incident had occurred on the intervening night of 25.01.2012 and 26.01.2012 at about 12.00 midnight - 12:45 am - 01:45 am. The prosecutrix has deposed that she had become unconscious when the accused had put a cloth on her face and thereafter the offence of rape was committed.

85. It is clear from the CDRs (Mark PW14/X) produced by SI Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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Vipnesh, PW14, who had been directed to collect the same by the Court of the learned Additional Sessions Judge hearing the bail application of the accused, that both the mobile numbers which were with the prosecutrix and her husband were working and they had also had several conversations during the time when the prosecutrix was allegedly unconscious.

86.The CDRs are the documents of the prosecution and can be read against the prosecution even without the formal proof as the nodal officers have not been examined.

87.The CDRs indicates that both the mobile numbers were used by the prosecutrix and her husband for talking to each other during the period she was allegedly unconscious which clearly shows that the prosecutrix was not unconscious.

88.Further, the cloth allegedly used for making the prosecutrix unconscious has not been recovered from the possession of accused or at his instance nor the intoxicant has been recovered.

89.In such a situation it is not possible to believe that the prosecutrix was unconscious as the CDRs show otherwise that there were several conversations between the mobile phones of the prosecutrix and her husband when she was allegedly unconscious.

90.No intoxicating or stupefying substance has been recovered from Sessions Case Number : 70 of 2013.

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the possession of the accused or at his instance. Neither any incriminating intoxicant has been recovered from the possession of the accused nor the gastric lavage of the prosecutrix was taken and sent for forensic examination (since there is a gross delay in lodging of FIR).

91. It may be mentioned here that the hon'ble Delhi High Court in the case reported as Santosh Kumar v. State, 2008 (4) JCC 2919 has observed that no conviction can simply be on the basis of the statement of the witness that he became unconscious because of eating the biscuit or drinking tea offered to him by the accused as there had to be medical evidence to the effect that the victim had become unconscious because of consuming any drug or intoxicating substance etc. mixed with tea or biscuit. No such substance had been recovered from the accused.

92.In the absence of any incriminating substance and evidence, the allegation of the prosecutrix that she was made to inhale some intoxicant in a cloth by the accused due to which she became unconscious is not believable as it remains a bald assertion with any substantiation.

THREAT BY ACCUSED

93. In her complaint (Ex.PW1/A) and her evidence, the prosecutrix has not mentioned anything about threat by the accused. claimed that the accused threatened to kill her on 31.10.2011 in the morning at Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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C-199, Khyala New Delhi if she did not maintain physical relations with him.

94.Even PW2 has not deposed anything regarding the threat allegedly given by the accused.

95.The effect of the alleged threat, has not been disclosed anywhere nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Also, when it has been observed that neither the prosecutrix was made to inhale or smell any intoxicating substance nor she became unconscious nor she was raped, the question of her being threatened also does not arise.

96.Therefore, the prosecution has failed to prove that the accused had threatened the prosecutrix at any point of time.

SITE PLAN

97. The prosecutrix has deposed that the IO took her to the place of incident from where her clothes were recovered vide seizure memo (Ex.PW1/B). She has not deposed anything regarding her pointing out the place of incident.

Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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98. SI Vipnesh, PW14 has deposed that the prosecutrix had shown her the spot on which site plan (Ex.PW14/B) was prepared.

99. On perusal of the site plan (Ex.PW14/B), it transpires that it does not have the signatures of the prosecutrix.

100. The above fact in totality indicate that although the site plan has been prepared but the same has not been prepared at the instance of prosecutrix and the same makes the prosecution version doubtful.

DELAY IN FIR

101. The alleged incident occurred on the intervening night of 25.01.2012 and 26.01.2012 at about 12.45 am. The FIR (Ex.PW6/C) has been registered on 04.02.2012 at 19:35 hours (07:35 pm). DD No.23 A dated 04.02.2012 at 03:20 am (Ex.PW6/A) was prepared when PW5 informed the police of the incident.

102. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration. It has been submitted that the FIR was lodged by the prosecutrix after due deliberation and consultation with her family.

103. The contention of the prosecution is that there is no delay in lodging the FIR as the prosecutrix lodged the complaint as early as Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

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possible. PW1 had told about the alleged incident to PW2, her husband. Then they went to PW4, her mother in law, who told them not to lodge the case. Then they went to the house of PW3, the mother of the prosecutrix, and when they told her about the incident, PW5, the maternal uncle of the prosecutrix, was informed by PW3 and then on the next day, PW5 the maternal uncle along with his two brothers came to the house of PW3 and all of them went to the house of PW4 from where PW5 informed the police.

104. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.

105. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the Sessions Case Number : 70 of 2013.

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cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.

106. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.

107. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:

i. "The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in Sessions Case Number : 70 of 2013. Unique Case ID Number : 02401R0167562012. FIR No. 22/2012, Police Station Moti Nagar, Under sections 376/328/506 of the Indian Penal Code. State vs Anil Kumar Shukla. -:: Page 36 of 61 ::-

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lodging of first information report does not in any way render prosecution version brittle.

108. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:

i. "The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."

109. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:

i. "No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"

110. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:

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i. "in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them. It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"

111. As per the complaint / statement of the prosecutrix to the police, (Ex.PW1/A), which is dated 04.02.2012, the alleged incident occurred on the intervening night of 25.01.2012 and 26.01.2012 at about 12.45 am.

112. In her examination in chief, the prosecutrix as PW1, has deposed that the incident occurred on 25.01.2012 at 12:00 midnight.

113. It is clear that the prosecutrix did not complain to the police till the lodging of the FIR on 04.02.2012 although she had told her family.

114. Here, the judgment of the hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue Sessions Case Number : 70 of 2013.

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and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.

115. The prosecutrix and the prosecution have not been able to justify the delay and why the prosecutrix did not report the matter immediately or earlier. No logical explanation has been furnished by the prosecution for the delay, as elaborated above.

116. These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The possibility that the FIR was lodged after due deliberation and consultation cannot be ruled out. The discrepancies in the evidence and the documents regarding the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.

117. Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.

EVIDENCE AND COMPL AINT OF THE PROSECUTRIX

118. In her complaint (Ex.PW1/A), the prosecutrix has stated that Sessions Case Number : 70 of 2013.

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the accused had come to her residence at about 12:45 am on 25.01.2012 and had made her smell something due to which she had become unconscious and had recovered consciousness at about 04:30 am. Her body, specially her private parts, had pain and her inner wear were not on her body. Her husband had enquired from her as to why the door had not been closed and then she told her husband about the accused making her smell something and raping her.

119. In her examination in chief, the prosecutrix as PW1, has deposed that the accused had come to her house on 25.01.2012 at about 12.00 mid night and put some cloth on her face due to which she has lost consciousness and regained her consciousness at about 2.30am. She has noticed that her inner clothes were not on her body when she regained consciousness and her gown was changed. As she was having acute body ache and was feeling nauseous, she could understand that something wrong had happened with her. She felt that she had been forced to physical relation and had been raped.

120. In her MLC (Ex.PW9/A), which is 04.02.2012 she has told the doctor that she was given some chemical inhalation and she lost her consciousness. At the time of her examination, she was not wearing any undergarment.

121. It can be seen from the different statements of the prosecutrix Sessions Case Number : 70 of 2013.

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that she has made several contradictions regarding the incident, the manner in which the incident had occurred, her inner wear, her gown, time of her regaining consciousness etc.

122. It would be relevant to mention here that according to prosecutrix, she remained unconscious from about 12:00 mid night till 04:30am. It has already been discussed about that the mobile phones used by the prosecutrix and her husband and there CDRs show that the phones were in used during the time she was allegedly unconscious and the prosecutrix and her husband talked to each other several times. This fact indicates that the prosecution was never unconscious as she was talking to her husband on phone.

123. Regarding the body ache, the prosecutrix has mentioned in her cross examination that she had not consulted any doctor after the incident immediately with regard to her body pain in her private parts. She had consulted Dr. Kaushalya at Madipur near her mother's house after two days. However, the prosecutrix and the prosecution have neither produced the medical record of the prosecutrix nor examined Dr. Kaushalya regarding the alleged body pain in the private parts of the prosecutrix due to which prosecution version appears to be doubtful.

124. The prosecutrix has not mentioned about her medical examination by Dr.Kaushalaya to the police in her complaint (Ex.PW1/A) as well as to the doctor who examined her vide her Sessions Case Number : 70 of 2013.

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MLC (Ex.PW9/A).

125. It is borne out of the record that the house of the prosecutrix where the alleged incident was occurred was situated in thickly populated residential area. The relations of the husband of the prosecutrix i.e. Chacha, Chachi, Tai also resided in the same house. However, neither the prosecutrix nor her husband immediately informed them about the incident nor they were associated in the investigation.

126. The prosecutrix has stated in her complaint (Ex.PW1/A) that she had told her husband about the accused making her inhale some intoxicant and raping her but neither the cloth used for making her unconscious nor any chemical or intoxicant has been recovered from the spot of incident or at the instance of the accused.

127. The prosecutrix has alleged that she was raped by the accused while she was unconscious but the CDRs (Ex.PW14/X) show otherwise that she was talking on the phone with her husband while she was allegedly unconscious. If she was not unconscious during the said time, then she was apparently not raped by the accused as alleged by her.

EVIDENCE OF PWS 2 to 5

128. The PWs 2 to 5 are hostile on one point or the other although they have ostensibly supported the prosecution case. It may be Sessions Case Number : 70 of 2013.

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mentioned here that PWs 2 to 5 are all hear-say witnesses and have not witnessed any incident as such.

129. PW 2 had returned to his house after sometime of the incident when PW1, his wife, had told him about the same. PW2 had not found anything abnormal in the premises and all the household articles were lying intact. He has also deposed that his statement was not recorded by the police. Both PWs 1 and 2 had gone on the next morning to PW4, who is the mother of the PW2, and PW4 had told them not to disclose the incident as the respect of the family would be effected. It may be mentioned here that PW4 was completely hostile and had not deposed incriminating against the accused regarding her sending him to the house of PWs 1 and 2 for doing 'Utara'.

130. PW3 and PW5 are the mother and maternal uncle respectively of the prosecutrix. PW3 has deposed that on 28.01.2012, PWs 1 and 2 had come to her house and stayed with her upto 03.02.2012. On her insistence, on 03.02.2012, PW2 had told her about the rape of PW1 by the accused. PWs 1 and 2 had told her that they had not told the matter earlier to her as they were threatened by the accused. It may be mentioned here that PW1 has not deposed anything regarding the accused threatening her or PW2.

131. PW5 has deposed that he had been told on phone by PW3 on 03.02.2012 that PW1 had been raped by the accused. He had gone Sessions Case Number : 70 of 2013.

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to the house of PW3 on 04.02.2012 along with his two brothers Mr. Janki Parsad and Mr. Ramnath. He made a call to the police from the residence of PW4, mother in law of the prosecutrix, where all the family members had reached. The police had come to the residence of PW4. He has deposed in his cross examination by the Additional Public Prosecutor that PW3 had told him that accused is a Tantrik and he had raped PW1 and he had inquired the same from PW1. He has admitted that he had told the police that after conversation with the family it was decided that a case should be registered against the accused.

132. It may be mentioned here that PW4 has deposed that incident occurred on 26.01.2011 while the date of alleged incident is the intervening night of 25.01.2012 and 26.01.2012.

133. It is clear from the evidence of PWs1 to 5 that the case had been registered after due consultation and deliberation between the family. The prosecution has not associated Mr.Janki Parsad and Mr. Ram Nath brothers of PW3 and 5 despite their being involved in the discussions before the registration of the case. The fact that there are several variations in the statements of PWs 2 to 5 and PW1 indicates a strong possibility of the accused being implicated in the present case after due consultation and deliberations.

134. It may be mentioned here that conduct of PW2 to 5 is not very natural in a situation where PW1, who is the wife, daughter, Sessions Case Number : 70 of 2013.

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daughter in law and niece respectively of PWs 2 to 5, has allegedly been raped by the accused as none of them cared to call the police immediately when they came to know about the alleged rape of PW1 by the accused. If she had actually being raped, perhaps first of all she herself would have called the police or when her husband was there, he would have done so or when the elder members of the family were informed, they would have immediately informed the police. The fact that none of them care to inform the police makes the prosecution version doubtful.

MENS REA / MOTIVE

135. Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

136. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be Sessions Case Number : 70 of 2013.

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convicted. Motives of men are often subjective, submerged and un- amenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

137. In the present case, a story has been projected that the accused has raped the prosecutrix after putting a cloth on her face due to which she became unconscious and then he raped her. This version appears to be untrue as there is no reason why he would do so. No reason is shown as to why the accused would jeopardize his future. He has claimed that the prosecutrix and her husband had a property dispute with her mother in law and he was supporting the mother in law of the prosecutrix due to which he has been falsely implicated in the present case.

138. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution. He is a mature man aged 30 years (as per his MLC-Ex.PW9/B) and capable of understanding the implications of his acts. He has completely denied having visited the house of the prosecutrix on the date and time of alleged incident.

Sessions Case Number : 70 of 2013.

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139. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence.

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

140. There does not appear to be any criminal intention and mens rea on the part of the accused.

DEFENCE OF THE ACCUSED

141. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has stated that "I used to support the mother in law of the prosecutrix against her and her husband regarding property dispute between them. I did not went to the house of the prosecutrix on the intervening night of 25.01.2012 and 26.01.2012. I did not made the prosecutrix to inhale any stupefying material / chemical on the abovementioned night. I did not commit rape / sexual assault upon the prosecutrix on the abovementioned night. On 05.02.2012 I was called in the PS and Sessions Case Number : 70 of 2013.

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falsely implicated in the present case at the instance of the prosecutrix."

142. Accused has preferred to examine Mr. Rahul Sethi, DW1, in his defence. He is the owner of the Rishi Medicos situated at H-1 Bali Nagar, Delhi which he used to run along with my father Mr. Naresh Kumar Sethi who has expired on 23.07.2012. Accused Anil Kumar Shukla used to work at his mentioned medical store since the year 2009 at a salary of Rs. 6000/- per month and his working hours were from 05:00 p.m to 01:00 a.m. As the chemist shop is situated inside the Khetarpal Hospital, Bali Nagar, Delhi the shop is open for 24 hours. On 06.02.2012 at about 05:00 p.m WSI Vipnesh from PS Moti Nagar visited my medical store and in his presence she made inquiries and recorded the statement (Ex.DW1/A) of his father Mr. Naresh Kumar Sethi. It was a matter of routine that after closing the medical store at about 01:00 a.m or so, he would hand over the keys of the shop at his residence. In the intervening night of 25/26.01.2012, as per routine, accused Anil Kumar Shukla came at his residence at about 12:30 a.m or 01:00 am and handed over the keys of the medical shop to him and went away. He knows him personally for the last five years. He is a gentleman and he has been falsely implicated in the present case with ulterior motives.

Accused Anil Kumar Shukla is innocent.

143. DW1 has been cross examined by Additional Public Prosecutor for State and he deposed that accused Anil Kumar Sessions Case Number : 70 of 2013.

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Shukla worked at their medical shop since the year 2009 till the time he was arrested by the police in the present case. Presently, accused is not working at their medical shop. As his shop is very small, neither he nor his father had maintained any record of their employees. He did not have any documentary proof to show that accused was working in the Chemist shop at a salary of Rs. 6000/- per month. I did not maintain any attendance register nor obtained any receipt of the payment of salary to the accused. When the accused had come to give the keys of the shop at my residence on the intervening night of 25/26.01.2012 besides him, his parents and his sister were also there. The distance between the chemist shop and his residence is about 5 minutes walk. On the intervening night of 25/26.01.2012, he had personally not taken the keys of chemist shop from the accused as his mother had taken the same. He cannot tell the exact time when the accused had handed over the keys of the shop as he did not see the watch. He was awake at that time and watching T.V. He usually sleeps at 01:00 a.m, 01:30 am or 02:00 a.m. His entire family is awake at 01:00 a.m as they sleep late. His father was awake on the intervening night of 25/26.01.2012 when the accused had come to give the keys. The block of the prosecutrix (block mentioned in file and withheld to protect the identity of the prosecutix) at Bali Nagar is at a distance of about 5 minutes walk from his residence.

144. It is clear from the evidence of DW1 that at the time of the alleged incident, the accused had gone to his house to give the keys Sessions Case Number : 70 of 2013.

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of the medical store. It is also clear that the house of the prosecutrix is about 5 minutes walk from the house of the witness. However, when the accused, after working for the entire day goes to the house of his employer late at night to give the keys, the possibility of his going to the house of the prosecutrix is very less probable as he would go to his own house to retire although probable considering the distance.

145. It is clear from the MLC of the prosecutrix (Ex.PW1/A) and the FSL reports (Ex.PW10/A and Ex.PW10/B) that the prosecutix does not have any injury and there is nothing found in the exhibits of the prosecutrix and the accused to connect the accused with the offence. There is no medical and forensic evidence against the accused.

146. It is also clear while discussing the different statements of the prosecutrix, that her version is neither reliable nor believable.

147. Therefore, the defence of the accused although is not proved but considering the unreliable evidence of the prosecutrix which suffers from overwhelming contradictions and glaring inconsistencies, the prosecution version is not believable and reliable.

148. The case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all Sessions Case Number : 70 of 2013.

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the ingredients of the offence alleged to have been committed by the accused.

149. Therefore, as the prosecution version is unreliable and unbelievable that the accused had raped the prosecutrix after making her smell some intoxicant due to which she became unconscious, the defence of the accused appears to be plausible that he has not committed any offence.

PUBLIC WITNESSES NEITHER CITED NOR EXAMINED

150. The prosecution has failed to examine some very material witnesses and this lapse gives a severe blow to the prosecution case.

151. The Investigation Officer has failed to associate in the investigation the Chacha, Chachi and Tai of the husband of the prosecutrix who reside in the same house as the prosecutrix. The Investigation Officer has also failed to associate Dr.Kaushalya to whom the prosecutrix had shown herself after two days of the incident. The Investigation Officer has also failed to associate the two other maternal Uncles of the prosecutrix namely Mr.Janaki Prasad and Mr.Ram Nath who had gone with PW5 to the house of PW3 and then to the house of PW4 from where PW5 had informed the police. These very material witnesses have neither been cited as witnesses nor produced nor examined by the prosecution. Their evidence could have facilitated the Court in adjudicating the matter. Sessions Case Number : 70 of 2013.

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152. By not citing, producing and examining the above named persons, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused.

INVESTIGATION

153. The investigation conducted in the present case has been deposed by police witnesses. The documents have been proved by their authors and signatories to the same. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.

154. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. There is nothing on the record to show that their testimonies are false or not reliable.

155. However, it must be mentioned here again that the Investigation Officer has failed to associate the Chacha, Chachi and Tai of the husband of the prosecutrix, Dr.Kaushalya, Mr.Janaki Prasad and Mr.Ram Nath, maternal Uncles of the prosecutrix who were very material for this case.

156. It is already been discussed about the link missing regarding the police reaching Raja Garden at the residence of PW3 who is mother in Sessions Case Number : 70 of 2013.

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law of PW1, the prosecutrix and the residence of PW1 at Bali Nagar. PW16 has deposed that he had gone with Ct. Sukhdev to Raja Garden but PW Sukhdev has not been examined in the present case. PW14 has deposed that she had recorded the statement of Ct. Sukhdev which is not in the judicial file and he has not been cited as the witness.

157. Further, both PW16 SI Rajender, initial Investigating Officer, and PW14 SI Vipnesh, second Investigating Officer have deposed that they had gone with Ct. Sukhdev and it is not possible that Ct. Sukhdev had accompanied both as PW16 had gone to Raja Garden and PW14 had reached the spot later on. If Ct. Sukhdev was with SI Rajender, then he could not have been with SI Vipnesh when she reached subsequently.

158. Here, it may also be mentioned that PW14 has deposed that the seal after use was handed over to Ct. Kishan but PW11 Ct. Kishan has not so deposed.

159. PW1 has deposed that she had told the IO that when she regained consciousness her gown was changed but PW14 has not seized the gown and has deposed that only the underwear of the prosecutrix was seized.

160. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix and other material witnesses, then the investigation becomes less important as prosecutrix has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused. Sessions Case Number : 70 of 2013.

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161. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.

162. Therefore, the investigation is not being taken into consideration although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable and believable.

FINAL CONCLUSION

163. The prosecution has failed to furnish any explanation in respect of the numerous contradictions and inconsistencies in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix and other prosecution witnesses is that Sessions Case Number : 70 of 2013.

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the accused has not committed the alleged offences.

164. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had committee dthe offences.

165. Since the evidence of the prosecutrix, PW1, is neither reliable nor believable as there are overwhelming contradictions in her different statements as well as in totality with the other evidence on record, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.

166. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

(a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

(b) The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(c) The circumstances should be of conclusive nature and tendency;

(d) They should exclude every possible hypothesis except the one to be proved; and

(e) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the Sessions Case Number : 70 of 2013.

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innocence of the accused and must show that in all human probability the act must have been done by the accused.

167. Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix nor committed any other offence against her. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

168. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.

169. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.

170. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and Sessions Case Number : 70 of 2013.

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in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.

171. It is a case of heinous crime of rape which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place. Here in the present case, is a prosecutrix who is not truthful. She has given different statements and made numerous contradictions and inconsistencies which remain unexplained.

172. The prosecution has miserably failed to prove that on the intervening night of 25/26.01.2012 at about 12.45 am, the accused committed the house trespass by entering the house of prosecutrix (name mentioned in the file but withheld to protect her identity) at Delhi (address mentioned in file but withheld to protect the identity of the prosecutrix) within the jurisdiction of Police Station Moti Nagar with the intention to commit an offence of rape; on the above said date, time and place, the accused made the prosecutrix Sessions Case Number : 70 of 2013.

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inhale certain stupefying material/chemical with the intention to commit the offence of rape upon her and committed rape upon the prosecutrix and after commission of the offence, he threatened to kill the prosecutrix and her husband, if she disclosed the incident to anyone.

173. All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of house trespass, intoxication, rape and threat by accused Mr.Anil Kumar Shukla and the accused merits to be acquitted for the offence under sections 451, 328, 376 and 506 of the IPC.

174. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Anil Kumar Shukla.

175. Accordingly, Mr.Anil Kumar Shukla, the accused, is hereby acquitted of the charges for the offences of house trespass, intoxication, rape and threat under sections 451, 328, 376 and 506 of the IPC.

Sessions Case Number : 70 of 2013.

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COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES

176. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

177. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

178. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is neither reliable nor believable, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.

179. Here, I would also like to mention, once again as already observed in several other similar cases, that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape, Sessions Case Number : 70 of 2013.

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after trial, as evidence of the prosecutrix is not reliable. In the circumstances, such a person, an acquitted accused, who has remained in custody for a considerable period during inquiry, investigation and trial and who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.

180. It cannot be ignored that the accused due to this case which has ultimately ended in his acquittal, has suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. He has remained in custody for a considerable period.

181. It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss. However, his acquittal may give him some solace. He may also file any case for damages against the prosecutrix, if advised. No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made which may be misused by a woman but where Sessions Case Number : 70 of 2013.

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is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for a man.

182. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

183. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.

Announced in the open Court on (NIVEDITA ANIL SHARMA) this 08th day of February, 2016. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

*********************************************************** Sessions Case Number : 70 of 2013.

Unique Case ID Number : 02401R0167562012.

FIR No. 22/2012, Police Station Moti Nagar, Under sections 376/328/506 of the Indian Penal Code. State vs Anil Kumar Shukla. -:: Page 61 of 61 ::-

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State vs Anil Kumar Shukla. -:: Page 1 Of 61 ::- on 8 February, 2016