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[Cites 13, Cited by 0]

Delhi District Court

­44­ vs . on 5 December, 2015

                                       ­1­

          IN THE COURT OF SHRI PAWAN KUMAR MATTO, 
         ADDITIONAL SESSIONS JUDGE­01/WEST: DELHI


S.C. No. 53/13
Unique Case I.D. No. 02401R0476592011

FIR No.      :      162/11
PS           :      Nangloi
U/s          :      376 of IPC 


State 
   Vs.
Ramphal
S/o Sh. Late Sh. Bishan Singh,
R/o C­5/B­93, Sawran Park, 
Pappu Property Wali Gali,
Mundka, Nangloi.                                    ... Accused

Date of Institution        :      ..... 02.12.2011
Date of arguments          :      ..... 27.11.2015 
Date of judgment           :      ..... 05.12.2015


JUDGMENT:

­ 1 Brief facts of the case of the prosecution are that the accused Ramphal is charge­sheeted by the police of PS Nangloi for the offence punishable U/S 376 of IPC, as the FIR in the case in FIR No. 162/11 State Vs. Ramphal Page no. 1 of 48 ­2­ hand has been registered on the basis of the statement of the prosecutrix 'N' (presumed name of prosecutrix. The real name of the prosecutrix is withheld to protect her identity). The prosecutrix has alleged in her statement recorded by the police on 08.06.2011 which is Ex.PW1/A that she is 14 years of age. She lives with her th parents and studies in 6 class. When, she was 6/7 months of age. The accused who is maternal uncle of the prosecutrix adopted her, as he was not having any child and when his son was born, then, the accused started beating to the prosecutrix and she started living in the house of her parents and further alleged that on 22.05.2011 at 4.00pm, Rohit i.e. son of her maternal uncle, (i.e accused) had come to the house of the prosecutrix and her mother had asked him the reason for weeping and master Rohit told that he has been beaten by the children and his mother had gone to the village to attend some condolence and Rohit asked to the prosecutrix to go the house of the accused for cooking the meal and also cleaning his house and the mother of the prosecutrix had send to the prosecutrix alongwith her sisters "P" and "B" who returned to their house, after leaving the prosecutrix in the house of the accused. FIR No. 162/11 State Vs. Ramphal Page no. 2 of 48 ­3­ She has further stated that the accused came to his house at 11.00pm. She prepared BHUJIA of eggs and took the dinner together and slept and at about 1.00/1.30am the accused started doing GALAT HARKAT with the prosecutrix and removed her SALWAR and when she resisted and cried, then, the accused put a cloth on her mouth and pressed the same. So she could not cry and the accused raped to the prosecutrix and in the meantime she became unconscious and she regained her consciousness at 9.00am in the next morning and she went to her house and apprised to her elder sister and they did not tell to any person in view of fear of damage to their reputation and in view of pressure of the relatives and after due deliberation they have dialed 100 number on 07.06.2011.

2. On recording of such statement of the prosecutrix on dated 08.06.2011 the FIR no.162/11 was registered on dated 08.06.2011 and she was medically examined her the statement U/S 164 of Cr.P.C was recorded and the accused has surrendered in the court on dated 08.06.11. On completion of the investigation the charge­sheet was filed U/S 376 of IPC and on finding of the prima­ FIR No. 162/11 State Vs. Ramphal Page no. 3 of 48 ­4­ facie case, the charge U/S 376 of IPC was framed against the accused, to which the accused pleaded not guilty and claimed trial.

3. In order to prove its case,the prosecution has examined 19 witnesses.

4. The prosecutrix has been examined as PW1 who has deposed that she cannot tell about the date and month of the incident and stated that the incident probably took place in the year th 2010 when she was studying in 6 class. She has also deposed that when she was about 6/7 months of age, she was adopted by the accused. But, when a child was born to the accused. Thereafter, the accused and his wife started beating her and finally she came to the house of her parents and started living with them and also deposed about the alleged incident that it was Sunday and the Rohit, who is the son of the accused had come to her house and he was crying at that time and told to the mother of the prosecutrix that he was beaten by other children and told that his mother had gone to the village, as some death has taken place and Rohit, i.e. son of the accused asked to the mother of the prosecutrix to send the prosecutrix to his house. So that, she may take care of FIR No. 162/11 State Vs. Ramphal Page no. 4 of 48 ­5­ cleaning the house and also for cooking the food for them.

5. The prosecutrix has further deposed that on the night of the incident accused slept with his son Rohit on a bed and she slept on a cot and at about 1.00am in the night. The accused came to her cot and when, he was trying to put off her SALWAR she woke up and resisted his attempt and accused put a towel on her mouth and pressed it with hands and she does not know what happened thereafter, as she became unconscious and she woke up in the morning at 6.00am and accused asked her to prepare tea. But, she told that she was going her house and she went to the house of her parents and on her arrival, the mother of the prosecutrix left for her duty and prosecutrix made a call to her elder sister at about 9.00am and told about the incident and her sister called her father and stated about the incident and at about 10.00/10.30am her father came back and made enquiries from the prosecutrix about the incident and she could not tell about the same as the accused had also come there and she got frightened and she became unconscious and regained her consciousness after about 2/3 hours and one doctor was called upon. When, she FIR No. 162/11 State Vs. Ramphal Page no. 5 of 48 ­6­ became unconscious and when she regained consciousness she found her entire family was there and in front of her family, she had narrated about the incident and the accused was called by her family members. He came there, but did not say anything. She has further deposed that her parents again called to the accused and his wife. But, he did not come and the accused tendered an apology for his conduct. When, he was called in the evening of previous day. She has also deposed that she had come to understand about the GALAT KAAM being done by the accused when she felt pain. The accused has inserted his male organ into her urinal organ and thereafter, she became unconscious. She has also deposed that the police was informed about the incident 10­15 days, after the incident, as all the relatives told her parents to not report the matter to the police, as it was the matter of reputation of the family. She has proved her statement recorded by the police, which is Ex.PW1/A and she has also proved her statement recorded by the Ld. Metropolitan Magistrate U/S 164 of Cr.P.C which is Ex.PW1/B. She has also proved her black colour legging and brown colour panty which are alleged to have been worn by the FIR No. 162/11 State Vs. Ramphal Page no. 6 of 48 ­7­ prosecutrix on the date of alleged incident which are Ex.P­1 and Ex.P­2 respectively. She has also deposed that she got married on th 7 September, 2010 and she has gone to matrimonial home only once alongwith the sister who was also married in the same family. She has also deposed that she did not have any physical relation with her husband. Since, at the very outset she had told that she cannot tell the date and month of the incident, so, the Ld. APP had sought permission to ask leading question and Ld. Predecessor of mine was pleased to allow and on giving the suggestion about the date of occurrence, she has stated that the incident took place on 22.05.2011 and the statement was recorded by the police on 07.06.2011. She has also proved the arrest memo of the accused Ex.PW1/C and personal search memo of the accused Ex.PW1/D. She was cross­examined by Ld. Counsel. During her cross­examination she has testified that since the age of six months till the age of 14 years, she stayed in the house of the accused. She has also admitted that the accused did not commit any such wrong during the said period. During her cross­ examination she has also deposed that she had not pushed or FIR No. 162/11 State Vs. Ramphal Page no. 7 of 48 ­8­ slapped to the accused nor she had tried to escape but the accused kept the cloths on her mouth and she became unconscious and also deposed that she arrived at her house at 9.30am and further stated that she did not tell to the Doctor who has visited her house about the incident in question. She has admitted that she has refused for her medical examination before the doctor but, denied the suggestion that she has refused for the same for the reason that no such incident had taken place. She has also deposed that she does not know whether there was any quarrel between Ishwar i.e. brother­in­law of the accused and her BUA regarding the property. But admitted that there was a complaint and also admitted that Ishwar has been died. She has also shown her innocence about any dispute of property in the family. She denied that no such incident has taken place or that she has deposed falsely.

6. PW2 Dr. M. Dass has proved the MLC of the accused Ex.PW2/A. PW2 was not cross­examined so, the opportunity of accused to cross examine was done NIL. Whereas, Ms. Usha has been examined as PW3 who has deposed that she is the wife of FIR No. 162/11 State Vs. Ramphal Page no. 8 of 48 ­9­ younger brother of the father of the prosecutrix and she had accompanied to the prosecutrix to the police officials at the time of medical examination of the prosecutrix and proved her thumb impression on the MLC of the prosecutrix Mark X at point A which was subsequently Ex.PW6/A. She was also cross­examined by counsel for accused. During her cross­examination, she deposed that she did not know about the case prior to 07.06.2011 and she has also admitted that police officials did not obtain her thumb impression or signature anywhere.

7. Whereas, the mother of the prosecutrix has examined as PW4 who has testified that the prosecutrix is the younger daughter of her and she is about 15 years of age and when she was 6/7 months of age, she was given to her brother i.e. the accused, as accused was not having any child at that time and further deposed that the accused and his wife started beating to the prosecutrix so, she did not want to live with the accused. Therefore, the prosecutrix started residing with this witness about 6/7 months prior to the incident and also deposed that on the date of incident, the prosecutrix had gone to the house of the accused FIR No. 162/11 State Vs. Ramphal Page no. 9 of 48 ­10­ and on the next morning at 9.00am, the prosecutrix had returned to her house and she went on her duty but prosecutrix did not tell anything prior to her living for her duty. She has also deposed that at about 11.00am her husband came to the factory and stated that the prosecutrix was not well and she was unconscious and this witness went to her house immediately after taking leave from the factory and elder daughter of this witness has also arrived in her house and who had told her that the prosecutrix had telephoned her. She has also deposed that since her almost all relatives are living nearby and they had received the information about the alleged commission of the crime. So, her relatives had advised to lodge complaint about the incident and on dated 07.06.2011 her husband called to the police by way of dialing 100 number. She was cross examined by the Ld. Counsel for accused and during her cross examination, she has denied the suggestion that there was a dispute between her sister­in­law and wife of the brother­in­ law of the accused namely Ishwar regarding the land or that any complaint was filed against her and her husband in the concerned PS. She has admitted that prosecutrix started residing with her 6­7 FIR No. 162/11 State Vs. Ramphal Page no. 10 of 48 ­11­ months prior to the date of incident and admitted that the prosecutrix was adopted by the accused when she was 6­7 months of age. During her cross­examination, she has also admitted that before this incident there was no complaint of any kind from the side of the prosecutrix against accused or any other person. She has also admitted that in the month of December, 2009 her family members had sold the piece of land in village Dabi near Patiala and she has also executed relevant documents. She has also admitted that Jug Lal is her NANA (maternal grandfather) and after the demise of Jug Lal, her mother had inherited his land. She has also admitted that she and accused are only children of Smt. Omni and she has also sold her portion inherited in the land situated at village Kalayat on 27.07.2012. She has denied that the prosecutrix has not disclosed anything about the incident to her. She has also admitted that she did not make any enquiry from the accused or his wife regarding the incident in question. She has admitted that she was read over her statement by the police. She has also deposed that she did not take any advise from her relative for making a complaint against the accused nor any of her relative asked her to lodge the FIR No. 162/11 State Vs. Ramphal Page no. 11 of 48 ­12­ complaint against the accused. She denied that accused has been falsely implicated or that she has deposed falsely.

8. Whereas the PW5 is the father of the prosecutrix who has testified that the prosecutrix is his daughter and she is about 15 years of age and he had given her to the accused, when, she was about 6/7 months of age. He has also testified that the prosecutrix started living with him 6/7 months prior to the date of incident. He has also deposed that on dated 07.05.2011 the son of the accused namely Rohit came to his house and requested to send the prosecution to his house as his mother had gone to attend condolence in relation and the prosecutrix was sent and she stayed there in the house of the accused on the night of 7/8­05.2011 and returned on dated 08.05.2011 at 9.00am. At that time he had already left for duty and at about 10.30am his another daughter "J" who has been examined as PW10 informed him about the incident and he came to his house immediately and found the prosecutrix in semi­conscious state and he was told by PW10 i.e. another daughter of this witness and further deposed that his relatives advised him to lodge the complaint about the incident and FIR No. 162/11 State Vs. Ramphal Page no. 12 of 48 ­13­ his brother and his wife had come to his house from Kurukshetra and he telephoned to the police at 100 about the incident and police officials searched the accused and Ld. APP had sought permission to ask leading question to this witness and on asking, the leading question this witness admitted that the incident had taken place in the intervening night of 22/23­05­2011 and he telephoned the police on 07.06.2011. This witness was cross examined and during his cross examination, he has admitted that the prosecutrix has not told anything about the incident to him. He has also stated that he is not aware about the contents of his statement recorded by the police. He has also deposed that he had not enquired the incident from the accused. He has denied that he has falsely implicated to the accused or that his wife wants to grab the entire property/inherited land.

9. Whereas PW6 Dr. Laxmi has proved the MLC of the prosecutrix Ex.PW6/A. She has not been cross­examined so, the opportunity to cross examine was done NIL. PW7 Ct. Monita has proved the seizure memo Ex.PW7/A, vide which, the sealed pulandas were seized and also testified that MLC of the prosecutrix FIR No. 162/11 State Vs. Ramphal Page no. 13 of 48 ­14­ was handed over to the IO. She has also not been cross­examined by the accused. So his opportunity to cross­examine was done NIL. PW8 is Ct. Bijender has testified that he took the exhibits in sealed condition and FSL form for depositing the same with FSL and obtained the receipt after depositing the receipt in the FSL and handed over the copy of road certificate and acknowledgment slip to the MHC(M) and nobody had tempered with the same. He was also not been cross­examined. Ct. Sandeep Kumar has examined as PW9 who has proved disclosure statement of the accused Ex.PW9/A and memo of arrest of the accused Ex.PW1/C and memo of personal search of the accused Ex.PW1/D. He has also testified that he took to the accused to SGM Hospital for his medical examination and the concerned doctor has handed over to him the sealed parcels containing blood sample of the accused alongwith sample seal and he handed over the same to the IO who seized the same vide Ex.PW9/C and identified his signature thereon. Whereas PW10 is sister of (PW1) prosecutrix, who has testified that on dated 23.05.2011, she has received a telephonic call from the prosecutrix and that the accused had committed rape FIR No. 162/11 State Vs. Ramphal Page no. 14 of 48 ­15­ of her on the night of 22.05.2011 and she had advised to the prosecutrix to inform their parents and also testified that she had narrated the incident to her parents and she has also stated that she does not know whether any complaint to the police was lodged by the prosecutrix or her parents and also stated that her statement was not recorded. Then, Ld. APP has sought permission to cross­examine this witness. Permission was given by Ld. Predecessor of mine and then thereafter, she has admitted that the complaint was made to the police and prosecutrix was also medically examined. During her cross­examination PW10 has also admitted that the prosecutrix was adopted by the accused and since the age of six months, she was residing with him, she has also admitted that prosecutrix never stated her about any such incident prior to the present incident, but she had stated that her sister has never gone to her matrimonial home and her Gauna was not performed till that date. And she has also admitted that accused and his wife attended the marriage of the prosecutrix and they have performed all ceremonies and customs. But she has alleged that she was not treated well by the wife of the accused and she used to FIR No. 162/11 State Vs. Ramphal Page no. 15 of 48 ­16­ beat to the prosecutrix. But she failed to tell about the exact date of such beating. She has also stated that her parents had gone to take prosecutrix from the house of the accused. But accused and his wife did not allow to take the prosecutrix with them and she has also deposed that on dated 23.05.2011 the prosecutrix had telephoned her at 10.30am but she failed to tell the phone number from which she had received the call from the prosecutrix and she has also stated that on receiving of call of the prosecutrix, she had come to her parental house at 1.00/1.30pm along with her father in law and mother in law. She has also admitted that in her presence, the prosecutrix had not made any call to the police on the said date, but denied that no such occurrence with the prosecutrix had taken place. She has also denied that she has not received any telephone call of the prosecutrix, she has also denied that accused has been falsely implicated or that she has deposed falsely being sister of the prosecutrix.

11. Whereas SI Jagdish Singh has been examined, as PW11, who has testified that on 07.06.2011 he was posted at PS Nangloi and being DO from 5.00pm 1.00am and at around 6.52pm FIR No. 162/11 State Vs. Ramphal Page no. 16 of 48 ­17­ he had received an information from West District control room and made entry of the same in DD register at serial no.38­A and copy of the same is proved as Ex.PW11/A and he has also testified that the investigation was marked to SI Vijay Singh and SI Vijay Singh handed over him rukka at about 12.05am and copy of the present FIR registered on the basis of rukka from the computer operator and the copy of the same is Ex.PW11/B and endorsement thereof is Ex.PW11/C. This witness was also not cross examined.

12. Sh. Sudhir Kumar has been examined as PW12. He has testified that on dated 07.06.2013 he was posted at PCR and he was on duty at channel no.102 and at around 6.40pm, he received a call regarding rape and he made entry of the same in computer and same was conveyed to the net and he filled the PCR form which is Ex.PW12/A. This witness was also not cross­ examined. Ms. Sunita Incharge of the Government Sarvodaya School has been examined as PW13, who has proved entry in the admission register Ex.PW12/A and she has also proved the attendance register of the prosecutrix Ex.PW12/B. This witness was also not cross­examined. Sh. Lal Singh has been examined as FIR No. 162/11 State Vs. Ramphal Page no. 17 of 48 ­18­ PW14 who has deposed that he was posted in the PS Nangloi as MHC(M) and he had received sealed pulanda with seal of SGM hospital along with the sample seal and entry in the register no.19 at serial no.5742 and the same is proved as Ex.PW14/A and he has also testified that on dated 08.06.2011 HC Atul Kumar was working as MHC(M) and he identified his handwriting and signature and entry no.5628 which is Ex.PW14/B. He has also deposed that on 06.09.2011 two sealed parcels along with two sample seals were sent to FSL Rohini through Ct. Vijender vide RC no.92/21/11 and he made entry in this regard in register no.19 and photocopy of RC is Ex.PW14/C and photocopy of receipt of FSL is Ex.PW14/D. This witness was also not cross­examined and Ms. Vandana Jain, Ld. MM has examined as PW16 who has proved the statement of the prosecutrix Ex.PW1/B recorded U/S 164 of Cr.P.C as Ex.PW1/B and certificate issued by her regarding the same Ex.PW16/A and application to record such statement of the prosecutrix Ex.PW16/B and application for getting the copy of the said statement is Ex.PW16/C. Whereas, Ct. Ashok has been examined as PW15 who has testified that on dated 07.06.2011, he FIR No. 162/11 State Vs. Ramphal Page no. 18 of 48 ­19­ was on emergency duty from 8.00am to 8.00pm and on that day, on receipt of DD no.38A at about 6.52pm he along with SI Vijay went to the house of the prosecutrix and prosecutrix met them and told about the incident and SI informed to the duty officer to sent a lady officer Ct.Monita came at the spot and in the supervision of Wct.Monita and aunt of the prosecutrix, the prosecutrix was medically examined in the SGM hospital and after her medical examination sealed pulanda alongwith sample seal were handed over to SI Vijay who seized the same and SI Vijay recorded the statement of prosecutrix and prepared rukka and handed over the same to duty officer for registration of the FIR and duty officer handed over the FIR and original rukka to SI Savita and further investigation was handed over to her and SI Vijay handed over the MLC and sealed pulanda alongwith sample seal to IO/SI Savita & he went to the house of the accused on pointing out the prosecutrix,IO prepared the site plan and recorded his statement. This witness was cross­examined. During his cross examination he stated that he cannot tell the time of reaching in the hospital. He has denied that site plan was not prepared in his presence or that he has FIR No. 162/11 State Vs. Ramphal Page no. 19 of 48 ­20­ deposed falsely. Whereas SI Vijay has been examined as PW17 and he has proved the seizure memo Ex.PW7/A. He has also proved the rukka Ex.PW11/C. Dr. Rajesh Dayal has been examined as PW18. He has proved the MLC of the prosecutrix Ex.PW18/A and testified that no fresh external injury was seen. This witness was also not cross­examined.

13. Whereas, WSI/IO Savita has been examined as PW19. She has deposed about the investigation and proved the site plan Ex.PW19/A and report of FSL Ex.PW19/B. This witness was cross­ examined and during her cross examination she has admitted that no public witness was joined in the investigation and also stated that nobody was found at the spot during her visit.

14. On completion of the evidence of the prosecution, the accused was examined U/S 313 of Cr.P.C. The accused has also examined Sh. Ram Kumar as DW1 and Sh. Om Parkash as DW2.

15. I have heard the Ld. counsels for the parties and perused the record.

16. The Ld. APP for the state has submitted that prosecutrix has been examined, as PW1 and prosecutrix is none but the real FIR No. 162/11 State Vs. Ramphal Page no. 20 of 48 ­21­ niece of the accused. He has further submitted that on the date of occurrence, the wife of the accused had gone to attend some condolence meeting in the village, in view of demise of her relative and the son of the accused had gone to the house of the prosecutrix and the mother of the prosecutrix sent to the prosecutrix with her two sisters "P" (presumed name) and "B" (presumed name) who returned to their house after leaving the prosecutrix "N" at the house of accused and accused Ram Phal arrived at 11 PM, the prosecutrix prepared bhujia of eggs and the prosecutrix took dinner along with the accused and slept and at about 1/1.30 AM, the accused Ram Phal removed the SALWAR of the prosecutrix and when she resisted and cried and her mouth was pressed with the cloth and in view of the same, and the accused Ram Phal succeeded in committing rape of the prosecutrix and the prosecutrix became unconscious and on the next morning on dated 23.05.2011 at 9.00AM when, she regained her conscious she returned to her house and narrated about the incident to her elder sister "J" and further submitted that the prosecutrix has been examined as PW1, who has supported her version and despite of FIR No. 162/11 State Vs. Ramphal Page no. 21 of 48 ­22­ her cross examination, the testimony of the prosecutrix has gone unimpeached. He has further submitted that the prosecution has examined 19 witnesses and since the prosecution has successfully proved its case so, the accused is liable to be convicted.

17. Whereas Ld. counsel for the accused has submitted that the accused has been falsely implicated in the present case. He has further submitted that there is an inordinate delay in lodging of the FIR which creates clouds of suspicion in the version of prosecution. He has further submitted that the occurrence has taken place in the intervening night of 22/23.05.2011, whereas complaint has been filed on 07.06.2011 and further submitted that no semen was found on the cloth of the prosecutrix and thus the medical evidence does not go to the corroborate the version of the prosecutrix. He has further submitted that the Rohit was also there in the same house on the alleged date of the occurrence but, he has not been examined, so in view of the non­examination of him and withholding of his evidence, creates doubts in the version of the prosecution and the accused is liable to be acquitted. He has further submitted that the present case has been planted on the FIR No. 162/11 State Vs. Ramphal Page no. 22 of 48 ­23­ accused in view of the dispute of property of the accused situated at Village Kelram at Kaithal and further submitted that the sister of the accused namely "S" (presumed name), who is none but the mother of the prosecutrix who has been examined as PW4 who has admitted during her cross examination that she has inherited the property from her mother and the Ld. Counsel has also submitted that since the mother of the prosecutrix was desirous to grab the share of the accused in the property inherited from her mother, so, in order to achieve her sinister motive, she has planted the present false case and also submitted that there are inconsistencies in the statements of the prosecutrix given to the police and her statement recorded U/s 164 of Cr.PC and further submitted that the prosecutrix remained in the house of the accused for about 13 years and it is admitted that no complaint against the accused has ever been filed that the accused was having any evil intention/eye on the prosecutrix and also submitted that in view of the such inconsistencies in the statements of the prosecutrix, the accused is liable to be acquitted.

18. It is further submitted that the prosecutrix was already FIR No. 162/11 State Vs. Ramphal Page no. 23 of 48 ­24­ married prior to the date of the alleged incident. He has further submitted that the prosecutrix has stated in her statement that she had told to her elder sister who has been examined as PW10, in the case in hand. Whereas, sister of the prosecutrix was examined as PW10. She has deposed in the court that the prosecutrix had told her about the alleged incident at 10.30am and submitted that these are material inconsistencies. He further submitted that this is an admitted fact that the prosecutrix is a married girl and PW10 during her cross examination has stated that the prosecutrix has never gone to her matrimonial home as her Gauna was not performed whereas, the prosecutrix has been examined as PW1 and she has admitted during her cross­examination that she was married on 17.09.2010 and she went to her matrimonial home and he has further submitted that there is also material inconsistency in the statement of the prosecutrix which creates suspicion about the worthiness of the witness. And submitted that the prosecution has failed to prove its case beyond reasonable doubt, and the prosecutrix is a tutored witness so, the accused may be acquitted.

19. I have given thoughtful consideration to the submissions FIR No. 162/11 State Vs. Ramphal Page no. 24 of 48 ­25­ of the Ld. Counsels for the parties and perused the record.

20. Perusal of the record shows that in the case in hand, the accused is alleged to have raped to the prosecutrix who was about 14 years of age on 23.05.2011 i.e. the date of alleged occurrence whereas, the present FIR bearing no.162/11 has been registered on 08.06.2011 at 12.10AM. There is delay of 16 days in registration of the FIR. The prosecutrix in her statement Ex.PW1/A has stated that she had regained consciousness at 9.00am on 23.05.2011 and returned to her house and told about the incident to her elder sister and when prosecutrix has been examined as PW1, she has deposed during her examination in chief that she had telephonically called to her sister at 9.00am and told her about the incident. Whereas, the sister of the prosecutrix has been examined as PW10 and during her cross examination she has deposed that the prosecutrix had telephoned her at 10.30am on 23.05.2011 and she arrived at her parental house at 1.00/1.30pm alongwith her mother­in­law and father­in­law. Thus, there are inconsistencies in the statement of PW1 and PW10.

21. The prosecutrix has deposed during her examination in FIR No. 162/11 State Vs. Ramphal Page no. 25 of 48 ­26­ chief that she called her sister i.e. PW10 at 9.00am and she told her about the incident and PW10 called to the father of the prosecutrix at about 10.00/10.30am, her father had returned and enquired about the incident from her. But, she could not tell anything as the accused had come to her house and in view of fear she became unconscious and also deposed that she regained consciousness after about 2­3 hours and one doctor was called upon whereas PW10 during her cross examination has deposed that the prosecutrix had telephoned her at 10.30am on 23.05.2011 and she came to her parental house at 1.00/1.30pm. Thus, the statement of PW1 and PW10 regarding the time of giving/receiving of information about the alleged commission of crime are inconsistent to each other.

22. The prosecutrix in her first statement given to the police which is Ex.PW1/A on the record, has stated that her parents did not disclose about the incident to any person, in view of fear of damage to the reputation and also in view of pressure of relatives and after due deliberation, 100 number was dialed on dated 07.06.2011. Whereas at the time of recording of her examination in FIR No. 162/11 State Vs. Ramphal Page no. 26 of 48 ­27­ chief on dated 21.09.2012, PW1 has deposed that the police was informed about the incident about 10­15 days, after the incident, as all the relatives told to her parents to not report the matter to the police. Thus, the explanation of delay in registration of the FIR given by the prosecutrix in her statement Ex.PW1/A and her testimony in this court recorded on 21.09.2012 are also found to be inconsistent to each other.

23. The prosecutrix in her statement Ex.PW1/A has stated that accused had put a cloth on her mouth and pressed, so, she could not cry and she was raped by the accused and she became unconscious and she regained consciousness on the next morning at 9.00am. Whereas, at the time of recording her statement U/S 164 Cr.P.C which is Ex.PW1/B. She has levelled the allegation of opening of her SALWAR. She has alleged that the accused had opened her SALWAR and she awoke and she cried and accused put the cloth on her mouth and pressed it and she became unconscious and she felt pain and cried and she again become unconscious and she regained consciousness at 5.00/6.00am and about 8.00/9.00am she left the cot, on which, she was sleeping and FIR No. 162/11 State Vs. Ramphal Page no. 27 of 48 ­28­ went to latrine and accused also awoke and asked her to prepare tea. But, she told him that she was going to her house and she returned to her house. Whereas, the prosecutrix has been examined as PW1 and at the time of recording of her examination in chief, at one point of time, she has deposed that at about 1.00am accused came to her cot and when the accused was trying to put off her SALWAR she woke up and resisted his attempt and the accused put towel on her mouth and pressed it with hand "I do not know what had happened, thereafter as I became unconscious". Thereafter, she started saying that "I came to know about the GALAT KAM being done by my Mama Ramphal when I felt pain (JAB MERI SALWAR KHOLNE KE BAD MUJHE DARD HUA TAB MUJHE PATA CHALA MERE SATH GALAT KAM HUA HAI) at the time, I felt pain. The accused had inserted his male organ into my urinal organ, I became unconscious". Thus from the statements of the prosecutrix, it is clear that there are material contradictions in her statements recorded at various stages. It is also pertinent to mention here that the prosecutrix who has been examined as PW1 she has admitted during her examination in chief that she got FIR No. 162/11 State Vs. Ramphal Page no. 28 of 48 ­29­ married on 17.09.2010 i.e. prior to the date of alleged incident and she had gone to her matrimonial home alongwith her sister, who was also married in the same family. She has also stated that she did not have physical relation with her husband. Whereas PW10 i.e the elder sister of the prosecutrix has deposed during her cross examination, that the prosecutrix had never gone to her matrimonial home. Thus, there are material contradictions in statement of PW1 and PW10. It is worthwhile to mention here that the prosecutrix has deposed during her examination in chief that her parents called to the accused and his wife and the accused tendered an apology for his conduct. Whereas, the mother of the prosecutrix has been examined as PW4 and during her cross examination at one point of time, she has deposed that she did not make any enquiry regarding the incident from the accused or his wife. If it is so, then it is unnatural conduct of the mother of the prosecutrix. Because had such incident really taken place, the PW4 would have asked to the accused about the incident. Thereafter, she started deposing during her cross­examination that she had telephonically called to the wife of the accused and accused had FIR No. 162/11 State Vs. Ramphal Page no. 29 of 48 ­30­ come to her house. PW4 during her cross­examination has admitted that when the prosecutrix was of about 8 months of age, she was adopted by the accused and since then, till the age of her 13 years there was no complaint of any kind against the accused. Prosecutrix who has been examined as PW1, has admitted during her cross­examination, that since the age of 6 months till her age of 14 years she stayed with the accused and, also admitted that the accused had not committed any such wrong with her during the said period.

24. The accused has taken the plea that he and his sister, who is the mother of the prosecutrix have inherited the property of their mother Smt. Omni and in view of the same dispute of property, the accused has been falsely implicated. It is worthwhile to mention here that PW4 who is the mother of the prosecutrix has admitted during her cross­examination that she and the accused are the only children of Smt. Omni and they have inherited the property of Ms. Omni. She has also admitted that she had sold her portion of inherited land situated at village KALAYAT on dated 27.07.2012 i.e. after the registration of the present case and during the period of FIR No. 162/11 State Vs. Ramphal Page no. 30 of 48 ­31­ judicial custody of accused. She has denied that the accused has been falsely implicated to grab the entire inherited land. She has admitted that the accused had also contributed Rs.1100/­, jewelery of pajeb, 21 utensils and some clothes in the marriage of the prosecutrix.

25. Dr. Rashmi has been examined as PW6 who has proved the MLC of the prosecutrix Ex.PW6/A. The perusal of the MLC Ex.PW6/A shows that the hymen of the prosecutrix is stated to be ruptured. But no external injury mark is seen on the body of the prosecutrix. It is not mentioned therein that hymen was freshly ruptured or it is old. It is an admitted fact that the prosecutrix was a married girl on the date of alleged occurrence. It is also admitted by the prosecutrix that she went to her matrimonial home, after her marriage. No doubt that the prosecutrix has denied that physical relation were developed between her and husband As the occurrence is alleged to have taken place on 23/05/11 at 1.00/1.30AM whereas the prosecutrix was medically examined on dated 07.06.2011 at 9.12pm at the time of her medical examination vide MLC Ex.PW6/A. No external injury is found in the report of her FIR No. 162/11 State Vs. Ramphal Page no. 31 of 48 ­32­ medical examination. She was menstruating. Exhibits were sent to FSL. Report of FSL has been received. Same is Ex.PW19/C. It also does not support the version of the prosecution.

26. In the case in hand, the statement of the prosecutrix, her mother and sister suffer from material contradictions. As discussed above, the prosecutrix has alleged in her statement Ex.PW1/A that on dated 23.05.2011 at 1.00/1.30am, the accused removed her SALWAR and when she cried the accused had put cloth on her mouth and pressed it and raped her and she became unconscious, but she has not levelled categorical allegations of rape in her statement Ex.PW1/B recorded U/S 164 of Cr.P.C. But when she has been examined in the court, as PW1, she has given contradictory statement. At once, she deposed that at 1.00am her MAMA i.e. the accused came to her cot, when he tried to put off her SALWAR. She woke and resisted his attempt, her MAMA put a cloth on her mouth and pressed it with hand and she does not know what happened thereafter, as she became unconscious and again she has deposed that she came to know about the GALAT KAAM done with her, when she felt pain, the accused inserted his male FIR No. 162/11 State Vs. Ramphal Page no. 32 of 48 ­33­ organ into her urinal organ and thereafter she became unconscious. Even during her cross­examination she has deposed that she became unconscious. When the accused put the cloth on her mouth. But in the considered opinion of this court, it is not probable that if a person put a cloth on the mouth of a person, he may become unconscious. Because, if the month of a person is shut with a cloth, the breath may be taken from the nostrils and if simultaneously the mouth and both nostrils of a person are shut forcibly. Then, in view of suffocation and the person whose mouth and nostrils are shut may die. But it is not alleged by the prosecutrix that her mouth and nostrils were shut with the cloth by the accused, simultaneously. so such statement of the prosecutrix does not inspire any confidence that in view of alleged putting of cloth on her mouth and pressing thereof, she could become unconscious.

27. It is an admitted case of the prosecution that Rohit i.e. the son of the accused who was born after about one year from the date of adoption of the prosecutrix by the accused was also sleeping in the same room, on the bed with the accused, on the FIR No. 162/11 State Vs. Ramphal Page no. 33 of 48 ­34­ night of the alleged occurrence, the age of the Rohit may be about 12 years and the prosecutrix has alleged in her statement recorded U/S 164 of Cr.P.C that she cried when the accused opened her SALWAR. But she has not levelled any specific allegation of rape therein. But in the considered opinion of this court had the prosecutrix cried, the son of the accused Rohit who was also sleeping in the same room, could awake. But it is not disclosed by the prosecutrix or any other prosecution witness as to whether the Rohit kept sleeping even after such screams of the prosecutrix. The Investigating Officer of the case is also found to be negligent, who did not bother to examine master Rohit, who could be the best eye witness to prove the alleged occurrence. But Rohit is neither examined by the police nor he is named in the list of witnesses. The occurrence is alleged to have taken place in house of the accused Ramphal. The Investigating Officer has also failed to examine any public witness living in the neighbourhood of the accused, who might have heard the alleged screams of the prosecutrix at the time of the alleged occurrence. Had the prosecutrix cried, the screams of the prosecutrix could attract to the neighbours of the accused. FIR No. 162/11 State Vs. Ramphal Page no. 34 of 48 ­35­ But IO has failed to examine any neighbour of the accused. So, in view of none examination of master Rohit and neighbourers of the accused, an adverse inference is liable to be drawn against the prosecution and, the non­joining of material witness Master Rohit and public independent witness is held to be fatal for the case of the prosecution. The occurrence is alleged to have taken place in the house of the accused. But the IO has prepared the site plan Ex.PW19/A. But she failed to show therein as to at what was the location of the cot in the room on which the rape is allegedly committed and what was the location of the bed in the room on which the accused and his son slept on the night of the occurrence.

28. In the case in hand, the occurrence is alleged to have taken place on dated 23.05.2011 at 1.00/1.30am. Whereas the FIR has been registered on dated 08.06.2011 and it is not the case of the prosecution that the prosecutrix was threatened by the accused with any lethal weapon. The occurrence is alleged to have taken place on dated 23.05.2011 at 1.00/1.30am. The prosecutrix in her first statement Ex.PW1/A has stated that in view of fear of loss of reputation, her parents did not disclose about the incident. But on FIR No. 162/11 State Vs. Ramphal Page no. 35 of 48 ­36­ dated 07.06.2011 in view of the pressure of the relatives and after due deliberation, 100 number was dialed. Whereas at the time of her cross­examination, prosecutrix has deposed that police was informed about the incident about 10­15 days after the incident, as all the relatives told her parents to not report the matter to the police. Thus, explanation of delay in registration of the FIR given the prosecutrix in her statement Ex.PW1/A and her statement recorded in the court on dated 21.09.2012 is found to be inconsistent, the delay in the lodging the FIR. The incident is alleged to have taken place on dated 23.05.2011 at 1.00/1.30am. Whereas the FIR has been registered on dated 08.06.2011.

29. No doubt, the conduct of the accused is also very material, after the alleged occurrence of the incident. The accused did not flee and he has surrendered in the court on dated 08.06.2011 i.e. on the date of registration of the FIR and since then, he is behind barrs. Had he committed the offence, he could flee.

30. It is not a matter of doubt that on the basis of sole testimony of the prosecutrix, if it goes unimpeached and beyond reasonable doubt. The conviction can be based, but in the case in FIR No. 162/11 State Vs. Ramphal Page no. 36 of 48 ­37­ hand there are material contradictions, inconsistencies improvements in the statement of the PW1, PW4 and PW10 and delay of 16 days in lodging of the FIR and withholding of material witnesses also create the clouds of suspicion in the testimony of the prosecutrix and other prosecution witnesses which force this court to draw an inference that the testimony of prosecutrix and other prosecution witnesses are not of such qualities which may be relied upon to convict to the accused, as the same suffer from several lacunae and serious contradictions therein.

31. The conduct of the accused is also very material, after the alleged occurrence of the incident. The accused had surrendered before a court on dated 08.06.2011. Had he committed the offence, he could flee.

32. IO has not recorded the statements of any of the neighbours, living in the neighbourhood of the accused. So in the absence thereof,non joining of any public witness is held to be fatal for the case of the prosecution.

33. In case Abbas Ahmed Choudhary Vs. State of Assam (2010) 12 SCC 115, It was observed by their lordship of FIR No. 162/11 State Vs. Ramphal Page no. 37 of 48 ­38­ Supreme Court that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court held:­ "Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would alway tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW­I."

34. In another case Raju Vs. State of Madhya Pradesh (2008) 15 SCC 133, their lordship of Supreme Court stated that the testimony of a victim of rape has to be tested as if she is an injured witness but cannot be presumed to be a gospel truth.

"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, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

FIR No. 162/11 State Vs. Ramphal Page no. 38 of 48 ­39­

35. In Rai Sandeep @ Deepu vs. State of NCT of Delhi, (2012) 8 SCC 21, their lordship of Supreme Court commented about the quality of the sole testimony of the prosecutrix, which could be made basis to convict the accused. It held:­ "In our considered opinion,the 'sterling witness' should be of a very high quality and caliber whose version should therefore, be unassailable. The Court considering the version of such witness shoudl be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross­ examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co­ relation with each and everyone of other supporting material such as the recoveries made, the weapons used the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be skin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as FIR No. 162/11 State Vs. Ramphal Page no. 39 of 48 ­40­ all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

36. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Supreme Court held:­ "It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."

37. In Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341 at page 343 it was held:­ "The entire prosecution case rested upon the evidence of Sarubai (PW2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the FIR No. 162/11 State Vs. Ramphal Page no. 40 of 48 ­41­ questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be like any other competent witness and there is likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well­settled principle we March proceed to consider the evidence of Sarubai (PW2).

38. In Panchhi v. State of U.P. (1998) 7 SCC 177 at page 181 Hon'ble Supreme Court observed:

"Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW1, he being a child witness. Accordingly to the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.
FIR No. 162/11 State Vs. Ramphal Page no. 41 of 48 ­42­
39. In Hamza v. Muhammedkutty, (2013) 11 SCC 150 at page 161 Hon'ble Supreme Court observed:
"The learned counsel for the State is right that the consistent version of PW1 is that A­1 and A­2 have committed murder of the deceased. But the High Court has rightly relied on the observations of this Court in Suresh v. State of U.P. [(1981) 2 SCC 569 : 1981 SCC (Cri) 559] that children mix up what they see and what they like to imagine to have seen. Glanville Williams says in his book The Proof of Guilt, 3rd Edn., published by Stevens & Sons:
"Children are suggestible and sometimes given to living in a world of make­believe. They are egocentric, and only slowly learn the duty of speaking the truth."

Hence, the proposition laid down by the courts that as a rule of practical wisdom, the evidence of child witness must find adequate corroboration, (Panchhi v. State of U.P. [(1998) 7 SCC 177: 1998 SCC (Cri) 1561].

(emphasis supplied)

40. Coming to the case in hand there are material contradictions, embellishments and inconsistencies in the statements of the PW1 prosecutrix, PW4 mother of the prosecutrix and PW5 father of the prosecutrix, PW10 sister of the prosecutrix. The testimony of the PW3,4,5 & 10 are not more than that of hearsay in nature and in their testimonies also suffer from material contradictions therein. The prosecutrix has alleged that she was raped on dated 23.05.2011 and the FIR has been registered on 08.03.2011. It is the admitted case of the FIR No. 162/11 State Vs. Ramphal Page no. 42 of 48 ­43­ prosecution that the prosecutrix had informed about the incident to her family members on the same day of alleged occurrence. No doubt that delay in lodging of first information report cannot be used as ritualistic formula for discarding the case of the prosecution and for doubting the authenticity. But, it puts the court on guard to search for and consider, if any explanation has been given, if given, whether it is satisfactory or not. If, the prosecution fails to explain the delay satisfactorily, and there is possibility of embellishment or exaggerations in the version of the prosecution, on account of such delay. Thus, the delay would be fatal to the case of the prosecution.

41. In the case of Puran @ Manoj Vs. State of Delhi reported in 186(2012) DLT 455 (DB), the division bench of the Delhi High Court was pleased to observe that :­ "Admittedly, the stabbing incident took place at about 8.30AM and according to the prosecution, the FIR was recorded only at 2.30PM. Thus, there was delay of six hours n recording the FIR.... It goes without saying that the FIR in a criminal case, particularly in a heinous crime like murder is a valuable material for the purpose of appreciating the evidence led at the time of trial. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR is not only bereft of the advantage of spontaneity, there is also danger that there may be introduction iof a coloured version or on exaggerated story. (Mehraj Singh v. State of UP, AIR 1999 SC 324)"

FIR No. 162/11 State Vs. Ramphal Page no. 43 of 48 ­44­ b. In the case of Thulia Kali Vs. State of Tamil Nadu, reported in AIR 1973 Supreme Court 501, the Apex court observed that :­ ".. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets benefit of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.... The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused­appellant upon it...."

42. Coming to the case in hand, the explanation given by the prosecutrix regarding the delay in registration of the FIR in her statement Ex.PW1/A and during her evidence recorded in the court are inconsistent and not satisfactory and in the absence of any cogent reason, the possibility of concoction and introduction of an afterthought version cannot be ruled out for such long delay of 16 days in the registration of FIR.

43. No doubt that the MLC of the prosecutrix reveals that her hymen is ruptured but it is not mentioned in the MLC of the FIR No. 162/11 State Vs. Ramphal Page no. 44 of 48 ­45­ prosecutrix that whether her hymen is freshly ruptured. But as the prosecutrix is admittedly married girl, on the day of alleged occurrence and the prosecutrix has admitted that she had gone to her matrimonial home so the possibility of such rupturing on hymen in view of physical relation with her husband or for any other reason cannot be ruled out. Even otherwise, the report of the FSL Ex.PW19/C also does not go to support the case of the prosecution. It is admitted fact that the prosecutrix was adopted by the accused, when she was less than one year of age and the prosecutrix lived in the house of the accused till the age of 13 years. It is also admitted fact that during her long stay in the house of the accused, no such incident had ever taken place. The prosecutrix has alleged that she had cried at the time of alleged incident. But had she cried the son of the accused namely Rohit who was also sleeping nearby could awoke. But master Rohit has not been examined and it appears to be improbable that a father would rape to a girl in the presence of her 11/12 years old son. So, the story of the prosecution appears to be not probable. The statement of the prosecutrix suffers from material contradictions, FIR No. 162/11 State Vs. Ramphal Page no. 45 of 48 ­46­ inconsistencies, improvements and embellishments therein and since, the accused was facing the charge of rape so, it was incumbent on the part of the prosecution to prove its case beyond any reasonable doubt that the accused had committed the offence U/S 376 IPC. The prosecutrix is a minor girl of about 14 years of age and her testimony is not corroborated with any independent witness. The accused has taken the plea that in view of dispute of the property inherited by him and the mother of the prosecutrix from Ms. Omni who is maternal grand mother of the prosecutrix and mother of the accused the false case has been registered against him.

44. Accused has examined Sh. Ram Kumar as DW1 and Sh. Om Parkash as DW2 and both these defence witnesses have deposed that the father of the prosecutrix had threatened to falsely implicate to the accused in view of dispute of the property and it is worthwhile to mention here that PW4 who is the mother of the prosecutrix, has admitted during her cross­examination that she and the accused had inherited the property from Smt. Omni and also stated that she had sold away her share in the property of Smt. FIR No. 162/11 State Vs. Ramphal Page no. 46 of 48 ­47­ Omni on dated 27.07.2012 i.e. during the pendency of the present case. Thus, the dispute of property between the accused and mother of the prosecutrix is admitted fact and the mother of the prosecutrix has admittedly sold away her share in the property of Smt. Omni during the period of incarceration of the accused in the present case. Therefore, in the absence of any independent and cogent evidence, the possibility of tutoring to the prosecutrix by her mother and false implication of the accused in view of the dispute of the property cannot be ruled out and in the absence of any corroborative evidence, it may be unsafe to rely upon the inconsistent, contradictory and embellished testimony of the prosecutrix who has been examined as PW1 and other prosecution witnesses.

45. It is well settled principle of law that if two views are possible, the one favourable to the accused has to be adopted. On consideration of the totality of the facts and circumstances, it can be unsafe to convict the accused, as there are so many infirmities, holes and lacunae in the version of the prosecution as discussed above.

FIR No. 162/11 State Vs. Ramphal Page no. 47 of 48 ­48­

46. In view of the above discussion, I am inclined to hold that since doubts are there in the version of the prosecution and benefit of doubts is liable to be given to the accused. Therefore, I am inclined to hold that the prosecution has failed to prove it's case beyond reasonable doubt. Accordingly, the accused is acquitted of the charge of rape. As per provision of Section 437­A of Cr.P.C the accused is ordered to be released on bail on furnishing of bail bond in a sum of Rs.10,000/­ with one surety of like amount for a period of six months. The accused shall ensure his attendance and appearance before the Ld. Appellate Court, if so required.

47. On filing of the bail bond/surety bond, the file be consigned to Record Room. The case properties are ordered to be disposed of after expiry of statutory period of filing of the appeal/revision.

Announced in the open court (PAWAN KUMAR MATTO) today i.e. on 05.12.2015 Additional Sessions Judge­01(West) Tis Hazari Courts, Delhi FIR No. 162/11 State Vs. Ramphal Page no. 48 of 48