Delhi District Court
State vs . Manish Kumar @ Guddu Kumar on 16 December, 2017
IN THE COURT OF MS. ANU GROVER BALIGA
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No. 106/2017
FIR No.482/16
PS Sarojini Nagar
U/s. 342/376/506 IPC
State Vs. Manish Kumar @ Guddu Kumar
S/o Sh. Sambhu Rai
R/o P150, Pillanji Village
Sarojini Nagar, New Delhi.
Date of Institution - 27.02.2017
Date of Committal - 01.04.2017
Arguments heard/Order reserved - 30.11.2017
Date of judgment - 16.12.2017
Final order - Acquitted
JUDGEMENT
1. The accused has faced trial in the present case for having committed the offences punishable U/s. 342, 376 and 506 of Indian Penal Code (hereinafter referred to as 'IPC').
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U/s. 342/376/506 IPC Page 1 of 18
2. Briefly stated the relevant facts are as follows:
(a) On 04.12.2016, at about 3.40 p.m., one information was received at
P.S. Sarojini Nagar that there is some quarrel happening at H.No.P150, Pillanji Village, Sarojini Nagar.
(b) Pursuant to the said information, HC Manoj Kumar of P.S. Sarojini Nagar was sent to the aforementioned premises and he, at about 5.30 p.m informed the Duty Officer at P.S. Sarojini Nagar that since the matter pertains to some sexual assault, a lady official be sent to the spot.
(c) Accordingly, SI Neetu Yadav reached the spot and there she recorded the statement of the prosecutrix wherein the following assertions and allegations were interalia made:
(i) That the prosecutrix is a native of District Jahanabad, Bihar and that she has been residing in a tenanted room at P150, Pillanji Village, for the last four months alongwith her family members.
(ii) That on 04.12.2016 while the parents of the prosecutrix were away on their jobs / duty and the brother of the prosecutrix had gone for his tuition classes and the prosecutrix was alone in the house and was cooking, at about 12:30 p.m., one Guddu, a boy residing in the neighbouring SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 2 of 18 premises, forcibly entered into the tenanted room of the prosecutrix, bolted the door from inside, switched off the lights and thereafter committed rape upon the prosecutrix.
(iii) It was also alleged that the accused had gagged her mouth with a dupatta during the forcible act and that the prosecutrix could be rescued only when her Mama's daughter one Veena Devi came to the premises of the prosecutrix to call her and started knocking at the door.
(iv) According to the prosecutrix, the accused threatened her that in case she reveals about the act committed by him to anybody, he will kill her and throw her from the building and stating so, he hid himself behind the door of the room and that as soon as the prosecutrix opened the door, he ran away.
(v) The prosecutrix then told about the incident to her cousin sister Veena, who then informed her mother and thereafter, the police was called.
3. Pursuant to the aforementioned statement given by the prosecutrix, the present FIR was registered, the accused was arrested and after investigation, the present charge sheet was filed.
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4. On the basis of the material available on record, the Ld. Predecessor of this court had framed charges against the accused for having committed the offences punishable under section 342, 376 and 506 IPC.
5. In support of its case, the prosecution has examined 5 witnesses in all. PW1 is the prosecutrix herself. She has in her deposition more or less reiterated the allegations made by her in her original complaint.
6. PW2 SI Neetu Yadav is the Investigating Officer of this case. She has interalia deposed about the recording of statement of the prosecutrix, taking her for medical examination, arresting the accused, getting his medical examination conducted, preparing the site plan and thereafter sending the exhibits of both the accused and the prosecutrix for DNA comparison.
7. PW3 Veena Devi is cousin sister of the prosecutrix. She has interalia deposed that on the date of incident at about 11 a.m/12 noon, she had gone to the room of the prosecutrix to call her as she wanted her to accompany her and her children to Sanjay Park for an outing. She has further narrated that she kept on knocking at the door of the tenanted premises of the prosecutrix for about 1015 minutes and finally when the prosecutrix opened the door she found that there was complete darkness in the room and the prosecutrix was appearing a little nervous and then she SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 4 of 18 noticed the accused leaving the room. She has further then narrated that thereafter the prosecutrix started crying and told her that the accused had committed rape upon her and was not allowing her to open the door.
8. PW4 Shree Chand is the landlord of the tenanted premises where the prosecutrix was residing alongwith her family.
9. PW5 Yogesh Tripathi is the Nodal Officer of Reliance Communication Ltd and he has placed on record the call detail records of the mobiles belonging to the prosecutrix and that of the accused.
10. It is further relevant to mention herein that during trial the Defence had admitted the registration of FIR in the present case, the recording of proceedings conducted by Ld. M.M u/s 164 Cr.P.C., the medical examination reports of the prosecutrix and that of the accused, the arrest memo of the accused and the FSL report dated 08.05.2017 prepared by Dr. D.S. Paliwal.
11. The deposition of all the aforementioned witnesses and the admitted documents were put to the accused and his statement was recorded u/s 313 Cr.P.C. In the said statement, the accused has interalia narrated that sexual intercourse on the date of the incident had happened with the consent of the prosecutrix and in fact on her insistence. According to him, the prosecutrix SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 5 of 18 knew him very well and used to frequently come to his tenanted premises and play alongwith his daughter. The accused has further narrated that 10 days prior to the date of the incident, his wife and daughter had gone to their native village and at about 11 a.m. on the date of the incident in the afternoon while he was sitting outside his tenanted room, the prosecutrix came and requested him to help her in getting down a suitcase from the top of the almirah which was kept in her tenanted premises. He has also stated that the prosecutrix told him that her parents are away and she needs the suitcase and on her request, he went alongwith her in her room and while he was getting down the suitcase, he heard the noise of the door being bolted and when he looked back, he saw that the prosecutrix had bolted the door of the room. He also gone on to narrate that the prosecutrix then came towards him and told him that she likes him and she then hugged him tightly and started kissing him. As per the statement tendered by the accused, it was the prosecutrix who herself took off her clothes and then led him to the bed and had sexual intercourse with him. He has further stated that after the sexual intercourse, he was lying alongwith the prosecutrix on the bed when the cousin sister of the prosecutrix namely Veena came knocking at the door and that it was the prosecutrix who then switched off the lights of the room and asked him to hide beneath the bed in the room. He has further narrated that he tried to hide beneath the bed but since there were many articles lying there, he could not do so and thereafter the prosecutix told him to stand behind the door of the room and SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 6 of 18 to slip away when she opens the door. Thus, the defence put forward by the accused is that the act of sexual intercourse between him and the prosecutrix was done with the consent of the prosecutrix and she gave a false complaint because both of them were caught red handed by her cousin sister.
12. The accused in his defence has produced one Ms. Poonam Devi, a lady who is admittedly residing in the same building as the accused and the prosecutrix. She in her deposition has interalia deposed that on 04.12.2016, after finishing her household chores, she had gone to meet the sister of the accused who also resides in the same building, and that she had sat with her for about 23 hours, from about 1011 a.m onwards. According to her deposition, the room of the prosecutrix at C3 is on the same floor as that of the sister of the accused at C5 and that she did not hear any noise emanating from there, during her stay at the premises of the sister of the accused. She has also deposed that she had, on one or two occasions witnessed the accused and prosecutrix speaking to each other and according to her, the prosecutrix used to frequently go to the house of the accused to play with his daughter. She has further gone on to depose that about 56 days before the incident, she had also overheard the mother and wife of the accused scolding him for speaking to the prosecutrix and telling him not to do so.
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13. The accused himself has also stepped into the witness box u/s 315 Cr.P.C and has reiterated the facts narrated by him in his statement u/s 313 Cr.P.C. Both the defence witnesses were duly crossexamined by Ld. Addl. PP.
14. After conclusion of the defence evidence, on behalf of the State Ld. Addl. P.P Sh. Kamal Akhtar has advanced arguments and on behalf of accused, Ld. Counsel Sh. Anilender Pandey has advanced final arguments.
15. Ld. Addl. PP has mainly contended that the deposition of the prosecutrix in the present case is absolutely credible and trustworthy and is also corroborated by scientific evidence namely the DNA report which clearly inculpates the accused. Ld. Addl. PP for the State has further submitted that the defence of the accused that the sexual intercourse between him and the prosecutrix took place with her consent is absolutely baseless and fabricated. He has submitted that once the accused has admitted that there had been sexual intercourse between himself and the prosecutrix on the date of the incident and prosecutrix has alleged that the same was without her consent, the presumption u/s 114 A Indian Evidence Act has to be taken against the accused and it was upon the accused to have proved that the sexual intercourse was with the consent of the prosecutrix. In this respect, Ld. Addl. PP for the State has relied upon the Judgment pronounced by the Hon'ble Supreme Court of India in the case titled as SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 8 of 18 Puran Chand Vs. State of H.P. and reported as (2014) 5 SCC 689. According to the Ld. Addl P.P, the accused has miserably failed to prove that the sexual intercourse between him and the prosecutrix had happened with the consent of the prosecutrix - his submission is that neither DW1 nor the accused himself, have been able to prove the said fact. His contention, therefore, is that the accused should be held guilty in the present case of all the offences for which he has been charged for.
16. Ld. Defence Counsel on the other hand, has vehemently contended that present is a case wherein the prosecutrix herself had seduced the accused to have sexual intercourse with her and that when she was caught red handed by her cousin, she at the instance of her mother, had filed this false complaint against the accused.
17. Ld. Defence Counsel has pointed out to various discrepancies in the statements of the prosecutrix tendered during the investigation and her deposition in court (the same will be referred to in detail, in the later part of this judgment)) and has contended that the deposition of the prosecutrix cannot at all be held sufficient to hold the accused guilty of any offences. His submission is that infact the admission of the prosecutrix in her cross examination that the present complaint was filed only when the accused and she were caught red handed by her maternal sister Veena absolutely proves that the sexual intercourse between the accused and her had been SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 9 of 18 done with her consent. It is also the submission of the Ld. Defence Counsel that the reliance of Ld. Addl. PP for the State on the judgment of Hon'ble Supreme Court of India in Puran Chand's Case is completely misplaced. According to Ld. Defence counsel, the said judgment was pronounced by the Hon'ble Supreme Court of India in the peculiar circumstances before it, namely, that the prosecutrix before it was 17 years of age and had attempted to commit suicide, and it is under those circumstances that the Hon'ble Supreme Court of India had held that the, defence, namely, that the incident had not taken place at all, could not be believed at all. It is further submitted by the Ld. Defence counsel that as per well settled principles of criminal jurisprudence, the onus of proving its case always rests upon the prosecutrix and that even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of offence it seems to establish and such onus never shifts. According to the Ld. Defence Counsel, the prosecution in the present case has failed to prove that the sexual intercourse between the prosecutrix and the accused had occurred without the consent of the prosecutrix and therefore, according to him, no presumption u/s 114A of the Indian Evidence Act can be drawn against the accused.
18. In support of his contentions, Ld. Defence Counsel has relied the following judgments: Narender Kumar Vs. State (NCT of Delhi) AIR 2012 SC SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 10 of 18 2281.
Amar Bahadur Singh Vs. St. of U.P. 2012 (4) SCC (Cri) 473. Deepak Vs. State of Hayana 2015 (4) SCC 762.
Kallu Kushwaha Vs. State of U.P. Criminal Appeal No.75 of 2014.
19. In rebuttal, Ld. Addl. P.P has contended that some minor discrepancies which have come to the fore during the deposition of the prosecutrix, are, hardly material and according to him, the same do not in any manner create a doubt on the credibility of the prosecutrix. In support of this contention, Ld. Addl. P.P has relied upon the judgment pronounced by the Hon'ble High Court in the case titled and reported as Gopal Vs. State of Delhi 2014 (1) JCC 789.
20. Having heard the Ld. Addl PP for the State and Ld. Defence Counsel, this court is of the considered opinion that the prosecution in the present case has failed to prove beyond reasonable doubt, the commission by the accused, of any of the offences for which he has been charged. This is for the reason that deposition of the prosecutrix on which the prosecution is relying to prove the aforementioned offences is not found to be sufficiently credible and trustworthy by this court.
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21. Considering first the commission of offence of rape, to prove the commission of this offence by the accused, the prosecution was not only required to prove that the accused had sexual intercourse with the prosecutrix on 04.12.2016, but also had to prove that this act was done by him without the consent of the prosecutrix. No doubt, though the DNA/FSL report on record, proves that sexual intercourse had taken place between the prosecutrix and the accused on 04.12.2016, in the considered opinion of this court, the deposition of the prosecutrix does not at all prove that the said sexual intercourse had taken place without her consent. There are many discrepancies between the statements tendered by the prosecutrix during investigation and that given in the court during trial which do raise a grave doubt on her credibility. The deposition given by the prosecutrix in the court also in itself is insufficient to hold that the sexual intercourse had taken place with without her consent.
22. At this stage, it becomes now relevant to discuss in detail the discrepancies pointed out by the Ld. Defence Counsel between the statements tendered by the prosecutrix during investigation and that given in court during trial. As narrated herein above, the prosecutrix in her initial complaint to the investigating agency Ex.PW1/A had alleged that while she was alone in her tenanted room and was cooking food, at about 12:30 in the afternoon, one boy whom she knows by the name of Guddu, entered her SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 12 of 18 tenanted room and immediately thereafter bolted the door of the room, switched off the lights of the room and then put a dupatta in her mouth and raped her. In the statement tendered u/s 164 Cr.P.C, Ex.PW1/H, however, instead of narrating that she was cooking food, the prosecutrix chose to state that she was watching TV in her tenanted room when she noticed that one boy was peeping in her room from behind the curtain at the door. Though she reiterated that the said boy then entered her room and then raped her, she chose to state before the Ld. M.M that she can only recognize the said boy from his face - in other words, she took a stand that she did not know the accused prior to that day. However, when for the third time she was required to give her statement, this time during trial, she again went back to her original complaint and stated that she was cooking food when the accused entered her room, but did not again specify the name of the accused. On being confronted with her statement u/s 164 Cr.P.C in her crossexamination, the prosecutrix narrated that her statement that she was cooking food is correct and that she was not watching TV she, however, failed to give any reason as to why she had then stated so before the Ld. MM. She also stated in her crossexamination that though the accused was not known to her at all, she knew that he was residing in the same building on the same floor as her room. Though she emphasized that prior to the present incident she had never met the accused and had never talked to him, she then went on to admit that the accused had come to her house on the date of the incident with her consent and that the SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 13 of 18 present complaint was filed when she and the accused were caught red handed by her maternal sister Veena. She also admitted that Pihu, daughter of the accused used to come to her room frequently for about 12 months prior to the present incident. Immediately after she made these admissions, she was again crossexamined by the Ld. Addl. PP, and she this time denied the suggestion that the accused had entered her house without her consent, but at the same time, admitted that the accused had established physical relations with her against her will. When after this re examination by Ld. Addl. P.P, she was again crossexamined by the Ld. Defence Counsel, she admitted that she had been on talking terms with the accused and meeting him for the last two months. She again admitted that the present complaint was made at the instance of her mother and that she of her own would not have filed the present complaint. She yet again gave another inconsistent statement namely that the accused had entered her tenanted premises and had told that he had come to her room to take some medicines.
23. What the aforementioned statements reflect is the inconsistency in the stands being taken by the prosecutrix. Her repeated flip flops make her deposition absolutely untrustworthy and has not been able to inspire any confidence in this court. The inconsistent statements made by her in deposition do indicate that she was a consenting party to the sexual intercourse and it does appear that when she and the accused were caught SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 14 of 18 red handed by the cousin sister of the prosecutrix, this case was got registered at the instance of the mother of the prosecutrix. The categorical admission of the prosecutrix that the accused had come to her house on the date of the incident with her consent and that the present complaint was filed when she and the accused were caught red handed by her maternal cousin sister Veena, cannot be brushed aside lightly at all, as contended by Ld. Addl. P.P. No doubt the prosecutrix is aged about only 2021 years, however, no other circumstance or material has come on record to even suggest that she had given the aforementioned statement in court under any duress or coercion. In the considered opinion of this court, the fact that the rape had been allegedly committed in the tenanted room of the prosecutrix only and that too, in the middle of the afternoon on a Sunday and the prosecurtrix did not even raise any hue and cry which could have made the occupants of seven other rooms on the same floor a little vigilant, makes the version of the accused, namely that it is the prosecutrix who had invited him to her room and thereafter, had consensual sexual intercourse with him, more probable (it has come on record through the depositions of PW4, the landlord of the premises and the IO PW2 that the premises P150 where the accused and the prosecutrix were both residing as tenants in separate rooms, had five floors and the first three floors were let out to various tenants and on each of the floors there were about eight small rooms). Though as pointed out by Ld. Addl. PP, the prosecutrix has taken a stand that she could not raise a hue and cry because the accused had gagged SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 15 of 18 her by putting a dupatta in her mouth, no such dupatta was ever handed over by the prosecutrix to the IO, at any time during investigation or even during the trial. Further, the fact that PW3 Veena has deposed that when the prosecutrix opened the door of her tenanted premises after about 15 minutes of PW3 knocking on her door, she did appear nervous and she started crying only after the accused went away from the spot, does point out that the sexual intercourse in all probability had taken place with her consent. This court is also of the considered opinion that no presumption that the sexual intercourse was done without the consent of the prosecutrix u/s 114A of the Evidence Act can be drawn against the accused as contended by the Ld. Addl. PP, for the said section makes it very clear that such a presumption can only be drawn where the case is covered under Clause (a), (b), (c), (d), (e) or Clause (g) of sub section (2) of Section 376 of IPC. The judgment pronounced by the Hon'ble Supreme Court in Puran Chand's case (Supra - the judgment relied upon by the Ld. Addl. PP) nowhere lays down that the sub section applies in all cases of rape. The observations made by the Hon'ble Supreme Court in the said case, as has been rightly contended by the Ld. Defence Counsel, were in the peculiar facts of the said case. Infact, the Hon'ble Supreme Court in another judgment pronounced in a case titled and report as Raju & Others vs. State of Madhya Pradesh (2008) 15 SCC 133, has categorically held that the presumption u/s 114A is extremely restricted in its applicability only to the Clauses namely (a), (b), (c), (d), (e) and clause (g) of 376 (2) IPC.
SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 16 of 18 Admittedly, in the present case, none of the said subsections are attracted. Further, in the said judgment, it has also been observed that insofar as the allegations of rape are concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. In the present case, there is infact no consistent version of the prosecutrix that the sexual intercourse had taken place without her consent. The deposition of the prosecutrix has to be read in its entirety and the prosecution cannot be allowed to rely upon only what the witness has stated in her examinationinchief. As discussed hereinabove in detail, the deposition of the prosecutrix is found to be completely insufficient to come to a definite conclusion that the sexual intercourse had happened between her and the accused without her consent. On the other hand, the accused who has stepped into the witness box appears to have withstood the test of crossexamination and his version appears to be more probable and credible. In such view of the matter, this court is of the considered opinion that the accused cannot be held guilty of having committed the offence of rape. On the same line of reasoning namely that the deposition of the prosecutrix is not credible and trustworthy, the accused also cannot be held guilty of the offences punishable u/s 342 or 506 IPC.
24. In view of the discussion hereinabove, the accused hereby stands SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 17 of 18 acquitted of all the offences for which he has faced trial. However, in terms of section 437A Cr.P.C., accused is hereby directed to furnish a fresh bail bond in the sum of Rs.10,000/ with one surety in the like amount.
Announced in Open Court on this 16th day of December, 2017 (Anu Grover Baliga) Court No.7, Lock UP Building ASJ / FTC / PHC / NDD New Delhi /16.12.2017 SC No.106/2017 FIR No. 482/16 PS Sarojini Nagar U/s. 342/376/506 IPC Page 18 of 18