Delhi District Court
State vs Rajan on 17 April, 2013
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.02402R0329392011 SC NO. 110/13 Date of Institution :01.11.2011 FIR No.244/10 Date of Argument :08.04.2013 PS Nand Nagri Date of Order :17.04.2013 U/S 363/366/376 IPC State Versus Rajan S/o Nand Kishor R/o J-164, New Seelampur, Delhi. JUDGMENT
The facts in brief of the prosecution case are that a complaint was made by mother of the prosecutrix namely, --------X------- W/o -------Y-------, stating that --------- Z-----------, here in after referred to as the prosecutrix, aged 16 years had gone to attend marriage of her nephew on 30.11.2010 at about 12.30 noon at Nand Nagri, Delhi but she did not come back. She made her efforts to locate the prosecutrix but she could not be found. She doubted that accused Rajan who was residing in her neighbourhood kidnapped her daughter by enticing her. SI Iqbal Ahmed got the FIR registered and during the investigation, he collected the documents, such as, age proof, education certificate, etc. of the prosecutrix. The message was flashed to different authorities and raids were conducted at SC No.110/13 State vs. Rajan Page 1 of 23 possible hide-outs of the accused Rajan. IO came to know that the prosecutrix had moved an application for surrender in the court of Ld. M.M. on 25.12.2010 but due to unknown reasons, the surrender was made at Police Station Anand Vihar, where-from the prosecutrix was taken in safe custody and her statement was recorded by the IO. The prosecutrix stated that she was having love-affair with the accused for last two years and they had been meeting and were in contact over phone. On 30.11.2010 she had gone to attend the marriage of her maternal uncle and accused Rajan Bhati also arrived there and after enticing her for marriage, the accused took her to Mehndipur Balaji, where, they stayed for about 20 days and came back to Delhi on 21.12.2010. Accused made sexual relations with her. On arrival at Anand Vihar, when she saw the police party, she ran and called the police who dropped her at P.S. Anand Vihar from where she was shifted to P.S. Nand Nagri, Delhi. The certificate dated 08.03.2011 issued by Vice Principal of C.R. Dass Govt. Sarvodaya Kanya Vidhyala, New Seelampur, Delhi regarding age of the prosecutrix, showing her date of birth as 07.09.1994 was collected. The prosecutrix was taken to GTB Hospital where her medical examination was conducted and MLC was prepared. Doctors also obtained the undergarments and after sealing the same handed over the same to Ct. Meenakshi who had SC No.110/13 State vs. Rajan Page 2 of 23 taken the prosecutrix to the hospital for her medical examination. Constable handed over the same to the IO and IO vide seizure memo took the same into possession. Accused was arrested on 25.12.2010. His arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. He was also taken to GTB Hospital by ASI Iqbal Singh where his medical examination was conducted by doctor. His MLC was prepared. Samples of his blood, semen, etc. and his underwear were taken into possession and these were handed over to SI Iqbal Ahmad, who seized the same vide seizure memo and deposited in police Malkhana in sealed condition and those were sent to FSL and report of FSL was collected. IO recorded statements of witnesses and after completion of investigation filed a charge sheet against the accused for his trial for the offences punishable u/s 363/366/376 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case was assigned to Sh. Gurdeep Singh, Ld. ASJ, Karkardooma Courts, Delhi.
3. Vide order dated 18.01.2012 the court opined SC No.110/13 State vs. Rajan Page 3 of 23 that prima facie case for framing of charge against the accused for the offences punishable u/s 363/366/376 IPC was made out. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined prosecutrix as PW1; HC Tooki Ram as PW2; W/Ct. Veenakshi as PW3; Smt. Nano, mother of prosecutrix as PW4; Ct. Dinesh Kumar as PW5; Ct. Rakesh Kumar as PW6; Ct. Ashok Kumar as PW7; and HC Narender as PW8.
5. 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 also examined Ms. Sarein Bala, Vice Principal, C.R. Dass Govt. Sarvodaya Kanya Vidyalaya, New Seelampur as PW9; HC Manoj Kumar as PW10; Retired SI Iqbal Ahmed as PW11; Dr. Shikha Sharma, SR (Obs. & Gyne), GTB Hospital as PW12; and Dr. Sushma, Medical Officer, GTB Hospital as PW 13.
SC No.110/13 State vs. Rajan Page 4 of 237. After closing of prosecution evidence statement of the accused u/s 313 of the Code of Criminal Procedure, here in after referred to as the Code, was recorded. All the material and incriminating evidence was put to him. Accused admitted that the prosecutrix was studying in C.R.Dass SKV No. 1 School and she was his friend and they used to meet each other and that he had given an application for surrender and he was interrogated and his disclosure statement was recorded and that he was taken to GTB Hospital where his medical examination was conducted and that witnesses correctly identified him. He did not dispute the clothes of the prosecutrix and FSL report. He pleaded that prosecutrix repeatedly used to telephone him and made request not to break relationship otherwise she would commit suicide. She herself took him to Balaji where they stayed for 2-3 days. He denied rest of the evidence and pleaded that he did not commit any wrong and he was innocent.
8. In support of his defence, accused examined examined Sh. Laxmi Chand Bhati his grandfather as DW1.
9. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
SC No.110/13 State vs. Rajan Page 5 of 2310. In order to prove its case that accused committed an offence u/s Section 363 IPC, prosecution has to prove firstly, that accused took or enticed the prosecutrix out of keeping of her lawful guardian; secondly, that the prosecutrix was a minor that is under 18 years of age; and thirdly, that it was done by the accused without the consent of her guardian.
11. 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 abducted by the accused, i.e., accused either by force compelled or by any deceitful means induced the prosecutrix to go from her place and secondly, the prosecutrix was abducted 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.
12. In order to prove its case for the offence of rape, punishable u/s 376 IPC, the prosecution has to prove firstly that accused committed sexual intercourse with the prosecutrix and secondly, sexual intercourse was SC No.110/13 State vs. Rajan Page 6 of 23 committed against her will or under false pretext to marry her.
Whether the prosecutrix was minor on the date of incident
13. It has been argued on behalf of Ld. defence Counsel that prosecution has failed to prove the correct age of the prosecutrix. The prosecution has also failed to produce birth certificate issued by Municipal Corporation of Delhi or any other document except (Transfer Certificate) to prove the correct age of the prosecutrix. It has been submitted that benefit of it should be given to the accused.
14. In support of his arguments Ld. Defence Counsel relied on a case Alamelu & Anr. v. State Rep. by Inspector of Police, 2011(1) JCC 239, wherein the Apex Court observed that:
"38. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much SC No.110/13 State vs. Rajan Page 7 of 23 evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. We may notice here that PW1 was examined in the Court on 9th August, 1999. In his evidence, he made no reference to the transfer certificate (Ex.PI6). He did not mention her age or date of birth. PW2 was also examined on 9th August, 1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 Cr.P.C. seeking permission to produce the transfer certificate and to recall PW2. This petition was allowed. She was actually recalled and her examination was continued on 26th April, 2000. The judgment was delivered on 28th April, 2000. In her cross- examination, she had merely stated that she had signed on the transfer certificate, Ex.P16 issued by the School and accordingly her date of birth noticed as 15th June, 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouch-safe for the truth of the facts stated in the transfer certificate."
15. Ld. Defence Counsel further relied on a case Arshad v. State of Haryana, 2011(1) CCC 536 (P&H), wherein Punjab & Haryana High Court observed that:
"9. It has appeared in the statement of PW1, the prosecutrix, that her date of birth was entered in the register of Chowkidar of the village. However, the prosecution did not take any steps to produce the register of the Chowkidar to show that the prosecutrix was less than 16 years of age on the date of the occurrence. Though in the record pertaining to the Government Primary School, Gohana, the date of birth of the SC No.110/13 State vs. Rajan Page 8 of 23 prosecutrix was mentioned as 10.03.1987 yet PW15 Siri Ram, teacher of the said school, during his cross- examination stated that no birth certificate was attached with the admission form nor also any affidavit or any other proof regarding the date of birth of the prosecutrix. Under these circumstances, it cannot be said that the date of birth of the prosecutrix recorded in the school record as 10.03.1987 was correct. There is a general tendency with the parents to mention less age of their wards while getting them admitted in the schools. Therefore, no implicit reliance can be placed upon the date of birth of the prosecutrix as mentioned in the school record.
10. In view of the above, the radiological examination of the prosecutrix assumes significance as per which the prosecutrix was 16 to 17 years of age on 04.05.2001 when she was subjected to X-ray examination. Therefore, it is held that the prosecution has failed to establish that the prosecutrix was less than 16 years of age on the date of the occurrence.
***
12. After seeing the FSL report Ex.PF and also the medicolegal report Ex.PG, PW9 Dr. Santosh Jain deposed in her examination-in-chief that there was no possibility of sexual assault on the prosecutrix. Under these circumstances, it cannot be said that the appellant had sexual intercourse with the prosecutrix. Therefore, the conviction under Section 376 IPC cannot be sustained."
16. On the other hand Ld. Additional Public Prosecutor for the State submitted that prosecution has proved the age of the prosecutrix and age written in the TC of the prosecutrix issued by her school is admissible in evidence and the arguments of Ld. Defence Counsel are not convincing.
17. In support of her arguments, he relied on a case SC No.110/13 State vs. Rajan Page 9 of 23 Pradeep @ Sheru @ Sher Singh v. State, 2013 II AD (CRI.) (DHC) 420 wherein the Delhi High Court observed that:
"6. Age of the prosecutrix is crucial to determine the guilt of the accused. From the inception, prosecution case is that 'X' was below 16 years of age and her consent to have physical relationship with the accused was immaterial. The First Information Report (Ex.PW2/A) was lodged by PW-2 (Ram Dass), 'X's father in which the date of birth of the prosecutrix was described as 13 years. 'X' was medically examined and her MLC (Ex.PW-4/A) records her age as 13 and a half years. Her school record was collected and proved by PW-6 (Ms. Santosh, Principal of MCD Primary School, Chander Vihar, Delhi). She deposed that as per record, 'X' was admitted in their school in class 1 on 6th July, 1999 vide Srl.No.1590. She left the school on 31.03.2004 after passing Class V. As per the record, the date of birth of the prosecutrix 'X' was 01.04.1993. She brought the original register, the copy of which is Ex.PW6/A. She also brought the original admission form by which 'X' was admitted in the school which is Ex.PW-6/B. She was not cross-examined by the accused. The accused did not suspect genuineness of the documents. No suggestion was put to the witness that the prosecutrix was more than 18 years of age on the day of incident or that her date of birth i.e. 01.04.1993 was incorrect.*** I have no reasons to disbelieve the date of birth recorded in the school records. This date of birth was recorded much prior to the happening of the incident. The parents of the prosecutrix did not anticipate that any such incident would happen in future. Date of birth recorded as 01.04.1993 cannot be doubted without any reasonable ground."
18. My attention goes to a case Deepak Kumar v. State, (2012) (II) JCC 914 wherein the Delhi High Court relying on the Supreme Court decision in Arnit Das v. State SC No.110/13 State vs. Rajan Page 10 of 23 of Bihar, [2000] 5 SCC 418, held that a hyper-technical approach could not be adopted while appreciating the evidence in favour of juvenility of an accused, even though the certificate of Municipal Corporation of Delhi (MCD) produced by the petitioner was reliable to be rejected being incorrect, the school leaving certificate ought not to have been discarded without any valid reason being rendered or having summoned or examined the Head Master or any other official of this court. The ASJ could have considered the Ossification Test only after the school leaving certificate was found to be unreliable as under Rule 12 of the JJ Rules.
19. PW4 mother of the prosecutrix deposed that age of her daughter was about 16 years. In cross examination she stated that she did not remember the date of birth of her daughter as she was illiterate. Her brother-in-law (devar) might have got written the date of birth of her daughter in the school record. PW11 in her cross examination stated that the mother of the prosecutrix handed over a certificate regarding date of birth of prosecutrix and thereafter he verified the date of birth certificate from the school record. However, he admitted that he did not get ossification test of the prosecutrix got conducted.
SC No.110/13 State vs. Rajan Page 11 of 2320. The prosecutrix as PW1 stated that her date of birth was 07.9.1994. PW9, Vice Principal of the school in which the prosecutrix studied proved her record including date of birth record and as per school record the date of birth of prosecutrix was 07.09.1994. In Ex.PW11/C and Ex.PW11/B, i.e. missing person form and ZIP NET pamphlet respectively, age of the prosecutrix has been mentioned as 16 years. In cross examination PW9 stated that there is no other date of birth certificate in her school record except the transfer certificate dated 01.04.2005 mentioning the date of birth of ------Z------ as 07.09.1994. The date of occurrence is 30.11.2010. On calculation the age of the prosecutrix on the date of occurrence comes to above 16 years two months and 23 days. Although prosecution did not examine brother in law (devar) of PW4 mother of the prosecutrix who told the age of the prosecutrix in the school and also did not file any other document for example, date of birth certificate issued by Municipal Corporation of Delhi or entry regarding birth of the prosecutrix in the hospital, yet, on the basis of evidence produced on record which is reliable and trustworthy it is held that the prosecutrix was less than 18 years of age and above 16 years of age on the date of occurrence. Thus, it stands proved on record that the prosecutrix was SC No.110/13 State vs. Rajan Page 12 of 23 minor at the time of occurrence.
Whether accused committed sexual intercourse with the prosecutrix
21. Ld. Defence Counsel argued that no injuries were found on the private parts of the prosecutrix and that has created doubt about alleged rape on her.
22. In support of his arguments Ld. Defence Counsel further relied on a case State v. Anwar Hussain, 2012(4) CCC 480 (Delhi) (DB), wherein Delhi High Court observed that:
"19. In the MLC Ex.PW8/A and Ex.PW9/A, no physical injuries were found on the private part of the accused. The prosecutrix, as stated above, was of tender age, i.e. five years at the time of occurrence and the accused was aged about twenty-six years. If a person of stature of the accused happens to insert his private part into the vagina of a girl of five years, there is every probability of the injuries being sustained on it. PW1 in her testimony testified that accused used to insert his male organ in her private part after removing his and her underwear. In view of the fact that there was a complete sexual intercourse, absence of such injuries on the private parts throws doubt on the prosecution story."
23. PW1 deposed that Rajan Bhati accused was his neighbour. She became friendly with accused and they used to meet each other. On 30.11.2010 she had gone to the house of her maternal uncle (mama) at Nand Nagi to SC No.110/13 State vs. Rajan Page 13 of 23 attend marriage. Accused Rajan Bhati came there and took her to Balaji, Mehandipur, Rajasthan telling that he would marry her. They stayed at Ashram. He committed rape with her. Thereafter, they returned back to Delhi and she called the police. In the cross examination she stated that they had physical relations before solemnization of marriage on 21.12.2010. She told the IO in her statement that accused Rajan had committed rape on her. As PW1, she deposed that accused committed rape on her several times. Nobody was there at that time. He had committed rape on her first time on 20.12.2010 against her wishes.
24. PW12 on this aspect deposed that she had seen the MLC No.20103735766 dated 25.12.2010 of -------- Z-------d/o -----Y----- aged 16 years who was brought into the hospital by Ct. Meenakshi for her medical examination. She was medically examined by Dr. Vaishali Jain, Sr. Resident who had left the services of the hospital. She identified her handwriting and signature on MLC Ex.PW1/B. On perusal of MLC Ex.PW1/B, I find that no history of sexual contact was alleged. However, on local examination doctor observed that hymen was found torn and the prosecutrix admitted one finger easily.
25. PW13 deposed that she had seen MLC No. SC No.110/13 State vs. Rajan Page 14 of 23 C-5851/10 dated 25.12.2010 of accused Rajan Bhati s/o Sh. Nand Kishore Bhati who was brought into the hospital by SI Iqbal Ahmad for his medical examination. He was medically examined by Dr. Hareesh, Jr. Resident who had left the services of the hospital. She identified his handwriting and signature on MLC Ex.PW13/A. On perusal of MLC Ex.PW13/A, I find that it has been mentioned that on examination it cannot be said that the person cannot perform sexual act.
26. On analyzing the evidence on record, I find that prosecutrix has given different versions at different stages. In the statement Ex.PW1/DB recorded by police u/s 161 of the Code on 25.12.2010, she stated that Rajan committed sexual intercourse with her without her consent. When she was produced before the doctor for her medical examination on the same day she informed the doctor that there was no history of sexual contact as per history given by the victim. On local examination, doctor found that there was no fresh bleeding and she admitted one finger easily. In her statement u/s 164 of the Code recorded by Ld. M.M., on 03.01.2011, when Ld. M.M. asked her whether she intended to make her statement voluntarily or whether anybody had terrorized, scolded or given any enticement, she answered in affirmative and explained that police SC No.110/13 State vs. Rajan Page 15 of 23 officials and her family members scolded and terrorized her to make her statement against Rajan because she was in love with her and she wanted to solemnize marriage with her. Her entire statement is silent about sexual assault on her by the accused. In cross examination she admitted that she knew the accused for the last 10 years and she was in love with him and that she used to say that she would marry accused and that her parents did not agree for her marriage with the accused. In the statement u/s 313 of the Code, the accused denied the evidence of commission of sexual intercourse with the prosecutrix. DW1 also deposed that father of the prosecutrix came with the proposal of marriage of his daughter prosecutrix to his grand son, the accused and he declined the proposal as her grand son and the prosecutrix were minor at that time. On the basis of the evidence on record and particularly discussed here in above it is held that prosecution could not prove beyond reasonable suspicion and shadow of doubt that the accused committed sexual intercourse with the prosecutrix.
27. The other reason of my decision is that medical evidence i.e. Ex.PW1/B and scientific evidence i.e. FSL reports Ex.PW11/G and Ex.PW11/H do not support the testimony of the prosecutrix as she stated that the SC No.110/13 State vs. Rajan Page 16 of 23 accused committed sexual intercourse with her many times. The reports Ex.PW11/G and Ex.PW11/H are inconclusive. Admitting one finger, as mentioned in MLC Ex.PW1/B, does not support the testimony of the prosecutrix that she was sexually assaulted many times.
28. The principles of law laid down in case, Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC) also support the case of defence. 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. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220)."
Kidnapping/abduction of the prosecutrix by accused
29. The prosecutrix on this aspect deposed that accused Rajan Bhati was his neighbour and she became friendly with him and they used to meet each other. On 30.11.2010 she had gone to the house of her maternal uncle (mama) at Nand Nagri to attend his marriage. Accused Rajan Bhati came there and took her to Balaji Mehandipur, Rajasthan telling that he would marry her. They stayed at Ashram. Thereafter, they returned back to SC No.110/13 State vs. Rajan Page 17 of 23 Delhi on 21.12.2010 and she called the police and they were taken to PS Anand Vihar near Karkardooma Court.
30. In cross examination the prosecutrix admitted that she was in love with the accused Rajan Bhati and she used to say that she would marry with the accused and that her parents did not agree. The accused told her prior to Diwali, 2010 that if there was a marriage in her family he would take her from the marriage place. On 25.11.2010 she informed accused regarding marriage to be held in her family. She told him about the actual date of marriage. She attended the marriage. She informed the accused about her arrival at the place of marriage using her own mobile phone. She called him at the marriage place. Before leaving she had written a letter at the house of her maternal grand father. Letter was placed on record as Mark X-1. She admitted that accused did not give any threat for getting the said letter written by her. During the aforesaid period she did not call any relative. They had gone to Burari for the purpose of solemnizing marriage. She stated to the doctor that she had run away with her friend Rajan on 30.11.2010 and they married in a temple on 21.12.2010 and she had also told the doctor that there was no sexual relationship between her and the accused. She had written name of accused Rajan on the school bench as well as on SC No.110/13 State vs. Rajan Page 18 of 23 the wall. On the basis of evidence on record and particularly discussed here in above, it is held that prosecution has failed to prove that the prosecutrix was either kidnapped or abducted by the accused. Conversely, the evidence on record has proved that she was the prosecutrix who intimated and called the accused with the place of marriage and they left of their own. There is no evidence to prove that the accused either forced, compelled or enticed the prosecutrix or by deceitful means induced her to go from her place or that accused abducted or kidnapped the prosecutrix with the intention for compelling her to marry against her will or that she may be forced to do illicit intercourse.
31. My decision on this aspect finds support by the principles of law laid down in case Sonu v. State (NCT) of Delhi, 2010 [2] JCC 1337 wherein Delhi High Court observed that:
"11. Prosecutrix being more than 16 years of age and having accompanied the appellant of her own free will and accord; she being a consenting party, ingredients of the offence under Section 376 IPC are not attracted in this case. Accordingly, appellant is acquitted of the offence under Section 376 IPC.***
13. Prosecurtix having herself accompanied the appellant to his village staying with him for about one week, it cannot be said that appellant had taken her away from the protection of her lawful guardian within the meaning of Section 361 IPC. Reliance is also placed on S. Veradarajan SC No.110/13 State vs. Rajan Page 19 of 23 vs. State of Madras, reported in AIR 1965 SC 942.
14. Ingredients of offence under Section 366 IPC are also not attracted in this case in absence of any evidence to show that appellant had taken prosecurtix with him by using force or inducement. The statement of prosecurtix shows that she willingly accompanied the appellant to his village and stayed with him there.
15. Accordingly, I am of the view that no offence under section 366 IPC is made out. Appellant is acquitted of the charges under Sections 363/366 IPC as well."
32. The other reasons which support my decision that prosecution has failed to prove its case against accused beyond reasonable suspicion and doubt are firstly that there are material contradictions and inconsistencies in the testimony of prosecutrix as enumerated here in above and those have created doubt in the truthfulness of the prosecution case. My decision in this regard finds support by principles of law laid down in a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful."SC No.110/13 State vs. Rajan Page 20 of 23
33. My decision on this aspect further finds support by the principles of law laid down in case of a case Labh Singh v. State of M.P., IX-1986(3) Crimes 176, wherein the accused was acquitted for the offence punishable u/s 376 IPC on the ground that there were material contradictions in the prosecution case which were causing doubt on the prosecution story.
34. Secondly, my attention goes to a case Ashok Narang v. State, 2012 [1] JCC 482 wherein the Delhi High Court observed that:
"104. If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes two inconsistence statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses."
35. Thirdly, 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 SC No.110/13 State vs. Rajan Page 21 of 23 accused, the accused is undoubtedly entitled to the benefit of doubt."
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.
36. Fourthly, the accused has succeeded in creating doubt in prosecution case so he is entitled to get benefit of doubt. My decision finds support by the case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, 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. 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 him beyond any reasonable suspicion or shadow of doubt.
SC No.110/13 State vs. Rajan Page 22 of 23CONCLUSION
38. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that accused Rajan either committed offence of kidnapping or offence of kidnapping, abducting or inducing woman to compel her marriage, etc. punishable u/s 363/366 IPC or committed rape on the prosecutrix punishable u/s 376 IPC. Consequently, by giving benefit of doubt to the accused, he is acquitted for the offences punishable u/s 363/366/376 IPC.
39. However, accused is directed to furnish within a week his personal bond for a sum of Rs.10,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
40. After furnishing of surety bonds file be consigned to Record Room.
Announced in the Open Court Dated: 17.04.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.110/13 State vs. Rajan Page 23 of 23