Delhi District Court
State vs Gaurav Matta on 16 November, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.29/2012
Unique Case I.D. No.02402R0137582012
FIR No.58/2012
Police Station Geeta Colony
Under Section 376/506 IPC
State Versus Gaurav Matta
S/o Surender Kumar
R/o H.No. 514, Jheel Khurenja
Geeta Colony, Delhi.
Date of Institution : 18.05.2012
Date of judgment reserved : 08.11.2012
Date of judgment : 16.11.2012
JUDGMENT
Accused Gaurav Matta (in Judicial Custody) has been sent to face trial by the police of PS Geeta Colony in case FIR No. 58/2012 for the offences punishable under Section 376/506 IPC. 2 Briefly stating, the facts of the prosecution case are SC No.29/2012 State vs Gaurav Matta Page 1 of 32 that on 15.02.2012, complainant/ prosecurix Shrishti Jetli (PW6) came to Police Station Jagat Puri and gave a written complaint Ex.PW6/A to W/ASI Madhvi Bisht (PW4). In the complaint, she had stated that she was residing at Uttam Nagar along with her family. She was doing a course of animation at Rajouri Garden and was also working in an Orchestra. She knew Gaurav Matta for the last about 6 months and they had been roaming together. One day, Gaurav asked her to visit Haridwar along with him. Initially, she refused but on his insistence, she agreed. On 28.10.2011, accused Gaurav took her to Haridwar in the vehicle of complainant. On 29.10.2011 while returning, accused took her to Saharanpur and they stayed at Hotel Clarke international. In the night, accused ordered dinner which was consumed by the complainant and thereafter she felt heaviness in her head and she lay down on the bed and became unconscious. When she woke up, she saw that she was not having any clothes on her body and accused was also lying nude beside her. The complainant felt pain in her body and asked accused as to what he had done with him to which accused replied that he had sex with her. The complainant told accused that he had committed wrong act with her against her wish and she would make a complaint to police to which SC No.29/2012 State vs Gaurav Matta Page 2 of 32 accused made her understand on the pretext of marrying her. Thereafter, they came back to Delhi. The complainant asked accused several times to marry her but accused took the excuse that firstly he would manage his family members and only then would marry her. In between also, both of them had been meeting. Accused used to call her by making telephone calls and committed wrong act/rape with her on the false pretext of marriage in Santro Car bearing No. 9464 near his house. She also stated that accused also took about Rs. 3,00,000/ from her by showing his need. When complainant insisted accused for marriage, he flatly refused and also threatened to kill her. 3 IO verified the location of the spot and same was found to be in the area of PS Geeta Colony. Thereafter, IO along with prosecutrix reached PS Geeta Colony where prosecutrix was produced before the SHO. Medical examination of the prosecutrix was got done by Dr. Umender Kumar Singh (PW7) vide MLC Ex.PW7/A and referred the prosecutrix to Gynaecologist. After examination of prosecutrix, Doctor handed over sealed pulanda containing vaginal swab which was seized vide memo Ex.PW3/F. On the basis of complaint Ex.PW6/A of prosecutrix (PW6), ASI Madhvi (PW4) prepared rukka, Ex.PW4/A and handed over same to Duty SC No.29/2012 State vs Gaurav Matta Page 3 of 32 Officer HC Ishwar Dass (PW1) who registered the FIR Ex.PW1/A and made DD entry vide DD No. 11A Ex.PW1/B and also made endorsement Ex.PW1/C on the rukka. IO (PW4) prepared site plan Ex.PW4/B at the instance of complainant. IO along with Ct. Sampat Singh (PW3) went to the house of accused. Accused was interrogated who made disclosure statement Ex.PW3/C. Accused was identified by the complainant. He was arrested vide memo Ex.PW3/A and his personal search Ex.PW3/B was conducted. Accused got recovered Santro Car bearing registration No. DL3C AB 6494 while disclosing that he had committed sexual intercourse with the prosecutrix in the same. The said car was seized vide seizure memo Ex.PW3/D. Accused pointed out the spot vide pointing out memo Ex.PW3/E. 4 Further investigation of the case was assigned to SI Praveen (PW10). On 17.02.2012, IO along with Ct. Hansraj took accused to Saharanpur and reached Hotel Clarke International from where seized copy of visitors' register vide memo Ex.PW2/A and bills of Hotel vide memo Ex.PW6/D. Accused pointed out the said Hotel vide pointing out memo Ex.PW2/B. During investigation, IO seized the overcoat of the complainant vide memo Ex.PW6/B. On 19.04.2012, blood and semen samples of accused were seized vide SC No.29/2012 State vs Gaurav Matta Page 4 of 32 memo Ex.PW10/A. Accused was medically examined by Dr. Abhishek Biswas (PW8) vide MLC Ex.PW8/A and after his examination his blood and semen sample were seized vide memo Ex.PW10/D. During investigation, prosecutrix produced a CD containing conversation between her and accused of which transcription Ex.PW10/B was prepared.
5 An application Ex.PW5/C was moved by the IO for getting recorded statement of the prosecutrix under section 164 Cr.P.C. Sh. Pankaj Arora (PW5), the then Ld. M.M. recorded statement Ex.PW5/A of the prosecutrix under section 164 Cr.P.C. and gave certificate Ex.PW5/B regarding its correctness. Copy of statement Ex.PW4/C was supplied to the IO vide application Ex.PW5/D. During investigation, voice sample of accused was taken vide memo Ex.PW6/E. Sh. Nand Kishore (PW9), Manager of Hotel Clarke International produced copy of visitors' register as Ex.PW9/A and copy of driving licence of accused as Ex.PW9/B. 6 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where accused was supplied with the copies of documents of the prosecution and then, the case was committed to the Sessions Court for the trial of accused. SC No.29/2012 State vs Gaurav Matta Page 5 of 32 7 The charges under section 376 and 506 IPC were framed against the accused on 28.05.2012 which read as under : "That on 29.10.2011 and thereafter at Clarke International Hotel, Saharanpur and thereafter in your Santro Car near your house, within the jurisdiction of Police Station Geeta Colony, you committed rape upon the prosecutrix Srishti Jetli against her will and without her consent and thereby committed an offence punishable under Section 376 IPC and within my cognizance.
That after 29.10.2011, you extended threats to Srishti Jetli to kill her when she pressurized you to marry her and thereby committed an offence punishable under Section 506 IPC and within my cognizance."
8 Accused pleaded not guilty to the charges framed against him and claimed trial.
9 In support of its case, prosecution has examined ten witnesses. PW6 Srishti Jetli is the prosecutrix. PW1 HC Ishwar Dass was the duty officer in the Police Station at the relevant time. PW7 Dr. Umender Kumar Singh medically examined the prosecutrix, whereas PW8 Dr. Abhishek Biswas medically examined accused. PW9 Nand Kishore was the Manager of Hotel Clarke International, Saharanpur. PW2 Ct. Hans Raj and PW3 Ct. Sampat Singh remained SC No.29/2012 State vs Gaurav Matta Page 6 of 32 associated with the investigation of the case carried out by Investigating Officers, PW4 W/ASI Madhvi and PW10 SI Praveen. PW5 Sh. Pankaj Arora, the then Ld. M.M. recorded statement of the prosecutrix under section 164 Cr.P.C.
10 The statement of the accused has been recorded under Section 313 Cr.PC in which he has stated that he is innocent and has been falsely implicated in the present case. He has stated that prosecutrix went to Haridwar with him in her own car with her own free will and stayed with him as per her wishes and desire. He further stated that prosecutrix accompanied him to Saharanpur and stayed in hotel out of her own free will and consent. He further stated that prosecutrix had sexual intercourse with him in the hotel room at Saharanpur out of her own free will, consent and desire. He further stated that his physical relations with prosecutrix were all due to consent and desire of prosecutrix. He denied that he proposed to marry the prosecutrix. Accused opted not to lead any evidence in his defence.
11 I have heard Shri Ashok Kumar, Ld. Addl. PP for the State and Shri Pankaj Thareja, Ld. counsel for the accused. I have carefully gone through their submissions and the record of the case. SC No.29/2012 State vs Gaurav Matta Page 7 of 32 12 In the case of the offences under Section 376 IPC, the statement of the girl is the most important evidence. Her statement alone is sufficient for the prosecution to establish its case. Hon'ble Supreme Court in case of State of Punjab Vs. Gurmit Singh (Reported in AIR 1996 SC 1393) has held that the testimony of a victim of sexual assault needs no corroboration and conviction can be founded on her testimony alone unless there are compelling reasons. It was observed that the Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.
13 I have also gone through the ratio of judgment in case of Rajoo & Ors. Vs. State of M.P. 2009 (1) RCR (Criminal) 310 in which it was observed that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. 14 In view of observations made by Hon'ble Apex Court in the above judgments, I am of the opinion that following circumstances are required to be taken into consideration: SC No.29/2012 State vs Gaurav Matta Page 8 of 32
(a)Testimony of prosecutrix
(b)Medical evidence
(c)Corroboration
(d)Complaint of incident
(e)Information of rape given by accused
(f)FIR
(g)Threats to prosecutrix Testimony of prosecutrix
15 To prove the allegations of rape committed by accused upon the prosecutrix, the prosecution has examined the prosecutrix as PW6. In her examination in chief, prosecutrix (PW6) has deposed that she knew accused Gaurav Matta from last about six months before the incident through her friend Hema. Thereafter, they became friend of each other. She was having soft corner for accused and they all friends planned to go to Haridwar. Her friend Hema also had to go to Haridwar while some friends of accused had to go there, but somehow no one came to them to go to Haridwar. She further deposed that on 28.10.2011 in the evening, she and accused left for Haridwar by her Swift Car. They reached Haridwar and took a room in hotel. On 29.10.2011 in the noon time, they left the hotel of SC No.29/2012 State vs Gaurav Matta Page 9 of 32 Haridwar. Meanwhile accused told her that his maternal uncle was residing in Saharanpur and he had to go his maternal uncle's house. She refused to accompany accused, but accused pressurized her to accompany him and made promise also. Prosecutrix further deposed that under pressure of accused, she accompanied him and reached Saharanpur where he called his maternal uncle. Maternal uncle of accused reached there where accused had some conversation with his uncle. After 5/6 minutes, accused came to her and told that he would stay in Saharanpur itself and he forced her also. Prosecutrix refused to stay at Saharanpur and told the accused to get her sit in a bus for Delhi and deliver her car later on. Again accused made same promises with her and she was forced to stay in Saharanpur. Thereafter, they started searching some hotel. After sometime, accused reported that rooms were not available in hotels and they could get room in hotel only if they represent themselves as husband and wife. Thereafter, they reached Hotel Clark International where accused showed prosecutrix as his wife. Prosecutrix further deposed that in the hotel room, accused placed order for food and asked her to get fresh. Prosecutrix went to bathroom, got herself fresh and when she came out, she saw that accused was taking meal. Prosecutrix also SC No.29/2012 State vs Gaurav Matta Page 10 of 32 took meal. After taking meal, she felt tiredness and her body stop functioning and then she laid. Accused also laid. She could not say what had happened thereafter. Prosecutrix further deposed that in the morning, there was bell and she found herself nude. Accused opened the door and somebody entered the room. She could not find out who was that person. She also found accused nude and wearing towel around his body. Prosecutrix shouted and covered her body with the bed sheet and her body was feeling pain. She felt pain in her internal part/vagina. "She asked accused as to what he had done with her", to which accused told that he had done wrong act with her because had he proposed, she would not have agreed to marriage. Prosecutrix further deposed that they left the hotel of Saharanpur and returned back to Delhi. After their coming back, they used to call and talk with each other. She further deposed that accused did not perform marriage with her and then she made complaint Ex.PW6/A to the police. She was medically examined. She accompanied the investigating officer and pointed out the place where accused took her in Santro Car. Site plan Ex.PW4/B was prepared at her instance. Thereafter, IO got signed some papers from her i.e. disclosure statement Ex.PW3/C, arrest memo Ex.PW3/A, personal search memo SC No.29/2012 State vs Gaurav Matta Page 11 of 32 Ex.PW3/B and pointing out memo Ex.PW3/E. She had produced her black colour overcoat to the police which was seized vide memo Ex.PW6/B. She produced Compact Disc (CD) containing voice and transcription of talk between her and accused which was seized vide memo Ex.PW6/C. She had also produced bills of hotel which were seized vide memo Ex.PW6D. She further stated that voice sample of accused was taken in her presence vide memo Ex.PW6/E. She was called in court for recording her statement under Section 164 Cr.P.C. Ex.PW5/A. She stated that she did not know anything more about this case.
16 Prosecutrix (PW6) resiled from her earlier statement made to the police and was declared hostile by the prosecution and then crossexamined by Ld. Addl. PP for the State. In her cross examination by Ld. Addl. PP, prosecutrix has denied having stated to the police that whenever she insisted for marriage, accused used to demand money or that he had taken Rs.3.50 lacs from her. She further denied that since she had refused to give money to accused, therefore, he refused to marry her. Prosecutrix further "denied having stated to police and doctors that accused Gaurav had sexually assaulted her and committed rape against her consent". SC No.29/2012 State vs Gaurav Matta Page 12 of 32 She admitted that she had been the consenting party to the application moved by the accused for quashing of FIR.
17 During crossexamination by Ld. Defence counsel, prosecutrix "admitted that nothing had been done with her without her consent or against her will".
18 As per the law laid down in Gurmeet Singh's case (supra) and Rajoo's case (supra) no corroboration to the testimony of prosecutrix is necessary, if it is found to be reliable and trustworthy. In the present case, the only incident of rape deposed by the prosecutrix in her statement is at the hotel in Saharanpur, but that statement of the prosecutrix is also not sufficient to say that any rape was committed upon her in view of the fact that she took Uturn and admitted that "nothing had been done with her without her consent or against her will". In her deposition, prosecutrix (PW6) has stated that while stay in the hotel at Saharanpur, accused ordered food and after taking meals, she felt tiredness and then she laid on the bed. She stated that on the next day morning when she woke up, she shouted and asked accused as to what he did with her and then only accused told her that he had done wrong act with her. The prosecutrix has not stated specifically that rape was committed on her forcibly. The SC No.29/2012 State vs Gaurav Matta Page 13 of 32 knowledge of commission of rape upon the prosecutrix is based upon the information given to her by the accused, which fact has been denied by accused in his statement under Section 313 Cr.P.C. and the fact remains that she admitted in her crossexamination that nothing had been done with her without her consent or against her will. 19 Prosecutrix deposed that she was having pain in her internal part/vagina, but the MLC Ex.PW7/A of the prosecutrix does not support the testimony of prosecutrix. In the MLC Ex.PW7/A, it is mentioned that there was "no external injury on the private part" of the prosecutrix. It is also mentioned that the "vaginal cavity admits two fingers loose". The medical report of the prosecutrix also does not corroborate the testimony of the prosecutrix that she was raped by the accused. Even, the prosecutrix during her crossexamination demolished the case of prosecution and changed her track while stating that she was the consenting party.
20 As per testimony of the prosecutrix, her conduct is also doubtful. Firstly, she stated that she was raped by the accused in the hotel room at Saharanpur, but then she stated that after returning back to Delhi, she and accused used to call each other and have talk. It is highly improbable that the victim who had been raped is on SC No.29/2012 State vs Gaurav Matta Page 14 of 32 visiting terms with the culprit. She also stated that when accused refused to marry her, she lodged complaint with the police. Prosecutrix kept on changing her version every now and then. In examination in chief dated 13.08.2012, she was stated that rape was committed upon her at a hotel at Saharanpur. While in the examination dated 06.10.2012 she changed her version by stating that she was the consenting party and specifically admitted that nothing had been done with her without her consent or against her will. 21 The conduct of the prosecutrix is also to be seen from the fact that in the present case she approached Hon'ble High Court along with accused for quashing of FIR while mentioning that she went to Haridwar with accused out of her own free will and consent. She also mentioned that she had physical relation with accused at Haridwar. She also mentioned that in hotel at Saharanpur, she had physical relation with accused without any threat and pressure. 22 The testimony of prosecutrix shows that she was the consenting party and had physical relations with accused out of her own free will and there was no pressure upon her to engage in such physical relations with accused. She remained with accused in Haridwar and Saharanpur where she had physical relations with SC No.29/2012 State vs Gaurav Matta Page 15 of 32 accused. It is worthwhile to mention that in the entire testimony, prosecutrix has not uttered any single word that any incident of rape was committed with her within the territory of Govt. of NCT of Delhi. As per her testimony, only rape was committed upon her at Saharanpur. In her entire testimony she had stated the incident of rape only once i.e. at Saharanpur. But during her crossexamination she stated that nothing had been done without her consent or against her will.
23 It has been argued by Ld. Addl. PP for the State that the consent of the prosecutrix cannot be said to be free inasmuch as accused promised to marry her, therefore, under misconception of fact she was induced to have sexual intercourse.
24 However, this contention runs contrary to the evidence in the Court. Prosecutrix (PW6) in her deposition is specific that she and accused were friend for the last six months prior to incident. They started meeting and developed intimacy. According to her accused wanted to marry her. Accused used to meet her, they used to talk with each other and roam. She also stated that she went to Haridwar with accused in her own car and after returning from Saharanpur too, they had been making calls and talking with each SC No.29/2012 State vs Gaurav Matta Page 16 of 32 other. According to her, accused committed sexual intercourse with her on number of occasions. In her crossexamination, prosecutrix admitted that nothing had been done with her without her consent or against her will. From this testimony of prosecutrix, it is clear that prosecutrix (PW9) and accused were known to each other since quite some time; they had been meeting each other; they became friends; used to roam and thus developed intimacy. Even as per medical evidence, there was no external injury on the private part of the prosecutrix and her vaginal cavity admits two fingers loose, which shows that she was indulged in sexual intercourse and there was no forcible rape upon her person. Cumulative effect of aforesaid evidence is that the prosecutrix had consented to the sexual intercourse.
25 Consent of the prosecutrix is also apparent from the fact that during the course of crossexamination, she admitted that she had been the consenting party to the application moved by accused for quashing of FIR. It is also an admitted fact that prosecutrix approached Hon'ble High Court for quashing FIR in which she mentioned that nothing was done against her will or without her consent.
SC No.29/2012 State vs Gaurav Matta Page 17 of 32 26 So, from the abovementioned facts and circumstances it is established that the prosecutrix being a major girl, was a consenting party in having sexual intercourse with the accused. The prosecution has failed to prove on record that rape, if any, was committed by the accused under inducement of marriage or otherwise. In similar circumstances Hon'ble Apex Court in case titled Deelip Singh @ Dalip Singh vs State of Bihar AIR 2005 SC 203 has held that where accused committed rape on the prosecutrix by promise to marry but marriage did not materialize due to family pressure or some other reasons, accused could not be held guilty for offence of rape. Facts of the said case were that the prosecutrix had stated that accused raped her forcibly without her consent and prosecutrix had intercourse with the accused several times thereafter. In that context, it was held that prosecutrix was a consent party inasmuch as if the rape was committed by the accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. 27 I have gone through ratio of judgment in case of Uday vs State of Karnataka AIR 2003 SC 1639 in which it was held that where prosecutrix gave consent to sexual intercourse with a SC No.29/2012 State vs Gaurav Matta Page 18 of 32 person with whom she was deeply in love on a promise that he would marry her on a later date, such consent can not be said to be given under misconception of fact. Thus, from the testimony of the prosecutrix (PW6), it is clear that no overt act of rape has been imputed or proved against accused.
28 The testimony of prosecutrix (PW6) is not reliable and trustworthy to say that rape was committed upon her by the accused against her will and without her consent. On the one hand she stated that her information regarding commission of wrong act is based upon the information given by accused when she woke up in the morning in the room of hotel at Saharanpur, but on the other hand she changed her stand and admitted that whatever happened with her was out her own free will and nothing had happened against her will or without her consent. She categorically stated that she accompanied the accused to Haridwar and Saharanpur without any pressure and had physical relations with her without any pressure. She even admitted that she had been talking and meeting accused after the incident of Saharanpur. This conduct of the prosecutrix casts a doubt about the allegations levelled against the accused. Even there is no corroboration to the testimony of prosecutrix. The medical evidence SC No.29/2012 State vs Gaurav Matta Page 19 of 32 also suggests that the prosecutrix was habitual in sexual intercourse and there was no external injury on her body including private parts. 29 In view of the aforementioned circumstances of the case, I am of the considered opinion that the prosecution has failed to make out any case of commission of rape by the accused upon the prosecutrix (PW6).
Medical evidence 30 The medical evidence does not support the case of prosecution and the testimony of prosecutrix to the effect that there was any forcible rape upon the person of prosecutrix. In her testimony, prosecutrix (PW6) stated that she was raped by accused in the hotel room at Saharanpur. She also stated that when she woke up in the morning she felt pain in her body as well as in her private part/ vagina.
31 It is apparent from the record that the prosecutrix (PW6) was medically examined in hospital vide MLC Ex.PW7/A. The MLC Ex.PW7/A of the prosecutrix does not support the testimony of prosecutrix that there was any forcible rape upon her. In the MLC Ex.PW7/A, it is specifically mentioned that there was "no external injury on the private part" old or fresh. It is also mentioned SC No.29/2012 State vs Gaurav Matta Page 20 of 32 that the "vaginal cavity admits two fingers loose". So, from the medical report of the prosecutrix, it has not been established that there was any forcible rape upon her. Had it been so, there must be some injury marks on her body, but as per her MLC, there was no external injury mark on her body what to say on the private part of the prosecutrix. The medical report of the prosecutrix does not corroborates the testimony of the prosecutrix that she was raped. Even, the prosecutrix during her crossexamination demolished the case of prosecution and changed her track while stating that she was the consenting party.
32 So, from the above discussion, I am of the considered opinion that the medical evidence is of no help to the prosecution to establish that any rape was committed with the prosecutrix. Corroboration 33 As per the landmark judgment in Gurmit Singh's case (supra), no corroboration is required when the testimony of prosecutrix is found to be reliable and the testimony of prosecutrix alone is sufficient to base the conviction. It has so been held in Rajoo's case (supra) wherein it was observed that if the testimony of prosecutrix is reliable, no further corroboration is required. SC No.29/2012 State vs Gaurav Matta Page 21 of 32 34 But in the present case, firstly the prosecutrix (PW6) herself demolished the case of prosecution. She kept on changing her version at one point or the other. In her complaint Ex.PW6/A made to the police she stated that firstly she was raped by accused in the hotel at Saharanpur and then at various places in Delhi on the false pretext of marriage. While deposing in the Court, prosecutrix varied in her testimony by stating that rape was committed only once in a hotel at Saharanpur and she had not stated anything with regard to commission of rape in Delhi. Then she resiled from her statement and admitted that whatever was done with her, it was with her consent and nothing wrong was done with her against her wishes or without her consent.
35 Secondly, there is no corroboration to the allegations of rape against the accused. The medical evidence in the form of MLC of prosecutrix does not support the allegations. As per MLC, there were no marks of injury fresh or old on the person of prosecutrix what to say on her private part. There is no other corroboration.
36 It is also apparent from the record that the overcoat of the prosecutrix was seized by the police vide memo Ex.PW6/B. It is SC No.29/2012 State vs Gaurav Matta Page 22 of 32 the case of the prosecution that the said overcoat was being worn by the prosecutrix at the time of commission of rape in hotel at Saharanpur allegedly containing semen stains of accused. It is also case of the prosecution that the said overcoat was sent to FSL for obtaining expert's opinion. But, no report of FSL has been placed on record by the prosecution to corroborate that any rape was committed upon the prosecutrix or the said overcoat was having semen stains of accused. There is no other evidence in the form of corroboration to establish the case of prosecution that rape was committed with prosecutrix.
Complaint of incident 37 Case of the prosecution is that the first incident of rape was committed upon prosecutrix in Hotel Clark International, Saharanpur on 29.10.2011. It has so been stated by the prosecutrix in her complaint Ex.PW6/A made to the police.
38 But the fact remains that the complaint Ex.PW6/A was made by the prosecutrix (PW6) to the police on 15.02.2012 i.e. after 3½ months of the incident dated 29.10.2011. She had not made any complaint to the police station at Saharanpur or to the hotel staff with regard to commission of alleged rape by accused. Even the SC No.29/2012 State vs Gaurav Matta Page 23 of 32 prosecutrix had not made any complaint with regard to said incident to her parents. No explanation has come on record with regard to nonmaking of complaint by the prosecutrix either on 29.10.2011 or immediately thereafter. Prosecutrix was having ample time during the said period of 3 ½ months to make complaint either to her parents or to the police, but she had not informed about the incident dated 29.10.2011 to any of them. It is not the stand of the prosecutrix that she was under any threat of accused which prevented her making complaint with regard to incident dated 29.10.2011. 39 In such a scenario, a doubt is cast upon the testimony of prosecutrix inasmuch as despite having sufficient time she had not made any complaint against the accused either to hotel staff or to police including her parents.
Information of rape given by accused 40 There is no statement of prosecutrix (PW6) in the present case to the effect that accused committed rape upon her while she was conscious or she was in her full senses when rape was committed upon her. As per testimony of prosecutrix after taking meals at the hotel at Saharanpur, she felt tired and laid on the bed. On the next day morning when she woke upon, she found herself nude. SC No.29/2012 State vs Gaurav Matta Page 24 of 32 She also found accused lying nude next to her. She further stated that she was having pain in her body and also in her private part. She categorically stated that "she asked accused as to what he had done with her", to which "accused replied that he had sex with her". 41 It is neither the case of prosecution nor stated by prosecutrix that there was any forcible rape upon the prosecutrix. The information of commission of sexual intercourse with prosecutrix came to her knowledge only informing by accused. It is apparent from the record that accused in his statement under Section 313 Cr.P.C. has denied the same. Accused stated that prosecutrix had sexual intercourse with him in the hotel room at Saharanpur out of her free will, consent and desire. It is also important to mention that the prosecutrix resiled from her earlier statement and changed her version during the course of crossexamination. During crossexamination she admitted that nothing had been done with her without her consent or against her will.
42 All this shows that there are variances in the testimony of prosecutrix and the information of alleged rape of 29.10.2011 was based on the information delivered by accused, but there is no substance in it and it has not been established that accused SC No.29/2012 State vs Gaurav Matta Page 25 of 32 raped prosecutrix against her will or without her consent, rather it was a consensual intercourse which fact has been admitted by the prosecutrix during her testimony in the Court.
FIR 43 It has been argued by the ld. defence counsel that there is considerable delay in lodging FIR of the present case. It has been argued that alleged rape of prosecutrix at Saharanpur had taken place on 29.10.2011, but the FIR of the case was lodged on 16.02.2012 and no explanation has come forward as to why there is such a delay in lodging FIR.
44 On the other hand, Ld. Addl. PP for the State has argued that there is no delay in lodging the FIR. It is argued that after the incident of 29.10.2011, accused made promises of marrying the prosecutrix and under the said false pretext he committed sexual intercourse with her several time and only when accused refused to marry the prosecutrix, she came to the police station and got lodged FIR of the present case.
45 As per testimony of prosecutrix (PW6) and the complaint Ex.PW6/A made by her to the police, the first incident of rape was committed upon her on 29.10.2011 in a hotel room at SC No.29/2012 State vs Gaurav Matta Page 26 of 32 Saharanpur. Thereafter, after returning to Delhi, accused further committed rape upon her on the false promise of marrying her. Apparently, FIR of the present case was registered on 16.02.2012. There was inordinate delay in lodging the FIR with the police. No explanation whatsoever was offered by the prosecutrix for not reporting the incident to the police at the earliest. It is not the case of prosecutrix that she was threatened by the accused not to disclose the alleged commission of rape to anyone. Rather, it has come in the testimony of prosecutrix that she accompanied accused to Delhi after the incident of Saharanpur and thereafter also she had been meeting accused in Delhi.
46 No explanation has been given for the inordinate delay in lodging the report with the police. It is a settled law that if there is inordinate delay in lodging the complaint with the police, there is every possibility of exaggeration of allegations. In similar circumstances, in a recent judgment of our own Hon'ble High Court in case of Ramesh and Ors. Vs. State of the NCT of Delhi 2012 IX AD (Delhi) 15, it was held that delay in lodging the FIR often results in embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, SC No.29/2012 State vs Gaurav Matta Page 27 of 32 but danger creeps in of introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
47 In my considered opinion, nonexplanation of delay in lodging the FIR, creates doubt about the allegations levelled against the accused and put a dent to the case of prosecution. Threats to prosecutrix 48 So far as the allegations of giving threats to the prosecutrix (PW6) by accused is concerned, testimony of prosecutrix is completely silent. In the entire testimony, prosecutrix (PW6) has not stated anything that she was ever threatened by the accused either before the incident or thereafter. Even during the course of cross examination of prosecutrix by Ld. Addl. PP, nothing has come in the evidence that she was ever threatened by the accused. The prosecutrix admitted that she was the consenting party and nothing was done against her will or without her consent. So, the prosecution has failed to bring any evidence to substantiate the allegations of giving threats to the prosecutrix by accused.
Conclusion 49 The prosecution has failed to establish that any rape SC No.29/2012 State vs Gaurav Matta Page 28 of 32 was committed upon the prosecutrix by accused. There are several contradictions and variances in the testimony of prosecutrix. The prosecutrix has stated that whatever had done with her, it was out of her own free will and nothing was done against her will or without her consent. The conduct of the prosecutrix shows that after the incident dated 29.10.2011, she accompanied accused to Delhi and had been meeting him. Both of them used to make calls and meet each other. Even otherwise, the information of commission of rape received by prosecutrix is based upon the information given to her by the accused, but the accused in his statement u/s 313 Cr.P.C. has denied that he had ever informed the prosecutrix that he had committed rape on her, rather they had sexual intercourse at the hotel and prosecutrix was a consenting party to the same. The testimony of prosecutrix is not reliable and trustworthy to convict the accused for the commission of offence of rape.
50 From the medical evidence also, prosecution has failed to establish that there was any commission of rape upon the prosecutrix. As per MLC of the prosecutrix, there was no injury mark on her person either fresh or old what to say any injury mark on her private part. The MLC of prosecutrix does not suggest that there was SC No.29/2012 State vs Gaurav Matta Page 29 of 32 any forcible rape on her person. Even as per MLC, the vaginal cavity of prosecutrix admits two fingers loose, which shows that she was habitual in sexual intercourse. Even otherwise, prosecutrix in her testimony admitted that she accompanied accused to Haridwar and then to Saharanpur and had sexual intercourse with him out of her own free will.
51 Admittedly, no corroboration is required in rape cases and testimony of prosecutrix alone is sufficient to base the conviction, if the testimony of prosecutrix is found to be reliable, but in the present case as observed above, the testimony of prosecutrix is neither reliable nor trustworthy. There is no corroboration to the allegations of rape against the accused. The medical evidence in the form of MLC of prosecutrix does not support the allegations. As per MLC, there were no marks of injury fresh or old on the person of prosecutrix what to say on her private part. No report of FSL has been placed on record by the prosecution to corroborate its case that any rape was committed upon the prosecutrix or overcoat of prosecutrix was having semen stains of accused. There is no other evidence in the form of corroboration to establish the case of prosecution that rape was committed with prosecutrix. SC No.29/2012 State vs Gaurav Matta Page 30 of 32 52 Prosecution has further failed to establish that the prosecutrix was ever threatened by the accused. In the entire testimony of prosecutrix (PW6), there is not even a whisper of word to the effect that she was ever threatened by the accused. There is no other evidence on record to establish the charge of giving threats against the accused.
53 There is considerable delay in lodging the FIR of the present case. The first incident of alleged rape is dated 29.10.2011 whereas the FIR of the present case was registered on 16.2.2012 i.e. after about 3½ months of the first incident of alleged rape. No explanation has come on record as to what had prevented the prosecutrix in reporting the matter to the police immediately after 29.10.2011. The delay in lodging the FIR has not been explained which casts doubt about the allegations levelled against the accused. 54 In view of above discussion, I am of the considered opinion that the prosecution has failed to establish the allegations of rape against the accused. Prosecution has further failed to establish that any threats were extended by accused to the prosecutrix. Therefore, accused Gaurav Matta cannot be held guilty for the commission of rape upon the prosecutrix (PW6) and for extending SC No.29/2012 State vs Gaurav Matta Page 31 of 32 threats to her. Consequently, accused Gaurav Matta is hereby acquitted of the offences punishable under Section 376 & 506 IPC. 55 Accused is in judicial custody. He be released forthwith if not required in any other case.
56 Accused is directed to comply with the provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 16.11.2012 District Judge & ASJ, I/C (East)
Karkardooma Courts, Delhi
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