Delhi District Court
State vs . Mukesh Sharma & Anr. on 14 September, 2011
State vs. Mukesh Sharma & Anr.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 04/08
ID No. 02403R0395812005
FIR No. 919/04
PS: Malviya Nagar
U/s 376/384/506/328/120B IPC
State Vs. (1) Mukesh Sharma, S/o Late Sh.
Udai Sharma, R/o 741, Chirag Delhi,
New Delhi.
(2) Suman Sharma, W/o Sh. Mukesh
Sharma, R/o 741, Chirag Delhi, New
Delhi.
Date of institution : 27.07.2005
Case received by way of transfer : 25.11.2008
Date when arguments were concluded : 05.09.2011
Date of Judgment : 14.09.2011
SC No. 04/08 1/32
State vs. Mukesh Sharma & Anr.
JUDGMENT
The accused persons were sent for trial for the offences U/s 376/384/506/328/120B IPC. The case was registered against them on 19.10.2004 when the prosecutrix came to the police post Seikh Sarai, PS Malviya Nagar and submitted a written complaint. This complaint was against the accused Mukesh Sharma in which some allegations were also leveled against the coaccused Suman Sharma. The prosecutrix in her complaint has alleged that she was residing in House No. 776C, Chirag Delhi, New Delhi and the accused Mukesh Sharma was known to her since the year 1994. The accused Mukesh Sharma was running a Textile Designing and Coaching Institute in the name and style of Kartike Institute in his house. The prosecutrix had done textile designing course and in the year 1995, she took up a job with the accused Mukesh Sharma in his institute for giving coaching in designing. Initially, the accused Mukesh Sharma offered her Rs. 2,000/ per month as the remuneration. Thereafter, the prosecutrix alleged that in the month of May 1996, she was sitting in the coaching centre when the accused Mukesh Sharma came who was smelling alcohol and overpowered her. Initially, he molested her and when she shouted, he threatened to kill her and then he raped the prosecutrix. After the act, he threatened the prosecutrix not to disclose the incident to anybody, otherwise he would kill her family members. SC No. 04/08 2/32
State vs. Mukesh Sharma & Anr.
The complaint further alleged that thereafter, after every 3/4 days, the accused Mukesh Sharma used to take advantage and despite her resistance, he used to commit rape upon her. The prosecutrix further alleged that the accused Mukesh Sharma is a bad character and out of fear, she did not disclose about the commission of rape upon her by the accused Mukesh Sharma. She further alleged that in between he also forced her to write certain love letters as well. It is further alleged that in the year 1999, the accused Suman Sharma, wife of accused Mukesh Sharma offered a glass of juice to the prosecutrix in the coaching centre, after taking which, she felt some giddiness and when she regained the consciousness, she found that she has been raped by accused Mukesh Sharma with the help of his wife. She further alleged that till the year 2002, the accused Mukesh Sharma continuously kept on committing rape upon her despite her resistance. Some time he also used to beat her. She alleged that she was fed up of the activities of accused Mukesh Sharma but was unable to disclose the incident to anybody. It is also alleged that in the year 1996, the prosecutrix underwent two abortions in a private nursing home arranged by the accused Mukesh Sharma. Ultimately, on 28.08.2004, she left the service in the institute run by the accused Mukesh Sharma. On 12.09.2004, the accused Mukesh Sharma came to her house under the influence of liquor and disclosed about the sexual exploitation SC No. 04/08 3/32 State vs. Mukesh Sharma & Anr.
of the prosecutrix by him to her sister namely Kanchan. Her sister Kanchan asked her why the prosecutrix did not disclose about the incidents of rape and sexual molestation earlier, to which she said that she did not disclose this incident as it would have brought bad name to the family in the society. It is alleged that when the accused started making phone calls to her and threatening her family members, she decided to lodge a complaint in the police station. Hence, the complaint was made. This complaint by the prosecutrix led to the registration of the FIR and after completing the investigation, the charge sheet was filed for the offences U/s 376/384/506/328/120B IPC. The case was later on committed to the Sessions Court for trial.
2. On 02.02.2009, the charges were framed. The accused Mukesh Sharma was charged for the offence U/s 120B IPC and also U/s 376 IPC. The accused Suman Sharma was also charged for the offence U/s 120B IPC for facilitating the commission of rape and she was also charged for the offence U/s 328 IPC. The accused persons pleaded not guilty to the charge and claimed the trial.
3. The prosecution examined the witnesses to prove its case and first of all examined Inspector Ritu Raj as PW1, who is the IO of the case as well. He has deposed that on 19.10.2004, he was posted at PS SC No. 04/08 4/32 State vs. Mukesh Sharma & Anr.
Malviya Nagar when the complainant (prosecutrix) had come to the police post Seikh Sarai and gave her complaint to him. He forwarded the complaint to the Duty Officer through Ct. Sudhir for registration of the case vide his rukka Ex. PW1/A. He deposed that after the registration of the case, the investigation was handed over to him. He sent the prosecutrix to AIIMS hospital for medical examination and obtained the MLC. He prepared the site plan Ex. PW1/C at the instance of the complainant and arrested the accused persons.
PW2 is Dr. Mukta Aggarwal from AIIMS Hospital, who had proved the MLC of the prosecutrix Ex. PW2/B. She has deposed that the prosecutrix was examined by Dr. Aruna when she was brought by Ct. Sudhir for medical examination on 19.10.2004. PW2 Dr. Mukta Aggarwal has proved the MLC Ex. PW2/B as she had seen Dr. Aruna writing and signing during the course of her duty.
PW3 is the prosecutrix. Her statement will be discussed in detail in the later part of the judgment.
PW4 is HC Vipin Kumar, who was the Duty Officer on 19.10.2004 when the FIR Ex. PW4/A was registered.
PW5 is Ms. Kanchan, sister of the prosecutrix.
PW6 is HC Sudhir Singh, who had taken the rukka to the SC No. 04/08 5/32 State vs. Mukesh Sharma & Anr.
police station for registration of the FIR and he had accompanied the Investigating Officer during the investigation and had also taken the prosecutrix to AIIMS Hospital for her medical examination alongwith Ms. Kanchan (PW5). After medical examination of the prosecutrix, he handed over the MLC and Casualty Card to the Investigating Officer.
4. The statement of both the accused was recorded U/s 313 Cr.P.C and the incriminating evidence in the statement of witnesses was explained to them. The accused Mukesh Sharma has denied that in the year 1996, he had committed rape upon the prosecutrix while she was working in the office of Kartike Institute and the further allegations of commission of rape. He further took the plea that he was running the institute at Premises No. 446, Chirag Delhi. Since this premises had come to his share in the family settlement, he wanted to renovate the same and, therefore, temporarily had shifted Kartike Institute at 741, Chirag Delhi in the year 2004. The prosecutrix and her sister who were working with him were not happy with the shifting of Kartike Institute. He further said that the father of the prosecutrix had demanded about Rs. 1.5 lacs from him to start his own printing work. He further stated that he had offered him to purchase computers on loan for him and Rs. 20,000/30,000 as per his capacity but it was not acceptable to him. After this, the prosecutrix and her sister stopped coming to Kartike Institute at 741, Chirag Delhi and SC No. 04/08 6/32 State vs. Mukesh Sharma & Anr.
later on he was falsely implicated in this case at the instance of their father. The accused Suman Sharma has also denied all the evidence as false and stated that it is a false case planted upon her to defame their family.
5. In support of defence, the accused persons have examined one Kamlender Sharma as DW1. He has deposed that the accused Mukesh Sharma was running an institute in premises No. 446, Chirag Delhi alongwith the prosecutrix and her sister. He used to supply cold drinks, tea etc. in the institute as his general store/ tea shop was in front of premises No. 446, Chirag Delhi. He deposed that he had never seen any quarrel between Mukesh Sharma and the prosecutrix. Another witness examined in defence is DW2 Trilok Sharma. He deposed that accused Mukesh is his younger brother who had started one institute in the name of Kartike Institute in the outer room and veranda of premises No. 446, Chirag Delhi. He further deposed that the prosecutrix and her sister were working with Mukesh Sharma. He further deposed that a family partition had taken place in the year 2000 and the portion of the house No. 446, Chirag Delhi where the accused was running Kartike Institute came to his share alongwith their brother Rakesh. At that time, the accused Mukesh Sharma was residing at House No. 741, Chirag Delhi and he was asked to vacate House No. 741, Chirag Delhi in the year 2004 and to shift to House SC No. 04/08 7/32 State vs. Mukesh Sharma & Anr.
No. 446, Chirag Delhi but the prosecutrix and her sister were not ready for this and this led to a quarrel between the accused Mukesh Sharma and them. He further deposed that there was dispute with regard to the accounts of the institute in the first week of October 2004 when the father of the prosecutrix had come to the institute and had a quarrel with accused Mukesh Sharma.
6. Another witness examined in defence is DW3 Subhash Sharma, who deposed that the Kartike Institute at premises No. 446, Chirag Delhi was just adjacent to his shop which he had started in the year 1996. He deposed that the institute was being operated by the prosecutrix and her sister and they used to purchase the stationary item from him for the institute. He deposed that he never noticed any unusual relation between prosecutrix and the accused Mukesh Sharma. He further deposed that in the year 2004, the accused and his brother wanted to divide plot No. 446, Chirag Delhi which was opposed by the prosecutrix on the ground that she was running Kartike Insitute on this land. He further deposed that in the year 2004, two police officials had come to his shop to make inquiry regarding the case and he further deposed that the prosecutrix used to claim that she was a partner of the institute and used to pay the bills of his shop. The accused has also examined one Prem Kumar Goswami as a defence witness. However, inadvertently he has SC No. 04/08 8/32 State vs. Mukesh Sharma & Anr.
also been given the number DW3. He had brought the record from the office of the SubRegistrar, NDMC with regard to the birth of a child born on 28.05.1996 with the parental address as 741, Chirag Delhi and the name of father as Mukesh and that of mother Suman. He had placed on record the copy of the original register vide Ex. DW3/A.
7. I have heard the arguments from Ld. Addl. Public Prosecutor for state and the Ld. Counsel for accused persons and perused the statement of prosecution witnesses carefully.
8. The Ld. Addl. Public Prosecutor for state had argued that the case of the prosecution is based on the statement of the prosecutrix. He argued that the law is very well settled that no corroboration is required to the statement of the prosecutrix and when the prosecutrix states that a rape has been committed and her statement is found convincing, then the Court has to believe her statement. He argued that no doubt there was considerable delay in lodging the complaint but there were genuine reasons as PW3 has stated in her statement that she was under fear and she also had the apprehension that the matter, if disclosed, will bring a bad name to her family. This pressure of social ostracism compelled the prosecutrix not to disclose the incident to anybody. However, when the accused started making effort to defame her by displaying the abortion papers in the locality and by abusing them from the terrace of his house, SC No. 04/08 9/32 State vs. Mukesh Sharma & Anr.
the prosecutrix gathered the courage to lodge the complaint. He further argued that PW5 Ms. Kanchan has supported the prosecution case to the extent that she was the first person to whom the prosecutrix has disclosed the incident of rape with her.
9. On the contrary, the Ld. Counsel for accused persons has argued that undoubtedly the statement of prosecutrix can be acted upon without corroboration but it must be reliable and credible statement. He further argued that the prosecutrix is an educated woman who has done her Diploma in Textile Designing from a Women Polytechnic in South Delhi. She had good relation with the accused since the year 1994 and prior to that because the greeting card of the New Year 1994 given by the prosecutrix to the accused would vouch for the fact that she was known to the accused prior to the year 1994 as well. He further submitted that the undue delay of more than eight and a half year in lodging the complaint has robbed the complainant of her spontaneity. He argued that the complaint is, however, full of concoction and is a creature of afterthought and a coloured version. He submitted that if the rape was committed in May 1996 as stated by her and she was taken by her wife coaccused Suman Sharma to her home, then the fact that the wife of the accused Mukesh Sharma was at the advance stage of pregnancy at that time makes it improbable. It was not possible for her to accompany the prosecutrix to SC No. 04/08 10/32 State vs. Mukesh Sharma & Anr.
her house after the incident. He submitted that the documents placed on record in defence have proved that the accused Suman Sharma was in advance stage of pregnancy in May 1996 and had delivered the child on 26.05.1996. He further submitted that the evidence of the prosecutrix would show that at that relevant time, she was not residing in Chirag Delhi but in Pushp Vihar, Saket, New Delhi. This fact further make the story improbable that the accused Suman Sharma had taken the prosecutrix to her house after the incident. He further argued that the prosecutrix and PW5 Ms. Kanchan had given different version. While PW3 prosecutrix has deposed that her sister had joined the Institute in the year 2002 but PW5 Ms. Kanchan had admitted that she had joined the Institute in the year 1997. It is highly improbable that if the prosecutrix has been subjected to ghastly act of rape by the accused Mukesh Sharma number of times and had ravished her, she would bring her sister as well to the Institute of the accused Mukesh Sharma to join as a teacher. Thus, the Ld. Counsel for accused had argued that the prosecution case is highly improbable. The statement of the prosecutrix does not inspire confidence and the defence witnesses examined by the accused support the defence taken by the accused in his statement U/s 313 Cr.P.C and the chances of false implication in these facts cannot be ruled out.
10. The entire case of prosecution is based on the statement of the SC No. 04/08 11/32 State vs. Mukesh Sharma & Anr.
prosecutrix. There is no medical evidence to support the statement of the prosecutrix, as the medical examination of the prosecutrix was done much after the incident of alleged rape. Does the law require corroboration to statement of the prosecution? What is evidential value of the solitary statement of the prosecutrix? These are the crucial questions, the answer to which shall decide the fate of the case.
The law is very clear in this regard that the statement of the prosecutrix can be relied upon even in the absence of the corroborative material. In the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain (1990)1 SCC 550 the Hon'ble Supreme Court has dealt with such a situation and it was held that: "A prosecutrix of a sex offence cannot be put on par with accomplice. She is infact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence."
SC No. 04/08 12/32
State vs. Mukesh Sharma & Anr.
It was further observed: "If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to section 114 which requires it to look for corroboration."
It was further observed: "If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
Similar view has been expressed by the Hon'ble Supreme court in the case of State of Rajasthan Vs. N.K. (2000) 5 SCC 30. It was held that: "It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted SC No. 04/08 13/32 State vs. Mukesh Sharma & Anr.
without corroboration in material particulars." Similarly in Rafiq Vs. State of UP (1980) 4 SCC 262 it was observed as under: "Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances."
11. These judicial pronouncements leave no room for doubt that if the statement of the prosecutrix inspire confidence and found probable and reliable there is no need to insist upon any corroboration to the statement of the prosecutrix.
12. The solitary statement of the prosecutrix can be basis for conviction of the accused. However, the test remain the same that the prosecutrix must be worthy of credence and reliable. Some of the judgments of the Hon'ble Supreme Court provide guidance in this regard. In Sudhansu Sekhar Sahoo Vs. State of Orissa MANU/SC/1184/2002 it was observed that: "It was true that the sole testimony of a victim of a sexual offence can be a basis for conviction provided it is safe, reliable and worthy of SC No. 04/08 14/32 State vs. Mukesh Sharma & Anr.
acceptance"
It was further observed: "However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that the evidence of the victim may be supported by such corroborative material."
In Sadashiv Ramarao Hadbe Vs. State of Mahrashtra MANU/SC/0607/2006, it was held that: "If version given by the prosecutrix was unsupported by any medical evidence or whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrixCourts should be extremely careful in accepting the sole testimony of the prosecutrix when entire case was improbable and unlikely to happen."
In the case of Naravan @ Naran Vs. State of Rajasthan SC No. 04/08 15/32 State vs. Mukesh Sharma & Anr.
MANU/SC/7284/2007, the Hon'ble Supreme Court declined to accept the statement of the prosecutrix as it found the statement of the prosecutrix too artificial for acceptance. Although, it was of the view that if the evidence of the prosecutrix is accepted that would be sufficient to establish the charge against the accused.
13. The statement of the prosecutrix and the witnesses on the record is to be considered in the light of the law which has been mentioned above. There cannot be any doubt about the settled position of law that the statement of the prosecutrix itself is sufficient to prove the allegation of rape. The reason behind this acceptance of her statement without corroboration are many. In the case of B.B. Hirje Bai vs. State AIR 1983 SC 753, the Hon'ble Supreme Court dealt with this issue and observed that rarely will a girl or woman in India make false allegation of sexual assault. In the Indian society where the fear of being ostracized by the society or being looked down by even the family members and the relatives always looms large on a prosecutrix and a prosecutrix when come out of this fear and explain her trauma, then the law has to respect her version. The court when evaluating evidence has to remain alive to the fact that a self respecting woman would hardly come forward in court just to make a statement against a person which is more humiliating to SC No. 04/08 16/32 State vs. Mukesh Sharma & Anr.
herself and her honour. The acceptance of the statement of the prosecutrix by the court is based on the principle that no self respecting woman would make this kind of allegation falsely as it affects her honour and the reputation in the society.
14. But at the same time, a word of caution was given by the Hon'ble Supreme Court in the case of Radhu vs. State of Madhya Pradesh AIR 2007 SC (Suppl.) 847 and it was observed that if the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or unimaginable. It was further observed "the court should, at the same time, bear in mind that false charges of rape are not uncommon, there have also been rare incidents where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or to get rid of financial liability. Whether there was rape or not, would depend ultimately on the facts and circumstances of each case."
15. Now coming to the facts of the present case, admittedly the complaint has been made after more than eight years of the incident. This SC No. 04/08 17/32 State vs. Mukesh Sharma & Anr.
long gap or delay in lodging the complaint of rape by the prosecutrix has put the court on guard. The delay by itself is not a ground to disbelieve the statement of the prosecutrix but the totality of the evidence has to be considered if the delay in lodging the report adversely affect the case of the prosecution. In State of Rajasthan Vs. N.K. AIR 2000 SC 1812 it was held : "A mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution."
When there is undue delay in lodging the complaint without there being a justified cause for such a delay, it definitely contributes to the doubt in the prosecution case. No doubt a delayed complaint can have many reasons but the reason has to be explained by the prosecutrix. When appreciating the statement of the prosecutrix (PW3), the court will look into the reasons for the delay.
16. Here a reference to the statement of the prosecutrix (PW3) is required. She has deposed that she was residing at 776C, Chirag Delhi SC No. 04/08 18/32 State vs. Mukesh Sharma & Anr.
since 1996 till 2007. She was doing a course in textile designing from Women Polytechnics, South Extension, New Delhi and the accused was running an export house in the name and style of Kartike Fashion at Khirki Extention, New Delhi. She had joined the Kartike Fashion as an Apprentice in the year 1994. In the year 1995, accused opened a textile designing and coaching institute at his house in Chirag Delhi in the name and style of Kartike Institute, which the prosecutrix had joined as a Textile Designer at a salary of Rs. 2,000/ per month. After some time, the small children started coming to institute to learn drawing and painting and a Play School was also started in the same premises. The prosecutrix (PW3) used to look after the said play school. She deposed that in the 7th or 8th month in the year 1996 when she was preparing a screen (for block printing) around 1.00 or 2.00 pm in a room situated in the Kartike Institute, the accused came under the influence of liquor from backside and caught her shoulders. When she questioned him, he pushed her and the screen table hit her on her back. She started shouting when the accused hit his head on her nose and then committed rape upon her. After the act, he threated her and stated that she will have to stay with him only. The accused did not allow her to come out. She was bleeding at that time. After about 2025 minutes, he called his wife Suman (accused) through one Pappi. Accused Suman was told about the incident and she pacified SC No. 04/08 19/32 State vs. Mukesh Sharma & Anr.
the prosecutrix and asked her not to disclose the incident to anybody. She took her to her house and on the way told her that she should tell her mother that she had received an injury on her nose due to hitting on the door.
17. Next day, she was not willing to come to the institute. The accused Suman called her to her house. The accused Mukesh Sharma also said that he had already taken fees from the students and her assitance is required for running the institute. He further said that they have already gone too far now and he cannot leave her and since his wife has no objection, she should also not have any objection. He also said that if her parents came to know about the incident whether they will accept her and, thus, she became afraid and started going to institute out of fear and she continued to work in the institute due to a fear of bad name of the family. The accused whenever got a chance used to sexually assault her and rape in the institute. She became pregnant in the year 1997 and the accused got the abortion done. In the year 1999, she had again got an abortion and this time, the accused Suman accompanied her to hospital for abortion.
18. She further deposed that prior to the year 1999, the accused Suman offered her a glass of juice while she was working in the institute. After drinking the same, she became semiunconscious. When she regained consciousness, she found that accused had committed rape upon SC No. 04/08 20/32 State vs. Mukesh Sharma & Anr.
her, after the accused Suman had left the room by closing the door and putting the latch from outside. She deposed that from year 1996 to 2002, she had been subjected to rape off and on. Whenever she used to object, the accused used to physically assault her.
19. She further deposed that her sister Kanchan (PW5) started teaching in the institute in the year 2004 at the instance of the accused Mukesh Sharma and Suman. In the month of May 2004, her sister told accused Mukesh Sharma that they are looking for a marriage proposal for the prosecutrix. Then the accused who was under the influence of liquor informed Kanchan (PW5) about the abortions suffered by the prosecutrix and later on prosecutrix narrated her story to her sister. She alongwith her sister stopped visiting the institute. The accused started harassing her by climbing on the terrace of the flat in front of her house and waving her abortion papers towards their house. At that stage, the prosecutrix explained and disclosed all the facts to her parents. On 19.10.2004, she alongwith her sister and father had gone to the police station and lodged the complaint Ex. PW3/A. PW5 Ms. Kanchan deposed that on 28.08.2004, she was present at Kartike Institute and she was talking to the accused Mukesh Sharma that they were looking for a suitable match for the prosecutrix when he told her that he has been committing rape on her sister since the year 1996. She confronted her sister about this fact and SC No. 04/08 21/32 State vs. Mukesh Sharma & Anr.
she disclosed all the facts to her. She further deposed that on 12.09.2004 at about 9.30 pm, the accused Mukesh Sharma came to their house in drunk condition and started shouting in loud voice that if because of them (the prosecutrix and her sister) the Institute is closed, he will disclose everything to the society. Thereafter, the prosecutrix made a complaint to the police.
20. The statement of these two witnesses PW3 and PW5 nowhere gives any explanation why the complaint was not made after the first incident of the year 1996 or the subsequent incidents of sexual assault and rape. The only explanation which has come is in the statement of PW3 prosecutrix when after the alleged incident, the accused Mukesh Sharma came to her and asked her to join the institute and she out of fear started going to the institute and continued to work in the institute due to fear of the bad name of the family. This explanation, however, is not found very satisfactory. She deposed that the accused had said to her that they have gone too far now and he cannot leave her and since his wife has no objection, she should also not have any objection. Now if the accused had uttered these words to the prosecutrix after the incident and she still went to join the institute on the very next day of the commission of offence, then in my considered view, this is no reasonable explanation of the delay in lodging the complaint. The proposal which the accused gave SC No. 04/08 22/32 State vs. Mukesh Sharma & Anr.
to the prosecutrix as per her own statement, cannot be accepted by any woman.
21. As regard the commission of rape for the first time, the prosecutrix has not given a consistent statement. In her complaint Ex. PW3/A, she has stated that the incident of rape took place in May 1996. In her statement in the court, she deposed that this incident took place in the 7th or the 8th month of the year 1996 and when cross examined by the Ld. Addl. Public Prosecutor, she again said that the rape took place in May 1996.
22. Now the case of the prosecution is that after the commission of rape, the accused had called coaccused Suman who had accompanied the prosecutrix to her residence. It was argued by the Ld. Counsel for accused that in the month of May 1996, the accused Suman had given birth to a child on 28.05.1996. He argued that it is highly improbable that a woman who is on the advanced stage of the pregnancy, would be accompanying the prosecutrix to her residence after such an incident. This argument is connected with the subsequent argument of the Ld. Defence Counsel that the prosecutrix is not coming out with the truth where she was residing in May 1996. In her statement, the prosecutrix (PW3) has stated that she was residing at House No. 776C, Chirag Delhi in the year 1996 and she was taken by the accused Suman to her house. SC No. 04/08 23/32
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When she was confronted with the Admission Form of her sister namely Rashmi in the Kartike Institute, she accepted that in the said document Ex. PW3/DB, the address was mentioned as that of Pushp Vihar, Saket. In the further cross examination, she admitted that the House No. 776C, Chirag Delhi was purchased by them in the year 1996 and prior to shifting to this house, they had stayed in a rented house for about one or two months and she further stated that she was induced by the accused to stay in Chirag Delhi in the year 1997 as she had to look after the school and she further said that she was a partner in the school. She further deposed in the cross examination that prior to that, they had stayed in Pushp Vihar as tenant. Now this statement of PW3 prosecutrix would show that in the year 1996, she was staying at Pushp Vihar, Saket and not Chirag Delhi. Therefore, this version of the prosecutrix that after the commission of rape in May 1996, she was taken to her house by the accused Suman who was in a very advanced stage of pregnancy at that time, sound very improbable and is not convincing. The fact that accused Suman was in advanced stage of pregnancy in May 1996 is proved by the document of birth placed on record by DW3 Prem Kumar Goswami, SubRegistrar, NDMC, Mandir Marg, New Delhi. He had brought the birth register containing the entry dated 15.06.1996 with regard to the birth of a child on 28.05.1996 with the parental address of 741, Chirag Delhi and this SC No. 04/08 24/32 State vs. Mukesh Sharma & Anr.
child was born to Mukesh and Suman. So, this version of the prosecutrix regarding the first incident of rape becomes doubtful in this manner.
23. The prosecutrix had deposed that the accused used to commit rape upon her as and when he used to get a chance. She further deposed that she was being blackmailed by the accused Mukesh Sharma after her abortion in the year 1997 by using the abortion papers. She further deposed that in the year 1999, the accused Suman had given her a drink, after taking which, she became halfunconscious and thereafter accused Mukesh Sharma committed rape upon her and accused Suman left the room after putting a latch from outside. Firstly, if the accused Mukesh Sharma was getting an opportunity to commit rape upon her off and on, then what was the need for him to use the abortion papers to blackmail her. Secondly, if the accused was able to commit rape upon the prosecutrix as and when he got the opportunity, what was the need for the accused Suman to make her unconscious and then enable her husband Mukesh Sharma (accused) to commit rape upon her. Moreover, it is highly improbable in our society to accept this that a woman would give an opportunity to her husband consciously and voluntarily and create the circumstances for him to commit rape upon a woman. This allegation against accused Suman Sharma cannot be digested.
24. It has come in the statement of the prosecutrix that her sister SC No. 04/08 25/32 State vs. Mukesh Sharma & Anr.
Kanchan (PW5) was also working in the institute and PW5 Kanchan has also accepted that she has been working in the Kartike Institute since 1996 till 2004 as a teacher. PW5 Ms. Kanchan had further deposed that due to the efforts by her sister i.e the prosecutrix and her own efforts, the institute had developed a high reputation in the area. She further deposed that three accounts in different names of the educational institute were opened in their partnership. She deposed that the institute was being run with the efforts of prosecutrix and herself and the accused Mukesh Sharma was only the Director. She further deposed that the prosecutrix was very close to her and used to share her sentiments. However from the year 1996 to 2004, she did not find anything abnormal with the prosecutrix nor she disclosed anything to her.
25. As stated above, the statement of a prosecutrix is sufficient to establish the case of the prosecution in rape cases, provided the statement of the prosecutrix is probable. When the prosecutrix was so much involved with the institute run by the accused Mukesh Sharma and she alongwith her sister claims to be the person who were practically running the institute and they have shared a very good relationship throughout this period with the accused and his family, then it appears very paradoxical that on the one hand, she was running an institute with the accused rather SC No. 04/08 26/32 State vs. Mukesh Sharma & Anr.
for the accused and having a very cordial relation with his family members to whom she has been giving greeting cards and gifts on the festivals and on the other hand, she claims that the accused Mukesh Sharma has been committing rape upon her and his wife accused Suman was also instrumental in the commission of rape by the accused. This situation which is emerging from the circumstances and the evidence on the record show the improbability of the prosecution case that the prosecutrix has been subjected to rape by the accused from the year 1996 to 2004.
26. The accused had given a defence that in the year 2004, he had a family settlement and in this family settlement, a portion of the house No. 446, Chirag Delhi came to his share where he was running the institute. He was shifting the institute to premises No. 741, Chirag Delhi where he was residing. He wanted to renovate the premises No. 446, Chirag Delhi which was not acceptable to the prosecutrix and her sister on the ground that he was making his house and will spend the money on the same. They were not happy on shifting of the Kartike Institute. Now this factum of the family settlement and the shifting of the institute from 446, Chirag Delhi to 741, Chirag Delhi has been admitted by the PW5 Ms. Kanchan in her cross examination. She has deposed that the accused (she refers to Mukesh) wanted to construct a new building in place of running SC No. 04/08 27/32 State vs. Mukesh Sharma & Anr.
building and shift the classes in the rest room of his house which was at a distance from the institute which was being run at 446, Chirag Delhi. She deposed that the house of the accused was bearing No. 741, Chirag Delhi. This statement further confirmed that the accused was intending to shift his institute from 446, Chirag Delhi to 741, Chirag Delhi and the possibility of falling out of the accused and the prosecutrix of their friendly, cordial and professional relationship over this issue of shifting of the institute cannot be ruled out outrightly.
27. The prosecution case is based on the statement of the prosecutrix (PW3) only but the facts and circumstances of the case are such that it will not be safe to place implicit reliance on the statement of the prosecutrix. The law is very well settled that fouler the crime the greater the degree of proof is required. The basic principle of criminal law that the onus lies on the prosecution to prove its case beyond reasonable doubt does not accept of any exception. The defence is not under a bounden duty to prove the defence plea nor the prosecution can rely on the weakness or falsity of the defence of the accused. In the present case, the motive for a false implication as propounded by the accused is of a very weak nature but at the same time, the evidence led by the prosecution is also not sufficient enough to point to the guilt of the accused beyond reasonable doubt. So far as the accused Suman is SC No. 04/08 28/32 State vs. Mukesh Sharma & Anr.
concerned, her implication in the case is not supported by any convincing evidence. Her involvement in facilitating the commission of rape on the basis of the statement of prosecutrix (PW3) cannot be accepted. Moreover, when the accused Mukesh Sharma had an opportunity to commit rape upon the prosecutrix as and when he desired, it sounds too contrived to be believed that he would need the assistance of his wife Suman Sharma to intoxicate the prosecutrix and then enable him to commit rape upon the prosecutrix. So far as the role of accused Suman Sharma assigned by the prosecutrix, is concerned, the conduct is highly improbable keeping in view the societal norms. Although such perversity in some rare cases cannot be ruled out but the evidence on the record does not persuade this Court to draw any inference of such a perversity in this case. If the accused Suman Sharma was in the knowledge of the act done by the accused Mukesh Sharma and she accepted such conduct, then there was no need for her to intoxicate the prosecutrix and then permit her husband to commit rape. Thus, the allegations against the accused Suman Sharma regarding the incident in which the prosecutrix alleged that she was intoxicated by giving her a glass of juice does not inspire much confidence. Therefore, she deserves an outright acquittal. Hence, accused Suman is acquitted of the charges U/s 120B/328 IPC. SC No. 04/08 29/32
State vs. Mukesh Sharma & Anr.
28. So far as the accused Mukesh Sharma is concerned, there are allegations of him committing rape upon the prosecutrix number of times but the facts and circumstances of the case do not categorically bring home his guilt. The law says that the accused is always entitled for a benefit of doubt when reasonable doubt creeps out of the evidence led by the prosecution. The prosecution in this case was unable to give any justified reason for the inordinate delay in filing of the complaint. The simple reason given by the prosecutrix that she was threatened by the accused Mukesh Sharma and she was afraid that if the fact of rape is made known, it will affect their reputation in the society, is not strong enough to justify surrender to the ghastly act of the accused Mukesh Sharma, if any, number of times during the span of eight years. The prosecutrix was a major at the time of the incident. She is an educated woman and it has come in the evidence that she had enjoyed a very friendly and cordial relation with the family of the accused throughout the period. If she was having this kind of relation with the accused and his family, then one cannot believe that she had been subjected to forceful sexual assault by the accused Mukesh Sharma number of times. Thus, the probability factor in this case is against the prosecutrix. In the case of Rajoo vs. State of M.P 2009 (1) Crimes 123 SC, the Hon'ble Supreme Court dealt SC No. 04/08 30/32 State vs. Mukesh Sharma & Anr.
with the case of State of Punjab vs. Gurmit Singh & Ors. (1996) 2 SCC 384 and Ranjit Hazarika vs. State of Assam (1998) 8 SCC 635 and observed: " The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. "
SC No. 04/08 31/32
State vs. Mukesh Sharma & Anr.
29. The evidence of the prosecution, therefore, is not sufficient enough to prove the case against the accused Mukesh Sharma beyond reasonable doubt. On the one hand, there is a statement of prosecutrix (PW3) who has alleged the commission of rape upon her during the period spanning from 1996 to 2002. On the other hand, there are factors like inordinate delay in the lodging of the complaint and a very family, cordial and friendly relation between the accused and the prosecutrix and the families of both during this period. These two contradictory things are difficult to be reconciled. So, the accused Mukesh Sharma is being acquitted of the charges U/s 120B/376 IPC by giving him a benefit of doubt. Both the accused are on bail. Their bail bond stands cancelled and sureties stand discharged. Documents of the sureties, if any, be returned to them on proper receipt and identification.
Announced in open court (AJAY KUMAR KUHAR)
th
Dated: 14 September, 2011 Addl. Sessions Judge02: South
East Saket Court: New Delhi
SC No. 04/08 32/32