Delhi District Court
State vs Accused on 16 January, 2014
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0270272008 SC NO. 159/13 Date of Institution : 03.09.2008 FIR No.619/07 Date of Argument : 08.01.2014 PS Welcome Date of Order : 16.01.2014 U/S 366/376/392/506 IPC State Versus Accused Dhruv Gupta, S/o Sunil Gupta, R/o 3072 CA/3, Gali No. 1, Ranjeev Nagar, Patel Nagar,Delhi. JUDGMENT
The facts of the prosecution case in brief are that on 14.08.2007, ______x________ W/o ______y_____ aged about 24 years R/o House No. ____________________z__________________ lodged a report at PS Welcome alleging that she was residing at the above mentioned address with her husband for the last four years. About 8-10 days ago she went to her parent's house at ____________________z-1_________________________. On previous day at about 6:00 p.m. she received a call on her mobile No. ___z-2____ from telephone No. 011-65798775 and the caller introduced her as Dhruv, herein after referred as the accused. The accused asked SC No. 159/3 State vs. Dhruv Gupta Page 1 of 25 her to come at Patel Nagar Metro Station. The accused also told her that he was in love with her and wanted to marry her and if she would not come he would commit suicide. She was convinced with her false talks and without telling anyone at her house, she came to Metro Station Patel Nagar in a TSR. As she never saw the accused, so she called that person by using PCO booth on a number which was displayed on her mobile. But that call could not be materialized. After some time a boy came near her and asked her if she was ___x_. She replied in affirmative then he introduced to her as Dhruv. Then, accused took her in a hotel in China Market, Karol Bagh on his bike. He took a room in that hotel. On the way, she was told that he would take two rooms in Hotel and they will leave separately and they would marry on the next day in a temple. Believing his talks she sat in a room. In the night, the accused ordered for bear. He made her to drink bear and to smoke cigarette forcibly. Before offering the bear, the accused took the bear bottle in the bathroom and that was offered to her. After drinking the bear, she was intoxicated. The accused made her to give him two gold bangles, one gold chain, one gold ring, weighing about 14-15 gms by putting her in fear. The accused committed rape on her forcibly during the night against her wishes. The accused took her in a Gurudwara in the morning and about 3:00 p.m., at the SC No. 159/3 State vs. Dhruv Gupta Page 2 of 25 house of one of his friends namely Kamal, and thereafter to his house situated at Patel Nagar, where his grand mother told her that accused was a bad boy and that she should go to her house. The accused on the pretext to arrange a auto took her in a park and did not allow her to come from there. He also threatened her that he could kill her if she would leave that place. However, on finding an opportunity, she managed to escape by using TSR and then she informed her husband on a telephone and also apologized to him. She came to Shahdara Metro Station where she disclosed all the incident to her husband, who brought her to PS Welcome. On the basis of her statement, FIR No. 619/2007 U/s 366/376/392/506 IPC at PS Welcome was recorded. Prosecutrix was taken to GTB hospital, where she was medically examined and her MLC was prepared. The IO inspected the place of occurrence on 15.08.2007 and prepared a site plan. On the same day, the accused was arrested and his arrest memo and personal search memo were prepared. He was also taken to GTB hospital, where he was got medically examined. In the MLC, it was opined by the doctor that there was nothing to suggest that the person was not capable to perform sexual intercourse. His samples were taken and those were seized after preparation of seizure memo. Initially samples were deposited in Malkhana and then SC No. 159/3 State vs. Dhruv Gupta Page 3 of 25 those were sent to FSL. The report from FSL was obtained. The police after completion of investigation filed a charge- sheet against the accused for his trial for the offences punishable under Sections 366/376 IPC.
2. Ld. Metropolitan Magistrate took cognizance of the offence against the accused and after supplying of copies of charge-sheet, etc., committed this case to the court of Sessions and the case was assigned to Sh. Mahavir Singhal, Ld. ASJ, Karkardooma Courts, Delhi.
3. Vide order dated 08.04.2009, the court opined that there was prima facie sufficient material on record for framing of charge against accused Dhruv Gupta for the offences punishable u/s 366/376/392/506 IPC. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular langauge. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Sh. Vinod Kumar, Manager Hotel Maurya Heritage, Ms. Bharti Sehgal, Owner of Hotel Maurya Heritage, the prosecutrix ______x________ as PW3, Woman Constable Geeta as PW4; ASI Surender Pal as PW5; HC Vinod Kumar as PW6; HC Krishna Pal as PW7;
SC No. 159/3 State vs. Dhruv Gupta Page 4 of 255. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution in order to prove its case against the accused further examined Constable Pathan Rashid as PW8; ASI Onkar Dutt as PW9; Dr. Sandhya Jain, Assistant Professor GTB hospital as PW10; SI Jagbir Singh as PW11
7. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. The accused admitted that on receiving of phone call of the prosecutrix from PCO he went to Patel Nagar Metro Station and meet her and that the Prosecutrix was not previously known to her and that he was arrested by the police and his arrest memo and personal search memo were prepared and that he was medically examined and his MLC Ex. C1 was prepared and the doctor opined that there was nothing to suggest that he was not capable to perform sexual intercourse and that the samples were taken and those were seized after preparation of seizure memo and that the prosecutrix had correctly identified him. He denied SC No. 159/3 State vs. Dhruv Gupta Page 5 of 25 rest of the evidence and pleaded that telephone No. 65798775 was land line number of his house but he did not call the prosecutrix and it was the prosecutrix, who used to call him on that number. The prosecutrix made a telephone call which was initially picked up by his Grand Mother and later on it was answered by him and it was conveyed to him by the prosecutrix that she was standing at Patel Nagar, Metro Station and that he should meet her immediately failing which she would commit suicide by jumping in front of moving vehicle. He went to the Patel Nagar, Metro Station and took the prosecutrix to a hotel as she was repeatedly telling him that she had come after leaving her husband and that she would commit suicide. He arranged a room for her and returned to his house. He did not say to the prosecutrix that he would marry her. He did not see any jewellery with the prosecutrix. The name of that hotel was Morya Haritage, Channa Market, Karol Bagh. He submitted photocopy of his ID proof in the hotel. He pleaded that he knew ___x_ earlier as Ms. z-4__ Singh. She insisted him on 13.08.2007 that he should book room for her in the name of z-4__ Singh. He did not stay with her in the hotel. He did not commit any wrong with her. He wanted to convince her that she was a married woman and that he was unable to marry her and that she should join her husband and that in case she still wanted to marry SC No. 159/3 State vs. Dhruv Gupta Page 6 of 25 him, she should take divorce from her husband and then come. This was also conveyed to her by his grand mother. He was falsely implicated in this case as he refused to marry her as he was already a married woman.
8. In support of his defence, the accused examined Smt. Kamla Gupta as DW1.
9. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused and perused file.
10. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
11. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution SC No. 159/3 State vs. Dhruv Gupta Page 7 of 25 has to prove firstly, that sexual intercourse was committed with the prosecutrix; and secondly, that sexual intercourse was committed with her by accused forcibly against her will and without her consent.
12. In order to prove its case against the accused for the offence of robbery, punishable u/s 392 IPC, the prosecution has to prove firstly, that accused put the prosecutrix into fear and secondly, that thereafter he took her two gold bangles, one gold chain and one gold ring.
13. In order to prove its case against the accused for the offence of criminal intimidation, punishable u/s 506 IPC, the prosecution has to prove firstly, that accused gave threat to the prosecutrix and secondly, the threat was to cause death or grievous hurt, etc.
14. It has been argued on behalf of Ld. defence Counsel that the prosecutrix wanted to marry the accused without taking divorce from her husband and when he refused to do so, he was falsely implicated in the present case. He further argued that there are major contradictions in the testimonies of prosecution witnesses including prosecutrix and the accused is entitled to get benefit of doubt.
SC No. 159/3 State vs. Dhruv Gupta Page 8 of 2515. On the other hand, Ld. Additional Public Prosecutor argued that prosecution witnesses have proved its case beyond reasonable suspicion and doubt. Testimonies of prosecution witnesses are reliable and trustworthy and accused is liable to be convicted. She also argued that minor discrepancies, if any, may be ignored in view of the principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to SC No. 159/3 State vs. Dhruv Gupta Page 9 of 25 place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
16. Before scrutinizing the evidence to find out the contradictions, it would be appropriate to deal with the testimony of the prosecutrix.
17. PW3, the prosecutrix deposed that she was earlier living on rent along with her parents at __z-1__. Thereafter, her parents shifted to ____________z-3_________. She had come to live with her parents from her matrimonial home and was living with them for about 10/12 days. The accused present in the Court had been making telephone calls to her for one month prior to the incident, i.e. since 14.08.2007. He was saying her on telephone to meet him as he wanted to marry her. She was receiving telephone calls from his land line no. 65798775 on her mobile no. ___z-2____. On 13.08.2007, she was called by the accused over the phone to meet him at Patel Nagar Metro Station in the afternoon. He insisted her to meet him otherwise he would commit suicide. Thereafter, she hired an auto rickshaw and reached at the above said SC No. 159/3 State vs. Dhruv Gupta Page 10 of 25 metro station. Since she was not knowing the accused by face, she called him from PCO to his number but the said number could not be reached. Subsequently, accused came to her and enquired whether she was ___x_. She replied in affirmative. The accused introduced himself to her as Dhruv and took her to one nearby hotel on a cycle rickshaw. He told her that both of them would stay in the hotel in the night and they would marry in the next morning. He also told her that there was only one room available and he had taken one room for both of them. He asked for beer from waiter and started consuming and also forced her to take. He went to bathroom for opening the bottle and persuaded her to drink saying that it was neither whiskey nor alcohol. She consumed the same and after consuming the same, she became intoxicated and while she was under the influence of beer, the accused forcibly made physical relations with her against her wishes and committed sexual intercourse. She could not say as to how many times he indulged in sexual intercourse with her as she was not in her senses. On the next morning, a friend of accused namely Kamal came to the hotel and then accused took her to his house where his grandmother was living. She advised her that the accused was not having good character and that she should go back to her house. Thereafter, accused took her to a park SC No. 159/3 State vs. Dhruv Gupta Page 11 of 25 near his house. There were 3/4 boys in the park, who were friends of accused Dhruv. He threatened her in their presence to kill her in case she would go back to her house. She was not permitted to go back to her house. The accused also took from her, her jewellery consisting of gold chain, two gold bangles, one ring which she was wearing. She managed to escape by taking auto and informed her husband. She and her husband went to PS Welcome to lodge a report about the incident. Police recorded her statement Ex. PW3/A and she signed it at point A. She was taken to a hospital where she was medically examined by a Doctor. Her husband, brother and police were also with her. Doctor also took her clothes, i.e. suit and undergarments. She accompanied the police to the house of the accused from where the accused was arrested and his arrest memo Ex. PW3/B and personal search memo Ex. PW3/C were prepared and she signed those documents at point A. Police took her to the hotel and at her instance site plan Ex. PW3/D bearing her signature at point A was prepared. PW3 identified in the Court her kurti as Ex. P-1, blouse as Ex. P-2, trouser as Ex. P-3 and chunni as Ex P-4.
18. On scrutinizing the evidence on record in the light of the arguments made by Additional Public Prosecutor and Ld. Defence Counsel, I find contradictions SC No. 159/3 State vs. Dhruv Gupta Page 12 of 25 on the following points:
Name of the Prosecutrix
19. Prosecutrix, PW3 in her statement Ex. PW3/A mentioned her name as ___x_________. In her examination in chief, PW3 told her name as ______x________. In cross examination, she deposed that she was known only by one name, i.e. ___x_. Accused used to know her with another name z-4__ also. She had told him her name as z-4__. PW1 and PW2 also deposed that the girl who made entry in their register of Hotel Maurya regarding arrival and departure had disclosed her name as z-4____. Thus, there is inconsistency in the name of the prosecutrix.
Acquaintance of the prosecutrix and the accused
20. PW3 in her statement made before the police Ex. PW3/A mentioned that she had been getting telephone calls on her mobile number ___z-2____ from land line number 011 65798775 for the last one month. In her examination in chief, PW3 stated before the Court that accused present in the Court was making telephone call to him about one month prior to the incident. In cross examination, she stated that she knew accused Dhruv for SC No. 159/3 State vs. Dhruv Gupta Page 13 of 25 the last about 7/8 months from the date of incident. Thus, there is inconsistency on the length of period of acquaintance between the accused and the prosecutrix.
Removal/extortion of gold jewellery
21. PW3 in her statement made before the police Ex. PW3/A mentioned that accused took her in a room of hotel and made her to drink beer and thereafter, she became intoxicated. Accused made her to give him after threatening her, her two gold bangles, one gold chain and a gold ring weighing about 14/15 gms. In her examination in chief, PW3 on this aspect deposed that on next day, accused took her to a park near his house. 3/4 boys were present in the park who were the friends of accused Dhruv. He threatened her in their presence to kill her in case she would go back to her house. She was not permitted to go back to her house. The accused also took from her, her jewellery consisting of gold chain, two gold bangles, one ring which she was wearing. She managed to escape by taking auto and informed her husband. In cross examination, she stated that she was taken to Karol Bagh market by the accused from Metro Station. He took her to a jewellery shop to sell her gold ornaments as accused had told her that he was not having money with him. She SC No. 159/3 State vs. Dhruv Gupta Page 14 of 25 received rupees 10,000/- in lieu of gold sold in the market. They were strolling in the market for about one and one and half hour. Thus, there is also contradiction on the point of removal or extortion of the gold jewellery.
Abortion prior to the incident
22. Ex. PW3/A is silent about abortion. In cross examination, PW3 deposed that she did not have any discussion with her husband regarding abortion as she did not want to have a child. She was not aborted during those days. She was medically examined by the doctor in connection with the present case. She did not state to the doctor that she had spontaneous abortion after fall from the staircase one week back or DEC was done in private hospital. She did not tell to the doctor that she was continuously bleeding for 3/4 days after abortion and bleeding was stopped three days back from the date of incident. She did not tell to the doctor that she had already changed the clothes. She admitted that doctor did not find any external injury on her perineum. She was called by the doctor for review at Gynecology OPD Department and she had gone there. She did not have the OPD Card and she did not give it to the police at any time during investigation. She denied the suggestion that she was not SC No. 159/3 State vs. Dhruv Gupta Page 15 of 25 co-operative with the doctor at the time of her medical examination. PW10, proved MLC of the prosecutrix as Ex. PW10/A. It has been mentioned in the MLC that patient had spontaneous abortion after fall from stairs one week back. DEC was done in private hospital. There was bleeding for next 3/4 days after the abortion and it was stopped three days back. Patient had already changed her clothes. There was no mark of external injury on perineum. The patient was uncooperative and she was not allowing her proper examination. Thus, there are also contradictions on the point of abortion and related aspects.
Seizure of clothes of the prosecutrix
23. PW3 on this aspect deposed that doctor had taken her clothes, i.e. suit and undergarments. Later on, she changed her version and stated that she did not remember whether the clothes were taken by the doctor or by the police. It has been mentioned in the MLC Ex. PW10/A that patient had already changed her clothes. There is no mention of taking of clothes of the prosecutrix by the doctor. PW11 IO deposed on this aspect that on 15.08.2007, victim produced her one kurti, one blouse and one salwar pajama type of blue colour and one chunni of green colour which she was wearing at the time of SC No. 159/3 State vs. Dhruv Gupta Page 16 of 25 incident. She kept the aforesaid clothes in polythene and seized the same vide Ex. PW3/E. Thus, there is also inconsistency in the statement of the prosecutrix on the aspect of seizure of her clothes.
24. It has to be considered whether above mentioned contradictions are minor or major? I am of the view that these contradictions are major in nature and these have shaken the very root of the prosecution case.
25. On considering the rival contentions of Additional Public Prosecutor for the state, Ld. defence Counsel for the accused and analyzing the evidence on record, I come to the conclusion that prosecution has failed to prove its case against the accused beyond any reasonable suspicion and shadow of doubt, that accused committed the alleged offences. The reasons which support my decision are firstly, that testimony of the prosecutrix as discussed herein above is found inconsistent, contradictory, unreliable and untrustworthy and it has created reasonable suspicion and shadow of doubt in the truthfulness of the present case.
26. My decision finds support by principles of law laid down in case Narvan @ Naran Vs. State of Rajasthan SC No. 159/3 State vs. Dhruv Gupta Page 17 of 25 2007 (2) JCC 1202 wherein the Apex Court observed that evidence of the prosecutrix, if acceptable, is sufficient to establish charge of rape against the accused but where her evidence is so artificial and full of material contradictions, same cannot be accepted and conviction based thereon cannot be sustained.
27. My decision also finds support by principles of law laid down in case Narender Kumar Vs State (NCT of Delhi) 2012 (5) LRC, 137 (SC) wherein the Apex Court observed that:
"17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence."
28. Secondly, the evidence on record has established that the prosecutrix went to the Patel Nagar Metro Station herself. She accompanied the accused on her own to the hotel and stayed there with her own consent as admitted by her in her cross examination. This has also created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
SC No. 159/3 State vs. Dhruv Gupta Page 18 of 2529. My decision in this regard finds support by principles of law laid down in case Naresh Kumar Vs State (NCT of Delhi) 2012 (7) LRC wherein the Delhi High Court observed that where prosecutrix had willfully accompanied with the accused and had stayed with him on her free will and was consenting party. The offences under Section 376 or 363 IPC are not made out.
30. Thirdly, the prosecution evidence could not achieve the standard of proving its case as laid down in a case In case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
31. Fourthly, the conduct of the prosecutrix has been found as unnatural. For example, she stated that she SC No. 159/3 State vs. Dhruv Gupta Page 19 of 25 went to Kirti Nagar Metro Station. The accused, who was not even seen by her, asked her to come there failing which he would committed suicide. As stated by PW3, she was called in the afternoon but she arrived there at about 6 or 7 PM. The accused was not found there. She herself made a telephone call to the accused in order to call him at the metro station. She stated that accused took her to the hotel on the assurance that he would marry her on next day. It is not in dispute that prosecutrix was a married woman. She did not have any dispute with her husband. Soon after the alleged occurrence, she firstly informed her husband on telephone and called her and went to the PS with him. It is not convincing that a married woman would accompany a stranger only on the assurance that he would marry her next day. She did not co-operate with the Doctor who wanted to examine her internally as established by observations made in MLC Ex. PW10/A and she also did not co-operate with the IO, who in cross examination stated that the victim did not co-operate and due to that reason, the case could not be investigated with regard to the selling of gold ornaments. The unnatural conduct discussed herein above has also created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
SC No. 159/3 State vs. Dhruv Gupta Page 20 of 2532. Fifthly, the testimony of the prosecutrix has not been supported by scientific and medical evidence. As discussed above, the prosecutrix did not co-operate with the doctor and did not allow the doctor to properly examine her internally. She was referred to gynecology department. The prosecutrix admitted that she went to gynecology department and she was examined but she did not hand over the relevant documents to the IO. She also failed to file the same in the Court. An adverse inference under Section 114 (g) of Evidence Act is drawn and it is presumed that that document was not favourable to the prosecutrix. Besides, in the FSL report, Ex. C-2, it has been mentioned that human semen was detected on the pajama having dirty stains. As mentioned above, the pajama was handed over by the prosecutrix on 15.08.2007, i.e. after one day from the date of occurrence. Admittedly, she was with her husband on previous night. In FSL result it has also been mentioned that there was no reaction about the grouping of the semen. Thus, it could not be established if the semen found on the pajama of the prosecutrix was of the accused or it was the semen of her husband? Thus, there is lack of scientific and medical evidence in the prosecution case. This has also created reasonable suspicion and shadow of doubt about the truthfulness of the prosecution case.
SC No. 159/3 State vs. Dhruv Gupta Page 21 of 2533. My decision in this regard finds support by principles of law down in case Chidda Ram v. State, VIII-1992(2) Crimes 1142, it was held by Delhi High Court that:
"In the absence of medical report of vaginal and cervical swabs it cannot be said that the petitioner committed sexual intercourse with the prosecutrix on the night of 28th May, 1975. Even otherwise the story given by the prosecutrix after being handed over by the police to her mother does not inspire confidence nor any credence can be attached to the same. Her version vary from stage to stage and from point to point. Therefore, no much reliance can be placed on the testimony of the prosecutrix particularly when there is no corroboration for the same."
34. Sixthly, the DW1, grand mother of the accused deposed that the prosecutrix came to her house on 14.08.2007 and she tried to make her understand that it was not possible for her to marry her grand son without divorcing her husband. The testimony of DW1 has also supported the defence version. The evidentary value of Defence Witness is equivalent to Prosecution Witness as held in a case, Pradeep Saini & Anr. v. State, 2010 IV AD (Delhi) 232, wherein the Delhi High Court observed that:
"51. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof has to be without any predilection or bias. No witness is entitled to get better treatment merely SC No. 159/3 State vs. Dhruv Gupta Page 22 of 25 because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed. As observed by Supreme Court in the decision reported as Dudh Nath Pandey Vs. State of UP AIR 1981 SC 911:-
".....Defence witnesses are entitled to equal treatment with those of the prosecution; and courts ought to overcome their traditional instinctive disbelief in defence witnesses......"
35. Seventhly, in the facts and circumstances of the present case coupled with the nature of evidence which have come on the record, I am of the view that accused is entitled to get benefit of doubt.
36. My decision finds support by a case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, wherein it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
37. Eightly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."SC No. 159/3 State vs. Dhruv Gupta Page 23 of 25
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
38. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused is given benefit of doubt as the prosecution has failed to prove its case against the accused beyond any reasonable suspicion and shadow of doubt.
CONCLUSION
39. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case against the accused Dhruv beyond any reasonable suspicion and shadow of doubt that he had committed offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC or offence of SC No. 159/3 State vs. Dhruv Gupta Page 24 of 25 rape punishable u/s 376 IPC or offence of robbery, punishable u/s 392 IPC or offence of criminal intimidation, punishable u/s 506 IPC. Resultantly, accused Dhruv Gupta is acquitted for the offences punishable u/s 366/376/392/506 IPC by giving him benefit of doubt.
40. However, in view of provisions of Section 437 A of the Code the accused is directed to furnish within a week bail bond/surety bond in the sum of Rs.20,000/- with one surety of like amount for the period of six months.
41. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the Open Court Dated: 16.01.2014 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No. 159/3 State vs. Dhruv Gupta Page 25 of 25