Delhi District Court
Karnataka Vs. Puttraj 2004 (1) Scc 475" ... vs . State Of on 7 June, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 784/2018
State V Oscar Eduardo Leon Salazar, s/o.
Jesus Eduardo Leon Larrahunclo, r/o.
Calle 3, 1493, Riveras, Alfaguara,
Jamundi, Columbia.
FIR No. 219/2018
U/s 376 of the Indian Penal Code
Police Station Pahar Ganj
Assigned to Sessions 10.10.2018
Charges framed on 02.11.2018
Arguments heard on 21.05.2019
Judgment pronounced on 07.06.2019
Decision Acquittal.
JUDGMENT:
1. The case of the prosecution is that, the Station House Officer of Police Station Pahar Ganj had filed a chargesheet before the court of ld. Metropolitan Magistrate vide FIR No.219/2018 dated 23.07.2018 u/s. 376 of the Indian Penal Code for the prosecution of accused Oscar Eduardo Leon Salazar and after compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) of the Indian Penal Code and directions of Hon'ble Supreme Court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 1/27 U.P. 2006, CRLJ. 2913", the name and identity of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. That, the case was registered on the handwritten complaint of prosecutrix made in Police Station Pahar Ganj on dtd. 23.07.2018 wherein she had stated that she came to India on the 1st of July 2018 for a three week holiday. She arrived in Delhi on Saturday the 21st of July 2018 at 5:30 a.m. from Pushkar and she travelled from Pushkar to Delhi by bus. She checked into (Kuldeep Hostel) New King guest house on Saturday the 21 st of July 2018. She had arranged to meet a friend that she had met in Jaisalmer. Her friend Alan was also staying at the hostel. When she arrived in the hostel her room was not ready so she slept on a couch downstairs until 9:00 a.m. and at 9:00 a.m. her room became available so she checked in. She contacted her friend Alan to say she would have a nap and a shower and she could meet him at noon for lunch. They agreed to go for lunch at a restaurant nearby. He asked could be bring someone from his room with him to lunch and she said that was no problem. This is when she met Oscar (accused herein) at the restaurant. He seemed very friendly and nice and she was happy for him to join their day plans. Before going to visit some tourist sites they stopped in the hostel as her friend Alan wanted to change his shoes. When they arrived at the hostel the staff requested for Oscar to leave the hostel as he had not booked for this night. They were rude to him and would not allow him to book for the night. They felt they were treating him unfairly and she spoke to the manager and made a booking for him through booking.com at that point, she thought he was a nice person. They went to visit Old Delhi and the Red Fort and while at the Red Fort she cut her foot and returned to the hotel by herself. She arranged to go for dinner with Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 2/27 Alan over Message and went to the room and collected them to go for dinner. They went to Connaught Place for dinner. They then returned to Paharganj and went to a place called Sam's Bar and had two beers. They then returned to the hostel which was nearby. Initially, they wanted to hang out together in the hostel but Alan said he was tired and wanted to go to sleep. In Sam's Bar, Oscar had told her he was attracted to her. She told him that she is happy to be friends with him but was not interested in him that way. He told her he respected that and it was fine.
3. That, she further alleged in her complaint that Oscar (accused herein) came to her room wanting to drink alcohol that he had. She told him that she was tired too. It was then she began to feel uncomfortable. He tried to kiss her. She told him that she was not interested and tried to reason with him. He said he respected that and he was sorry but still refused to leave. She become increasingly uncomfortable and got angry at him. She went to get her friend Alen upstairs. He suggested she could sleep in this room as he would be able to insure Oscar did not annoy her anymore. She told him that she was worried as it meant Oscar would be in her room, she had cash and her passport in the room and did not feel comfortable leaving them unattended. Alan came down with her and spoke to Oscar. He told him to leave him alone and to go back to the room and he apologized and left the room.
4. That, she further alleged in the complaint that she went to the bed but forgot to lock her door. She woke up and Oscar was on top of her and was holding her breast. She told him to leave and she was going to call the police. He left immediately. She did not know what happened while she was asleep but when she looked in her room she saw her underwear at the end of her bed on the Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 3/27 floor. She had her period and the sanitary pad was still attached to the underwear and her nightgown had also been torn at the top. There was blood stains at the side of the bed she was not sleeping. She felt really shocked and did not know what to do. Oscar returned to her room a short time later. He opened the door and said 'bye'. She told him she was going to scream and call the police if he did not leave immediately. He left the room. She did not know what happened while she was asleep but felt pain in her anus the next day and felt too much pain to go to toilet. She felt that he raped her. She went downstairs to reception and was very upset. She told her friend Alan and her friend Maddy over the phone. She also called two best friends in Vietnam by Phone. Yesterday, she was very upset and did not want to proceed with complaining against him. After thinking more about what happened she contacted her embassy and they arranged for her to come to the police station this morning. On the basis of this complaint W/SI Suman got registered the case at PS Pahar Ganj. Thereafter, the counselling of the prosecutrix was done by the NGO Counsellor. She visited the place of incident i.e. New King Guest House, Pahar Ganj, with prosecutrix and prepared site plan. Prosecutrix was medically examined in Lady Hardinge Medical College.
5. That, on dtd. 24.07.2018, statement of prosecutrix u/s 164 of the Code of Criminal Procedure was recorded by Ld. Metropolitan Magistrate.
6. That, during the investigation, Investigation Officer seized register of Hotel New King Guest House, Pahar Ganj, Delhi.
7. That, in the mid night of 25/2507.2018, accused was apprehended from Hotel Sallow International, Amritsar, Punjab and he was arrested in the case and he Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 4/27 was medically examined from Lady Hardinge Medical College Hospital.
8. That, after completing of investigation, chargesheet was filed in the court of ld. Metropolitan Magistrate. That after supply the copy of chargesheet to accused, the case file was sent to this court for trial as the offence u/s 376 of the Indian Penal Code is triable by court of Sessions.
CHARGE:
9. That, on the basis of material available on record as well as the evidence, collected by the I.O. during the course of investigation, this court vide order dated 02.11.2018 framed charge against Oscar Eduardo Leon Salazar for the offence punishable u/s. 376 of the Indian Penal Code to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
10. That, in order to prove its case, prosecution has examined 15 witnesses namely PW1 Prosecutrix 'N', PW2 SI Manmeet, PW3 Sh. Saddam Hussain, PW4 Ct. Pradeep Kumar, PW5 Dr. Akriti Gautam, PW6 Dr. Varun Kumar Katiyar, PW7 HC Rajender, PW8 SI Kuldeep Singh, PW9 HC Kapil Kumar, PW10 Ct. Veena, PW11 Dr. Muneesh, PW12 Ms. Neeti Suri Mishra, Ld. MM, PW13 W/SI Suman, PW14 SI Madan Lal and PW15 Ct. Arun.
PWs Name of the Nature of the Documents proved
Witness witness
PW1 Prosecutrix 'N' Victim Prosecutrix being victim of the
/complainant alleged sexual assault has testified about her complaint given to the police which is Ex.PW1/A as well Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 5/27 as making of her statement u/s 164 of the Code of Criminal Procedure, 1973 before Ld Metropolitan Magistrate Ex.PW1/F. PW2 SI Manmeet, Police witness This witness deposed that on the directions of SHO PS Pahar Ganj, he along with HC Jatinder, Ct.
Sachin and Ct. Mohit went to Amritsar in search of accused Oscar a Foreign National and was involved in the case of rape done in Delhi reached at Hotel Shallow International, Near Bus Stand, Amritsar City where accused had been staying in a room. He made enquiry from him and confirm about his identity by the paper i.e. passport etc. Thereafter, he brought the accused from Amritsar to Delhi and produced before the I.O. W/SI Suman for further investigation in the matter.
PW3 Sh. Saddam Public witness This witness deposed that he is working in Hotel New King as Hussain, Manager for last one year and on dtd. 30.08.2018, police had come to his hotel and seized the record of guest register regarding stay of Foreign National lady/prosecutrix in room no.203, the entry in the register was made in serial No.1800 by the prosecutrix who had checkedin in the hotel on 21.07.2018. He further deposed that accused Oscar was also staying in his hotel on that day in room No.302/04 and the entry of accused at serial No.1773, he had Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 6/27 checkedin in hotel on 19.07.2018.
He has proved the copy of the guest register vide Ex.PW3/A. He further deposed that police had seized the copy of the record of Guest Register and other documents regarding licence of their hotel vide seizure memo Ex.PW3/B. PW4 Ct. Pradeep Police witness This witness has proved arrest memo of accused vide Ex.PW4/A, Kumar, personal search memo of accused vide Ex.PW4/B and disclosure statement of accused vide Ex.PW4/C. This witness had taken the accused for his medical examination in Lady Hardinge Medical College where he was medically examined and the doctor had given him blood sample of accused along with sample seal which he gave to the I.O. who seized the same vide seizure memo vide Ex.PW4/D. In his presence, accused had also pointed out the place of incident i.e. room no. 203 in New King Guest House and I.O. has prepared pointing out memo vide Ex.PW4/E. PW5 Dr. Akriti Medical This witness has medically witness examined the prosecutrix vide Gautam, MLC Ex.PW5/A. She had mentioned history given by prosecutrix at portion A to A. PW6 Dr. Varun Medical This witness has medically witness examined the accused vide MLC Kumar Katiyar, Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 7/27 Ex.PW6/A. He had opined that there is nothing to suggest that patient is incapable of sexual intercourse.
PW7 HC Rajender Police witness This witness has proved copy of FIR vide Ex.PW7/A. He has also issued certificate u/s 65 B of Indian Evidence Act regarding correct contents of FIR vide Ex.PW7/B. PW8 SI Kuldeep Police witness This witness has prepared crime team report and gave to the IO vide Singh.
Ex.PW8/A. PW9 HC Kapil Police witness This witness has deposed that on dtd. 23.07.2018, he joined the Kumar investigation with SI Suman and went to the spot of incident at room No.203, 2nd floor, King Guest House, Delhi and there were some coins, hair lying on the bed and in the dustbin, some particles of like intoxicating substance and nails were lying and there was bed sheet, pillow, one tequila wine bottle was also lying there. In his presence, all these articles were separately sealed with her seal SJ in transparent polythenes by I.O.
on the instruction of crime team. In his presence, I.O. had sealed bedsheet and pillow in a clothed pullunda.
This witness further deposed that the victim of the case had also arrived at the spot and from her, IO seized her inner wear clothes like bra and panty which were also sealed in clothed pullunda with the Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 8/27 seal of SJ. One nightie of victim of red color was also sealed with the seal of SJ. This witness has proved seizure memo of coins vide Ex.PW9/A, seizure memo of particles vide Ex.PW9/B, seizure memo of nails vide Ex.PW9/C, seizure memo of hairs vide Ex.PW9/D, seizure memo of bra already Ex.PW1/B, seizure memo of bedsheet and pillow already Ex.PW1/C, seizure memo of nightie already Ex.PW1/D and seizure memo of Tequila bottle already Ex.PW1/E. This witness further deposed that on dtd. 14.08.2018, on the instructions of IO, he had taken sealed exhibits of this case along with sample seal from malkhana vide RC No.136/21/18 and deposited the same in the office of FSL and obtained acknowledgement from the office of FSL regarding receipts of exhibits. This witness has proved copy of RC register vide Ex.PW9/E and copy of acknowledgement vide Ex.PW9/F. PW10 Ct. Veena Police Witness This witness had taken the prosecutrix to Lady Hardinge Medical College for her medical examination and the doctor had given a sealed parcel containing sexual assault kit along with one sample seal. Then she took prosecutrix and said parcel to New King Guest House, Pahar Ganj, Delhi and gave parcel to the IO Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 9/27 who seized the same vide seizure memo Ex.PW10/A. PW11 Dr. Muneesh Medical This witness has conducted the witness medical examination of accused vide MLC Ex.PW11/A and his blood sample was taken with his consent. He deposed that no other fresh injury was found on him.
PW12 Ms. Neeti Suri Ld. This witness has recorded Mishra. Metropolitan statement of prosecutrix u/s 164 of Magistrate the Code of Criminal Procedure, 1973 vide Ex.PW1/F. PW13 W/SI Suman Investigating This witness has deposed about the Officer details of steps taken by her during investigation and proved various documents.
She has proved handwritten complaint of prosecutrix vide Ex.PW1/A. She reached at New King Guest House, Pahar Ganj, Delhi and met hotel manager and inspected room no.203, Guest House, Pahar Ganj, Delhi and from the room she seized bed sheets and pillow cover sealed in pullunda with a seal of SJ and seized vide seizure memo Ex.PW1/C. Some hair found on bedsheets and same were also seized in pullunda with the seal of SJ and seized vide memo Ex.PW1/D. Two coins were also sealed and seized vide seizure memo Ex.PW1/A. One bottle lying on the bed was examined by finger print expert and after that he has sealed the same in the pullunda with the seal of SJ and memo Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 10/27 Ex.PW1/E was prepared. Bra lying in the room was seized vide seizure memo Ex.PW1/B. Prosecutrix also took and gave her, her nighty and undergarment which were sealed in the pullunda with the seal of SJ and memo Ex.PW1/D and some nails were also seized vide memo Ex.PW1/C. Some particles of brown color (khakhi color) were also taken from dustbin and sealed in the pullunda with the seal of SJ seized vide memo Ex.PW1/B. W/Ct.
Veena had given her sealed pullunda of sexual assault kit of victim along with sample seal which she seized vide memo Ex.PW10/A. She also prepared site plan of the spot at the instance of prosecutrix vide Ex.PW13/B. During the course of investigation, she has got recorded statement of prosecutrix u/s 164 of the Code of Criminal Procedure, 1973. from Ld. Metropolitan Magistrate.
She has proved arrest memo of accused vide Ex.PW1/G and his personal search memo vide Ex.PW4/A. Accused was got medically examined from Lady Hardinge Hospital and blood sample of accused along with sample seal which she seized vide memo Ex.PW4/D. She has proved seizure memo of mobile of accused vide Ex.PW4/B and seizure memo of passport of accused vide Ex.PW4/C. Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 11/27 During the course of investigation, on dtd. 30.08.2018, hotel manager Saddam Hussain came to PS and provided copy of record of guest register with the copy of proof of identity i.e. copy of passport of accused and prosecutrix and a pen drive containing CCTV footage of date in question. She has proved all these records as well as pen drive and certificate u/s 65 B of Indian Evidence Act of Saddam Hussain which were seized by her vide memo.Ex.PW3/B and copy of guest register vide Ex.PW3/A and copy of prosecutrix vide Mark Z and Z1 and copy of passport of accused vide Mark 13/X2. She proved copy of Form C of prosecutrix vide Mark 13/X3 and copy of Form C of accused vide Mark 13/X4. She has proved certificate of Saddam Hussain u/s 65B of India Evidence Act vide Mark 13/X5. She has proved the fingerprint report collectively vide Ex.PW13/F and result of FSL vide Ex.PW13/H running into five pages.
PW14 SI Madan Lal Finger Print This witness has proved his Expert detailed report and specimen print Ex.PW13/F and enlarged photograph of chance print marked as Q1 vide Ex.PW14/A and the specimen print of accused vide Ex.PW14/B and the description report of his examination of both chance and specimen print vide Ex.PW14/C. Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 12/27 PW15 Ct. Arun Police Witness This witness on dtd. 23.07.2018 along with SI Kuldeep, Incharge, ASI Pawan, Finger Print expert had gone to the spot of incident at Hotel New King, Main Bazar, Pahar Ganj in room No.203 at 2nd floor. He had taken photographs at the spot of incident on the directions of incharge and IO of the case by use of digital camera and photographs were downloaded in CD and given to I.O. He has proved the CD vide Ex.PW15/A. He had also issued certificate regarding correct contents of digital photographs from his official camera in CD given to I.O.
vide Ex.PW15/B. This witness has identified all the images in CD vide Ex.PW15/A. STATEMENT OF ACCUSED U/S 313 OF THE CODE OF CRIMINAL PROCEDURE, 1973:
11. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and his statement was recorded u/s 313 of the Code of Criminal Procedure, 1973. Accused denied all the incriminating evidence against him. Accused claimed that he is innocent and he has not committed any offence. Accused has not preferred to lead any defence evidence.
ARGUMENTS:
12. Ld. counsel for the accused has argued and submitted that accused is innocent and he has not committed any offence.Case No.784/2018
State Vs. Oscar Eduardo Leon Salazar 13/27
13. Ld. counsel for accused further submitted that during her medical examination prosecutrix has stated to the doctor that she does not know what happened with her and in her cross examination carried out by ld. defence counsel, she deposed that she does not know what happened to her while she was asleep.
She believe that accused had done intercourse with her but she does not know whether it was by finger or by his penis. She has also deposed that she had mentioned in her complaint that she does not know what happened while she was asleep.
14. Ld. counsel for accused further submitted that there is unexplained delay in lodging the FIR and there is no scientific evidence on record against the accused and semen report also does not match with the accused. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
15. Per Contra, Ld. Addl. PP for the State has argued that testimony of prosecutrix is reliable and inspiring confidence.
16. Ld. Addl. PP for the State further submitted that prosecutrix has supported the facts and circumstances on all material aspects, as such, her testimony is reliable and can be relied upon. On the other hand, accused is not able to discharge the burden of presumption against him on the basis of testimony of prosecutrix why she had made allegations against him of rape and therefore, accused is liable to be convicted.
Case No.784/2018State Vs. Oscar Eduardo Leon Salazar 14/27 PERUSAL OF RECORD:
17. On perusal of record, it is revealed that on the complaint of prosecutrix Ex.PW1/A, present FIR Ex.PW7/A was registered against the accused.
18. Before reaching at any conclusion, let the relevant section i.e. 376 of the Indian Penal Code be reproduced, which is as under: Section 376 of the Indian Penal Code:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 15/27 any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] FINDINGS OF THIS COURT:
19. Having heard the arguments advanced by ld. Counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the prosecution witnesses, this court is of the considered view that prosecutrix has alleged in her handwritten complaint dtd. 23.07.2018 that on dtd. 21.07.2018, accused committed 'Rape' with the prosecutrix and upon her complaint, present case FIR was registered and her statement u/s 164 of the Code of Criminal Procedure, 1973 was recorded by the Ld. Metropolitan Magistrate and after framing of charge u/s 376 of Indian Penal Code against the accused, the prosecutrix was summoned to step in the witness box to depose against the accused and to prove the case of the prosecution and when the complainant/prosecutrix appeared in the court and in her testimony, she has stated that she is a PostGraduate in Applied Psychology Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 16/27 and on 1st July, 2018, she came to India landed in Delhi from Vietnam and she originally belong to Republic of Ireland. She traveled to Rajasthan and came back to Delhi on 21st July 2018 as she had a flight back to Vietnam on 22nd July 2018 and therefore, she stayed in New King Guest House, Pahar Ganj, New Delhi.
20. She further deposed that she became friendly with Alan Gonzalez in Jaisalmer, Rajasthan, who had also come to Delhi in her hotel but not with her and she arrived in the hotel at about 5 or 6.00 a.m. and at about 9.00 a.m. she was given a room no. 203 and she contacted Alan for planning to go sight seeing in Delhi and they decided to meet at 12.00 noon in a restaurant near hotel where she had stayed. Alan, also informed her that he had come in contact with one fellow and if he could bring said person with him for sight seeing, she agreed and accordingly, at about 12 noon, she went to the said restaurant in Pahar Ganj and after some time, Alan, along with another person came there and interacted with each other and planned to go for sight seeing.
21. It has also been deposed, they went to Old Delhi city first, she sustained injury in her foot by a glass and she left for her hotel room and at about 7 or 7.30 p.m., all of them, prosecutrix, Alan and Oscar Edwardo Leon Salazar (accused herein) went for dinner in a restaurant in Connaught Place, had a dinner together in a restaurant and thereafter, they all came to Pahar Ganj in a Sam's Bar and she consumed one and half bottle of beer, at that time, accused told her that he was interested in her and she told him, she just wanted to remain his friend and not interested in him and he also told him that it was 'Ok'. Accused had consumed some beer and some Taquila drink (whiskey) . Thereafter, they all came to the Guest House. Accused was also staying in New King Guest Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 17/27 House in the room of Alan and it was decided to meet again for some hang out in the area, so at about 10.00 p.m., Alan and Oscar Edwardo Leon Salazar (accused herein) were supposed to come to her room but Alan developed some stomach problem and only accused Oscar Edwardo Leon Salazar came to her room. He was carrying a bottle of "Taquila Whiskey" and he started telling her several things, like, she was sexy and she told him that she was not interested in him and he forcefully tried to kiss me and she had become uncomfortable and angry and she rushed upstairs to call Alan and Alan met her and told her that he was having big room, having six bed in it and she could stay in his room, so that he could protect her from accused's activities but she did not like the idea as she was having luggage with 400 dollars and passport in her room and she requested Alan to help her. Accordingly, Alan came downstairs in her room and accused was present in her room and in the said room Alan told accused to leave her alone and to go upstairs. Accused apologized to her and went upstairs to his room. She remained in her room and went for sleep in her room and forgot to lock the door of that room. While, she was asleep and suddenly woke up and found accused, on top of her holding her left breast on her bed in her room and he had torn her clothes which was her neck night gown and her underwear was also removed. She found lots of blood on her bed and she found her underwear was lying at the bottom of the bed. During that time, she was having periods (menses), hence, she was in a state of shock and she shouted upon accused to get out of the room or she would call the police. Then accused went away, but again after about 1520 minutes he again came into her room as he wanted to go Amritsar and he wanted to say her 'good bye' and she was surprised how the accused could behave in this manner and was not at all able to understand as how serious act he has done to her.
Case No.784/2018State Vs. Oscar Eduardo Leon Salazar 18/27
22. It has been further deposed that accused had done the act of 'Rape' against her wish and she was not willing for any act with him, as she told the accused number of times and accused had forced upon her as she was asleep at that time and when the accused left the room, she contacted her friend, who is also her coworker in Vietnam and informed her about this incident. She was very upset and she went to Alan's room and reported the matter to the police and on 23rd July 2018, police official came in her room and she had not disturbed the position in her room and she wanted to preserve the evidence of the incident and accordingly, police had inspected the room in her presence and she pointed out everything to the police officials and had given her bra (pinky white colour) to the police which she was wearing at the time of incident, it was seized vide seizure memo Ex. PW1/B bears her signatures at point 'A' and Police had also seized from the room the bed sheet (white colour) and pillow covers and seizure memo Ex. PW1/C was prepared bears her signatures at point 'A' and Police also seized her nighty gown of dark red (maroon colour) and undergarments and memo Ex. PW1/D was prepared bears her signatures at point 'A'. It has also been deposed that her statement u/s 164 of the Code of Criminal Procedure, 1973 was got recorded by Ld. Metropolitan Magistrate, the same is Ex.PW1/F bears her signatures at point 'A' on each page.
23. That, the Hon'ble Apex Court of India in case 'State of Rajasthan Vs. Babu Meena, (2013), 2 Scale 479,' held that the conviction can be based on the sole testimony of prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of the single witness, the conviction can be founded Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 19/27 without corroboration. This principle applies with greater vigour in case the nature of offence in such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of the single witness, the court has no option than to acquit the accused.
24. That, the Hon'ble Apex Court of India has observed in case 'Vinay Vs. State of Madhya Pradesh, (2010), 8 SCC, 191', that, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.
25. That, this court is very much conscious of the fact that evidence of the prosecutrix is required to be appreciated in a realistic human assessment. It is an established law of India that evidence of the prosecutrix did not require any corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. The law has been settled down by Hon'ble Apex Court of India in various judgments that evidence of the prosecutrix can be sole basis of conviction, provided testimony of the prosecutrix is worth of credence, believable and trustworthy.
26. That, the prosecutrix was cross examined by Ld. defence counsel for the accused and in the cross examination she had admitted that the room in which she was staying in the hotel was not having attached bathroom to it and there was common bathroom/toilet outside the room and her room was having a double bed. She also admitted that she was friendly with the accused as he was in their group but she was not excited to see him.
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27. It is worth mentioning here that in the cross examination carried out by ld. Defence counsel for the accused, prosecutrix has admitted that " I did not tell in my complaint to the police that I do not know what had happened, however, I had mentioned in my complaint I do not know what happened while I was asleep" and statement was confronted with the complaint made by prosecutrix Ex. PW1/A where it was so recorded.
28. The prosecutrix has also admitted in her cross examination that "It is correct that whatever has been written by the doctor in the MLC was described by her to lady doctor" and this court has gone through the MLC prepared by the doctor of Lady Hardinge Medical College and Smt. S.K. Hospital, New Delhi where prosecutrix has stated to the doctor in the alleged history of the incident that "She does not exactly reveals what happened" and not only this she has categorically admitted that " I do not know what happened to me while I was asleep. I believe that accused had done intercourse with me, but I do not know whether it was by finger or by his penis." As per the Indian Criminal Jurisprudence, the guilt of the accused is to be proved beyond every reasonable doubt and it is the foremost duty of the prosecution to prove the guilt of the accused beyond every reasonable doubt. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the criminal courts of India is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent and if the testimony of the prosecutrix Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 21/27 is unreasonable and inspire no confidence then the accused deserves the benefit of doubt and in this case, the prosecutrix herself is not sure that she was being raped by the accused as she had admitted that she was asleep and she has deposed that she believe that accused had done sexual intercourse with her and she does not know if the same was done by the accused and if the prosecutrix herself is not confident as to what had happened then her testimony cannot be considered as of sterling quality and cannot be relied upon and inspire no confidence and benefit of doubt is to be given to the accused.
29. The prosecutrix herself has also admitted in her cross examination that while drinking 2nd beer in the Sam's Bar with the accused she started to feel that alcohol might be effecting her and when they returned to the hotel, the accused had not booked the room where prosecutrix was staying. The prosecutrix herself has admitted in her cross examination that :
"It is correct that the accused was not having room booked after the evening in my hotel as he has to go to Amritsar. I and Alan were planning that the accused either should stay in Alan's room or in my room or in another room in the said hotel or in some other hotel. We also looked for room in Booking.com for accused stay. I booked room in the hostel of this hotel through online process. It is correct that after I booked room for accused through online process, accused and Alan were sharing the room booked by Alan. "
30. That, this court is also of the considered view that the prosecutrix herself has admitted that she had consumed two beers and started to feel that alcohol might effecting her and I.O. has placed on record the CCTV footage of the hotel where accused and the prosecutrix were staying in the night of the incident and Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 22/27 after gone gone through the same, this court has come to the conclusion that in the whole night prosecutrix come out from her room using wash room which was situated outside her room and gone upstairs to the room of Alan and the accused was moving in the corridor as well as going upstairs and downstairs and was seen to enter and come out from the room of the prosecutrix.
31. Since the prosecution has not been able to prove guilt against the accused beyond reasonable doubt and benefit of doubt is given to the accused.
32. Simultaneously, the court is very much conscious in respect of the Medical & scientific evidence as collected by the Investigating Officer during the course of investigation of present case FIR and the bed sheet, pillow cover as well as under garments of the prosecutrix were seized by the I.O. and were sent to FSL for expert opinion and the Director of FSL, Sector14, Rohini, Delhi, has placed on record FSL Report No.2018/B7555/1083 dtd. 29.01.2019 in respect of case property received with vide memo No.1441/SHO/Paharganj, New Delhi dtd. 14.08.2018 and in the said report it has been concluded by Sr. Scientific Officer (Biology), FSL, Delhi that DNA profile of male origin generated from the source of exhibit '4c' (Pillow coverplace of incident) is not similar with the DNA Profile of male origin generated from the source of exhibit '7' (liquid blood sampleaccused) and the prosecution has also not been able to prove the guilt of the accused by the medical as well as the scientific evidence and same has also not been corroborated by the version of the prosecutrix.
33. That, this court is also very much conscious that it is vital to note that if the statement of the prosecutrix fails to inspire confidence or is not worthy of credence then the same should not be the basis of conviction. The same was Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 23/27 reiterated by the Hon'ble Apex Court of India in "Sadashiv Ramrao Hadbe Vs. State of Maharashtra, (2006), 10 SCC, 92", wherein it has been held that:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
34. It is worth mentioning that the prosecution could have examined the Alan, friend of the prosecutrix to prove the conduct of the accused but prosecution has not been examined Alan as independent witness to prove the conduct of the accused.
35. That, as per law laid down by Hon'ble Apex Court of India that first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed and when an occurrence Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 24/27 is not reported for more than 32 days after the occurrence though the police station is only at a very short distance from the place of the occurrence then it is unsafe to base conviction upon the evidence. Reliance is placed upon Thulia Kali V State of Tamil Nadu, AIR 1973 S.C. 501.
36. That, in criminal trial, one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why, if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution.
Case No.784/2018State Vs. Oscar Eduardo Leon Salazar 25/27 Reliance is placed upon Dilawar Singh v/s State of Delhi, Criminal Appeal No.491 of 2002 decided on 05.09.2007 of Hon'ble Supreme Court of India.
That, the prosecutrix highly qualified and matured lady and she alleged that accused committed rape with her on 21.07.2018 whereas she had reported the matter to the police on 23.07.2018 and there is unexplained delay to lodge the FIR and she could have got registered the FIR immediately in the morning of 22.07.2018 but she did not lodge the FIR on the day of the incident and it also creates a doubt to the prosecution story.
37. The Hon'ble Apex Court of India, in case 'Krishan Kumar Malik Vs. State of Haryana, (2011), 7 SCC, 130', it has been held that "no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality." But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the accused guilty of the said offence. Indeed, there are several significant variations in material facts in her statement u/s 164 of Code of Criminal Procedure, statement u/s section 161of Code of Criminal Procedure, First Information Report and deposition by the prosecutrix in the court.
38. Therefore, in these facts and circumstances, this court is of the considered view that prosecution has not been able to prove its case as well as the charge of the offence u/s 376 of Indian Penal Code against the accused beyond reasonable doubt hence, this court has no option except to acquit the accused. Therefore, in Case No.784/2018 State Vs. Oscar Eduardo Leon Salazar 26/27 view of the aforesaid, accused Oscar Eduardo Leon Salazar is hereby acquitted from the charge u/s 376 of Indian Penal Code. Accused be released forthwith if not required in any other case.
39. In terms of section 437 A of the Code of Criminal Procedure, accused is directed to execute bail bond in sum of Rs.1,00,000/ with one surety in the like amount.
40. As prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
41. Every page of this judgment is signed by me.
42. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 07.06.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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