Delhi District Court
State vs Mr.Jitender And Another. -:: Page 1 Of 41 ... on 14 August, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
State
Versus
1. Mr.Jitender
Son of Mr.Ram Prakash,
Resident of A-270, Barat Vihar, Sector 15, Behind Shiv Mandir.
2. Mr.Raj Kapoor
Son of Mr.Ram Vilas,
Resident of E-85, Binda Pur, Ramesh Atta Chakki, Delhi.
First Information Report Number : 88/2012
Police Station Ranhola,
Under sections 376(2) (g), 342, 506 and 109 of the Indian Penal Code.
Date of filing of the charge sheet before : 16.07.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 06.08.2012.
in the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 08.08.2013.
Date of judgment : 14.08.2013.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Both the accused on bail.
Mr. B.N.Shah, counsel for both the accused persons.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
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Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola,
Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code.
State versus Mr.Jitender and another. -:: Page 1 of 41 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is allegedly subjected to unwanted physical contact by a perverted male, known to her.
2. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 2 of 41 ::-
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out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
3. Mr.Jitender and Mr. Raj Kapoor, the accused persons, have been charge sheeted by Police Station Ranhola, Delhi for the offence under sections 342, 506 and 376 (2) (g) of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 07.03.2012 at about 9:30 p.m. at Factory Furniture Near Duck Farm, Mohan Garden, Delhi within the jurisdiction of Police Station Ranhola, the accused persons had confined the prosecutrix (name withheld to protect her identity) along with Jeetu (juvenile facing trial before the Juvenile Justice Board); had extended threat to the prosecutrix; and all the accused persons had committed rape on the prosecutrix.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 16.07.2012 and after its committal, the case was assigned to the Court of the learned Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 3 of 41 ::-
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predecessor vide order dated 06.08.2012 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
5. After hearing arguments, charge for offence under sections 376 (2) (g), 342, 506 and 109 of the IPC was framed against the accused persons vide order dated 09.08.2012.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 19 witnesses i.e. HC Devnder Singh, who brought the register numbers 19 and 21 and proved their relevant extracts regarding the exhibits of the case, as PW1; HC Resham Pal Singh, the Duty Officer who had recorded the formal FIR of the case, as PW2; the prosecutrix as PW3; Mr. Vijender Singh, LDC who had brought the school record regarding the age proof of accused Mr.Jitender Sharma, as PW4; HC Vinod Kumar, who is a witness of investigation and who had taken the prosecutrix to Sanjay Gandhi Memorial Hospital for medical examination and is a witness of arrest of accused Mr.Jitender, as PW5; Ct. Jai Singh, who is a witness of investigation regarding accused Mr.Jitender @ Jeetu (juvenile), as PW6; SI Ranbir Kumar Sharma, Juvenile Officer, is PW7; Ct. Rajesh Kumar, who had sent by MHCM to obtain result from FSL which was not ready, as Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 4 of 41 ::-
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PW8; Mr. Mukesh Sharma, cousin of the prosecutrix, as PW9; Dr. M.Das, who had medically examined the accused Mr.Jitender, as PW10; Mr. Ram Surjeet Sharma, husband of prosecutrix, as PW11; SI Savita, who is the second Investigating Officer of the case who had filed the chargesheet of the case, as PW12; Dr. Rajesh, who had medically examined the prosecutrix, as PW13; Dr. Supriya Prashar, who had medically examined the prosecutrix, as PW14; Mr. Arjun Sharma, cousin of the prosecutrix, as PW15; Ct. Satbir Singh, witness of investigation and arrest of accused Raj Kapoor, as PW16; Ms. Sugandha Aggarwal, the learned Metropolitan Magistrate who recorded the statement of prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), as PW17; Ct. Nitesh, who deposited the case property to the office of FSL, as PW18; and ASI Sarita, who is the Investigating Officer of the case, as PW19.
7. The accused have preferred not to cross examine PWs 1, 2, 4, 6, 7, 8, 10, 12, 13, 14, 17 and 18 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
STATEMENTS OF BOTH THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
8. In their respective statements under section 313 of the Cr.P.C., both the accused persons have controverted and rebutted the entire evidence against him submitting that they are innocent and have been falsely implicated in this case.
Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 5 of 41 ::-
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9. Accused Mr.Jitender has submitted that the prosecutrix is his mother's cousin (meri Maa ki mameri behen hai). He was introduced to the prosecutrix and her husband Mr. Ram Sujit Sharma by Mr. Ram Prasad Sharma, father of the prosecutrix who in relation is like his maternal grandfather (Nana). He and Mr. Ram Sujit Sharma started a partnership since both of them are carpenters with Mr. Ram Prasad Sharma. His father Mr. Ram Prakash Sharma had given one room with toilet and bathroom to Mr. Ram Sujit Sharma and the prosecutrix on rent of Rs.1500/- per month. They lived there for two months but did not pay the rent when demanded and later he was falsely implicated in the present case.
10. Accused Mr.Raj Kapoor has submitted that his father is running a factory on rent at Factory Furniture Near Duck Farm, Mohan Garden, Delhi and he works in this factory as a carpenter. He had closed the factory in the evening on 06.03.2012 and did not go to the factory on 07.03.2012 and 08.03.2012 since it was closed for Holi. On 07.03.2012 at 9:30 p.m., he was at home and did not go anywhere.
11. Both the accused persons have preferred to lead evidence in their defence.
DEFENCE EVIDENCE
12. Both the accused persons have examined Mr.Mohd.Alam Khan, who is neighbour of accused Mr.Raj Kapoor, as DW1, Mr.Raju Sharma, who is Uncle of accused Mr.Raj Kapoor, as DW2, Mr.Ram Vilas Sharma, who is father of accused Mr.Raj Kapoor, as DW3, Ms.Amal Devi, Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
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who is Aunt of accused Mr.Jitender, as DW4 and Mr.Ram Prakash Sharma, who is father of accused Mr.Jitender, as DW5.
ARGUMENTS
13. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written submissions
14. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 376 (2) (g), 342, 506, 109 of the IPC submitting that the prosecution has been able to bring home the charge against the accused persons by examining its witnesses whose testimonies are corroborative and reliable.
15. The counsel for both the accused persons, on the other hand, has requested for their acquittal submitting that there is nothing incriminating against both the accused persons on the record. The evidence of the prosecutrix is not reliable as it suffers from various contradictions. There is delay in lodging of the FIR.
DISCUSSION, ANALYSIS AND OBSERVATIONS
16. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
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made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
17. Under this sphere, I now proceed to test the submissions of both the sides.
Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 8 of 41 ::-
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CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
18. The prosecution story unfolds on 20.04.2012, when the prosecutrix (PW3) along with her husband Mr. Ram Sujit Sharma (PW11) came in the PS Ranhola and told that three boys namely Mr.Jitender, Mr.Raj Kapoor and Mr.Jeetu had committed rape with her. Her statement (Ex.PW3/A) was recorded. IO ASI Sarita (PW19) prepared rukka and made endorsement (Ex.PW19/A) for registration of FIR (Ex.PW) at PS Ranhola. HC Vinod (PW5) was deputed for registration of FIR. The prosecutrix was taken to Sanjay Gandhi Memorial Hospital for medical examination where she was medically examined by Dr. Rajesh (PW13) and Dr. Supriya Prashar (PW14) vide MLC (Ex.PW13/A). The exhibits pertaining to the prosecutrix were seized vide seizure memo (Ex.PW19/B). After medical examination of the prosecutrix, IO along with prosecutrix came at the spot i.e. Furniture factory, plot no.1, Vikas Kunj. Prosecutrix pointed out the place in a room, where she was raped by all the accused persons. On her pointing out, site plan (Ex.PW19/C) was prepared. In the meanwhile HC Vinod reached at the spot with the copy of FIR, he handed over the same along with rukka to the IO. On 20.04.2012, IO along with the prosecutrix, her husband and HC Vinod reached at the house of accused Mr.Jitender i.e. A-270E, Sector-15, Bharat Vihar, Dwarka. Accused Mr.Jitender met the police team and was identified by the prosecutrix. Accused Mr.Jitender was apprehended and arrested. The arrest memo (Ex.PW5/A) and personal search (Ex.PW5/B) of accused Mr.Jitender were prepared and the disclosure statement (Ex.PW19/E) was recorded. Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 9 of 41 ::-
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Accused Mr.Jitender was taken to medical examination and was medically examined by Dr.M.Das (PW10) vide MLC (Ex.PW10/A). After medical examination IO received two pulendas and one sample seal and seized through seizure memo (Ex.PW19/D). On the next day, accused Mr.Jitender pointed the place of occurrence. Accused Mr.Raj Kapoor met the police team at the spot. Accused Raj Kapoor was also arrested and interrogated. His arrest memo (Ex.PW16/A) and personal search (Ex.PW16/B) were prepared. His disclosure statement (Ex.PW19/F) was also prepared. Thereafter accused Raj Kapoor was medically examined. On 23.04.2012, the statement of the proseuctrix under section 164 Cr.P.C. (Ex.PW3/B) was recorded by Ms.Sugandha Aggarwal, learned Metropolitan Magistrate (PW17) vide proceedings (Ex.PW17/A). Copy of the statement was given to the IO on the application of the IO (Ex.PW17/B). On 30.05.2012, SI Ranbir Junvenile Officer arrested the third accused Mr.Jitender @ Jeetu and he was produced before Juvenile Court. HC Devender Singh (PW1) produced the the register no.19 and proved its relevant extract regarding deposit of the case property by the IO in the malkhana (Ex.PW1/A) and sent the exhibits to the FSL vide entry in register number 21 (Ex.PW1/B).
On 17.05.2012, Ct. Nitesh (PW18) took the pulendas along with sample seal from the Malkhana of PS Ranhola and deposited the same at FSL Rohini vide RC No.65/21/12 and receipt of the same handed over to the MHCM.
19. As per the allegations of the prosecution, especially the statement of the prosecutrix under section 164 of the Cr.P.C., the accused Mr.Jitender along with co-accused Raj Kapoor and Jeetu had confined the Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
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prosecutrix on 07.03.2012 at about 9:30 p.m. at Factory Furniture Near Duck Farm, Mohan Garden, Delhi and on the above said date, time and place, the accused persons had extended threat to the prosecutrix and on the same day, the accused persons had raped on the prosecutrix.
IDENTITY OF THE ACCUSED
20. There is no dispute regarding the identity of both the accused persons who has been identified by the prosecutrix. It is also not in dispute that they were known to each other prior to the lodging of the FIR. They are also named in the FIR.
21. Therefore, the identity of accused Mr.Jitender and Mr.Raj Kapoor stands established.
AGE OF THE PROSECUTRIX
22. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint (Ex.PW3/A), her statement under section 164 of the Cr.P.C. (Ex.PW3/B) and her evidence before the Court, the prosecutrix has stated her age as 25 years.
23. Therefore, it is clear that the prosecutrix was above 18 years of age (major) at the time of the alleged incident.
Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
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VIRILITY OF THE ACCUSED
24. Accused Mr.Jitender has been medically examined by Dr.M.Das (PW10) vide MLC (Ex.PW10/A) wherein it is opined that "There is nothing to suggest that individual is incapable of performing sexual intercourse)"
25. This report indicates that accused Mr.Jitender is virile and is capable of performing sexual act and is capable of committing the act of rape.
26. However, the prosecution has failed to prove the MLC of accused Mr.Raj Kapoor and therefore his virility is not proved. Even otherwise, on perusal of MLC No.6504, E-6445 dated 21.04.2012 of accused Mr.Raj Kapoor (which is not proved by the prosecution), it transpires that he has not been medically examined to ascertain his virility and whether he is capable of committing the sexual act.
27. Due to the lapse of the prosecution in failure to get accused Mr.Raj Kapoor medically examined for testing his potency, it cannot be said that he is capable of performing the sexual act and is capable of committing rape upon the prosecutrix.
MLC OF THE PROSECUTRIX AND FSL REPORTS
28. The MLC of the prosecutrix (Ex.PW13/A) which is dated 20.04.2012 shows that the absence of hymen (she is a married woman) and mentions the history of sexual assault on 07.03.2013. Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
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29. The FSL expert has not been examined by the prosecution as the DNA test could not be conducted, as submitted by the Additional Public prosecutor on 13.02.2013.
30. It has been argued on behalf of the accused that no case of rape is established against the accused since the semen was not detected on the exhibits pertaining to the prosecutrix. However, this contention is not tenable as it cannot be ignored that the prosecutrix was medically examined after many days of the contact/rape and all alleged evidence may have been washed out of the body of the prosecutrix while easing herself.
31. Otherwise also, medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
DELAY IN FIR
32. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
33. It is claimed by the accused that the FIR has been lodged on 20.04.2012 at 19.35 hours while the allegations made by the prosecutrix are that she was raped on 07.03.2012, the same show that the delay is fatal. The delay in lodging of the FIR has been not explained by the prosecution.
Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 13 of 41 ::-
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34. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the fear of the accused and could not lodge the FIR immediately.
35. As per the complaint, Ex.PW3/A which is made on 20.04.2012, it is mentioned that the prosecutrix was raped on 07.03.2012.
36. The prosecutrix in her MLC (Ex.PW13/A) dated 20.04.2012 in the history has mentioned that she was sexually assaulted on 07.03.2012.
37. The prosecutrix in her statement under section 164 of the Cr.P.C. (Ex.PW3/B) has mentioned that the accused had raped her on 07.03.2012.
38. The prosecutrix in her evidence before the Court has deposed that the accused had raped her on 07.03.2012.
39. The FIR has admittedly been lodged on 20.04.2012 at 19:35 hours.
40. It may be mentioned here that no logical explanation has been furnished by the prosecution regarding what was the reason of the prosecutrix to wait till 20.04.2012 to make her complaint to the police. The claim that she was threatened by the accused cannot be said to a reason to wait for one month and 13 days as she was away from the accused also on Sessions Case Number : 03 of 2013.
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07.03.2012 and out of their control. She was safely with her family immediately thereafter and there was no reason for her not to disclose about the incident and report the matter to the police. This shows that there is a delay of one month and thirteen days made by the prosecutrix in approaching the police and a delay of same period in lodging the FIR.
41. PW11, husband of the prosecutrix, in his cross examination, has deposed that his wife told him about the incident on the next day. He has deposed that to protect the family honour, the FIR was not lodged.
However, no justified reason is disclosed by him for not lodging the FIR despite coming to know that his wife had been allegedly raped. If complaint could be lodged about a quarrel (not proved) then there was no reason why it could not have been lodged about rape.
42. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
43. It is not that every delay in registration of the FIR would be fatal Sessions Case Number : 03 of 2013.
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to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
44. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
45. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first Sessions Case Number : 03 of 2013. Unique Case ID Number : 02401R0317882012. FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 16 of 41 ::-
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information report does not in any way render prosecution version brittle.
46. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
47. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
48. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context Sessions Case Number : 03 of 2013. Unique Case ID Number : 02401R0317882012. FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 17 of 41 ::-
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also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
49. I find on perusal of the record that indeed the criminal action was swung into motion on 20.04.2012 while there is delay of one month and thirteen days. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged incident of 07.03.2012, she was meeting others. Even then, she preferred not to make any complaint of rape against the accused. No explanation is coming forth from the prosecution as to why she did not tell about the rape to her family, neighbours, friends and others with whom she may be in contact.
50. It is also an admitted fact that the prosecutrix did not report to the police immediately and even after returning home. She has claimed that she was under the fear of the accused. This appears to be also contrary to the record as she could call the police on 12.03.2012 when there was a quarrel between her, her husband and the accused and her husband was beaten and his MLC was prepared in DDU hospital, she could have easily disclosed about the incident of rape to others.
51. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
Sessions Case Number : 03 of 2013.
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52. Therefore, it can be said that the FIR was lodged after a delay of about one month and thirteen days which is fatal to the prosecution story. She had approached the police on 20.04.2012 i.e. with a delay of one month and thirteen days of the alleged incident of 07.03.2012. The delay has not been satisfactorily explained.
EVIDENCE OF THE PROSECUTRIX AND HER STATEMENTS
53. The prosecutrix, as PW3, has deposed on oath that two months prior to the date of incident, her husband had developed friendship with the accused Mr.Jitender who used to come very often to her house as her husband was in the same business i.e. carpenter (lakari ka kaam). Accused Mr.Jitender is distant relative from her parents' side. In the year 2012, marriage of elder brother of the accused Mr.Jitender was fixed and she used to visit his house very often. When she used to visit at the house of the accused during the marriage ceremonies of elder brother of the accused Mr.Jitender, his father offered them one room in flat at Mohan Garden which was lying vacant and if they wished, they can stay there provided some repair has to be made by them at their own cost and he will not charge any rent from them. She was persuaded by her husband to shift at Mohan Garden in the room of flat belonging to the accused Mr.Jitender. Finally, they shifted at the room located at Mohan Garden. The repair was also done by them and they spent around Rs. 17,000/- to Rs.18,000/-. Accused Mr.Jitender kept on visiting them at the room at Mohan Garden. Sometimes, the accused used to stay at their house and she also developed a faith as he was a distant relative.
Sessions Case Number : 03 of 2013.
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54. On 07.03.2012, she asked her husband if she could go to temple at Hari Nagar since it was Navratra. Her husband told her that she can go to temple along with the accused Mr.Jitender since he had bike and she can return back early. She accompanied the accused in Tata Magic Gramin Sewa till Kakrola More, there they got down. Accused Mr.Jitender asked her to wait for him at Kakrola More till he brought the bike. He came back after twenty minutes without his bike and thereafter, he took her to some unknown place by bus. Thereafter, he took her a long distance on foot. She got frightened. Accused Mr.Jitender called her husband and told him that he had dropped her at her house whereas she was still with the accused. Her husband called the accused at around 7 pm when he did not find her at home. I came to know about this fact later on from her husband. Accused Mr.Jitender asked her whether she wanted to go to her house, she told him that her children are at home and she wanted to go home. There were some arguments between her and accused and he told her that her family is at factory which is located at Mohan Garden. He asked her to accompany him to factory as she was trapped (usnai kaha ki main fas chuki thi). She reached the factory, there she did not find her family members. Instead she found Jeetu and Raj Kapoor present at the factory. Mr.Raj Kapoor is the cousin of accused Mr.Jitender (chacha ka ladka). She asked Mr.Raj Kapoor about her family members but he did not reply. The main door of the factory was locked by Mr.Raj Kapoor and Jeetu and the accused Mr.Jitender dragged her inside the factory with her hand. When she tried to raise the alarm, the accused Mr.Raj Kapoor put his hand on her mouth. She was taken inside the factory and she was threatened with instruments (aujar) lying there and accused Mr.Jitender extended threat to her that if she raised Sessions Case Number : 03 of 2013.
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alarm, she will be killed. Accused Mr.Jitender raped her. She remained in the factory whole night and she raised question in front of the accused Mr.Jitender time and again as why did he betray her.
55. Next day in the morning at about 6 am, the accused Mr.Jitender took her on a bike along with the accused Mr.Raj Kapoor. She was made to sit in between Mr.Jitender and Mr.Raj Kapoor on the bike. The bike was driven by the accused Mr.Jitender. The accused left her at C-1, Block in the house of his Chacha. The accused remained at the house of his chacha for around 5/10 minutes. She told about the incident of rape to the chacha of accused Mr.Jitender. Initially, he consoled her and promised to take action against accused Mr.Jitender. Later on, he too left the house along with accused Mr.Jitender and Mr.Raj Kapoor. Since she was perturbed, she could not check whether the house was locked from outside. At around 4 pm, she left the house. She made a call to her father from STD Booth. Her father conveyed message to her chacha who was also living in C-1, Block. Her cousin Mr.Mukesh and his son Mr.Arjun came to her on their bike and she was taken by Mr.Arjun to house of her chacha. Her father asked her chacha to keep her at his house and he will come in the morning to take her from there. She remained at the house of chacha in the night. Her father came in the morning at around 7/8 am and made inquiry from her but she did not disclose anything as she was frightened. Her husband also came at the house of Chacha and made inquiries from her. She did not disclose anything to her husband also as she was fearing that this may disturb her family life. Thereafter, she went along with her husband to her house at Mohan Garden. The accused kept on coming to her house after the incident Sessions Case Number : 03 of 2013.
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as she did not disclose anything to her husband. She feared that accused Mr.Jitender may harm her and her family.
56. She had quarrel with her husband after five-six days of the incident and the accused Mr.Jitender along with his father gave beatings to her husband brutally. When she tried to intervene, she also received injuries on back of her neck. She along with her neighbour went to DDU Hospital. She went to Police Station with all the medical documents but no case was registered by the police. When she came back from the police station, her house was locked by accused Mr.Jitender and she found her children with the neighbour. On 13.03.2012, she again went to Police Station but no action was taken by the police. She started living at Najafgarh at the house of her parents. She remained there for 6-7 days. During this period, she along with her husband tried to re-open her room but the accused again gave beating to them. On that day, the accused Mr.Jitender was accompanied with his mother, father, Chacha and other relatives. Thereafter, she disclosed about the incident of rape to her husband. She along with her father, husband and younger brother Mr.Manoj Kumar again went to Police Station and she lodged the complaint and she disclosed all the details to the police. Her statement (Ex.PW3/A) was recorded and she was taken to hospital for medical examination. Her statement under Section 164 Cr.P.C. (Ex.PW3/B) was recorded.
57. On careful perusal of the different statements of the prosecutrix, it transpires that she has made several overwhelming contradictions and glaring discrepancies which make version unreliable and strike at the root of Sessions Case Number : 03 of 2013.
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the prosecution case and are fatal blemishes which can not be ignored. They are tabulated herein below.
EVIDENCE STATEMENT COMPLAINT
UNDER SECTION (EX.PW3/A)
164 CR.P.C
(EX.PW3/B)
Father of accused No such statement. Accused Mr.Jitender
Mr.Jitender offered his offered his house for
house for staying to the staying to the husband
husband of the of the prosecutrix.
prosecutrix.
Prosecutrix asked her Accused Mr.Jitender Accused Mr.Jitender
husband if she could go asked her to accompany took her from her house to temple in Hari Nagar him to temple. on 07.03.2012 for going and he told her to go to Santoshi Mata with accused Mandir.
Mr.Jitender as he had a bike.
Accused Mr.Jitender No such statement. No such statement.
took the prosecutrix in Tata Magic Gramin Sewa till Kakrola More. Accused Jitender No such statement. No such statement. returned without bike and took her in bus to an unknown place. Accused Jitender took No such statement. No such statement. her a long distance on foot. Accused Jitender called No such statement. No such statement. the husband of the prosecutrix and told him that he had dropped her home. No such statement. Accused Mr.Jitender No such statement. Sessions Case Number : 03 of 2013. Unique Case ID Number : 02401R0317882012. FIR No. 88/2012, Police Station Ranhola,
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threatened her that if she did not accompany him, he will phone her husband and tell him that she has illicit relations with him.
Prosecutrix and accused No such statement. No such statement.
Mr.Jitender had a
quarrel and he told her
that her family was in a
factory at Mohan
Garden.
Accused Mr.Jitender No such statement. No such statement.
told her that she was
trapped (usnai kaha ki
main fas chuki thi)
In factory, she asked No such statement. No such statement.
accused Mr.Raj Kapoor
about her family and he
did not reply.
She was dragged inside No such statement. No such statement
the factory and
threatened with
instruments (aujar)
(prior to rape)
No such statement. All three accused No such statement.
persons grappled
(hatha pai) with her.
Accused Mr.Jitender Accused Mr.Jitender Accused Mr.Jitender
raped her once. raped her twice. raped her twice.
(although in leading
question by the
Additional Public
Prosecutor, she has
deposed that she was
raped two times.)
No such statement. No such statement. When accused
Mr.Jitender raped her
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first time, he had closed her mouth with his hand.
No such statement When accused No such statement.
(although in leading Mr.Jitender raped her
question by the second time, Jeetu had
Additional Public held her hands and
Prosecutor, she has accused Raj Kapoor
deposed so) held her feet.
No such statement. After the rape, accused No such statement.
Jitender called her
husband on mobile and
told him that the
prosecutrix had gone.
At around 4 pm, she At 6 pm, accused No such statement.
left the house. Jitender told her that if
she wanted to go home,
she could do so.
58. There are some more unexplained contradictions in the evidence of the prosecutrix qua her own statement and in comparison with evidence of other witnesses.
59. In her examination in chief as PW3, the prosecutrix has deposed that "in the year 2012, marriage of elder brother of the accused Mr.Jitender was fixed and I used to visit his house very often." But in her cross examination, she has deposed that "The house of accused Mr.Jitender at C-1, Sita puri consists of one room, small varanda and one kitchen. I never visited the above said house prior to the above said."
60. In her cross examination, the prosecutrix has deposed that "I had formal relation with the accused Mr.Jitender and I used to talk very Sessions Case Number : 03 of 2013.
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less with accused Mr.Jitender. I did not have intimate relation with the accused Mr.Jitender." However, it is clear on perusal of the photographs, Ex.PW3/D1 and D2, which are admitted by her, that she is eating food from one plate with accused Mr.Jitender in a party and her husband is sitting at a side. This indicates that the prosecutrix was in a close relation with accused Mr.Jitender otherwise she would not shared a plate with him, and not with her husband.
61. PW3 has deposed that "The accommodation was given to us without any rent with the understanding that repairs would be carried out by us at our expenses There was no agreement in this regard. I do not have any bills or documents to show that Rs.17,000/- to Rs.18,000/- have been spent towards the repair" while her husband PW 11 has deposed that "I had advanced Rs.10,000/- to the accused for which I have no receipt and I also spent money on the house belonging to the accused in which I was living but I have no receipt of the expenditure and the same have been with the accused Mr.Jitender. I spent the amount for repair of the house."
62. PW3 has deposed that she did not tell anyone about the incident of 07.03.2012 till 20.04.2012 while her husband PW11 has deposed that she told him the next day.
63. PW 3 has deposed that she has asked her husband if she could go to the temple while her husband PW11 has deposed that "My wife was going to temple and Mr.Jitender wished to accompany her to the temple."
Sessions Case Number : 03 of 2013.
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64. PW3 is a married lady aged about 25 years who has been living in a place like Delhi for a long time. Due to this reason her evidence that "I did not leave accused Mr.Jitender at that time to return home or go to the temple on my own as he kept telling me that he had forgotten the way and we were lost and for this reason, I thought that I would not be able to go on my own also. ..From 10-11 am in the morning till evening about 6 pm, the accused made me roam around with him... I do not know the name of the places where the accused had taken me during the day." does not appear to be believable.
65. It would also be pertinent to mention that on Holi, it is not a Navratra, as claimed by the prosecutrix since the Navratra come later.
66. No explanation is coming forth from the prosecution regarding these very material contradictions which strike at the root of the prosecution case and are fatal blemishes which can not be ignored.
67. The fact that the prosecutrix remained with the accused Mr.Jitender from morning of 07.03.2012 till the next day only indicates that she was doing it with her free consent and was neither threatened nor black mailed by the accused into it. She has also not made any complaint to anyone about the offence immediately and it was only after she was ousted from the accommodation belonging to the accused Mr.Jitender and his father that she approached the police. There was nothing stopping her from confiding about the incident in her parents, husband, neighbours etc. or approaching the police earlier. She had not raised any alarm at any point of Sessions Case Number : 03 of 2013.
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time. This fact indicates that they were together with the free consent of the prosecutrix.
68. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that there appears to be an element of an extra marital affair between the prosecutrix which came within the knowledge of her husband and that the prosecutrix and her family were made to vacate the accommodation of the accused and his father accused Mr.Jitender and consequently the present rape case was lodged probably to save the embarrassment for herself and maintain the relations with her husband.
69. In the light of the aforesaid nature of deposition of the prosecutrix, PW3, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence Sessions Case Number : 03 of 2013. Unique Case ID Number : 02401R0317882012. FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 28 of 41 ::-
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either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
70. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
71. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
72. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been Sessions Case Number : 03 of 2013.
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committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
73. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
74. It is clear that the prosecutrix had willfully remained with the accused Mr.Jitender and had physical relationship, if any, with him being a consenting party and that the accused does not appear to have committed any offence
75. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 342, 505 and 376 (2) (g) of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused.
76. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Sessions Case Number : 03 of 2013.
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Supreme Court of India as under:-
"Another golden thread which runs through the web of the 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 favorable to the accused should be adopted......"
77. This brings me to the final question as to whether it was she was confined, threatened and raped by the accused. In this regard it is no doubt true that in her statement before this Court she has stated so but there are several contradictions in her different statements which remain unexplained and indicate that she was with the accused Mr.Jitender voluntarily and without any threat, pressure, influence or coercion and had physical relations with him.
78. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
79. The prosecutrix is an adult and is married. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no Sessions Case Number : 03 of 2013.
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grievance about his conduct and behaviour at any time and having established physical relationship number of times with her consent and without any resistance. She never informed her husband or her family about her relationship with the accused. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
80. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
81. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
82. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix Sessions Case Number : 03 of 2013.
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not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
83. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offences of confinement, threat and rape and all the accused merits to be acquitted for the offences under sections 342, 506 and 376 (2) (g) of the IPC.
DEFENCE OF THE ACCUSED
84. In their respective statements under section 313 of the Cr.P.C., the accused have given mainly three word answers by saying "It is wrong"
to most of the questions or feigning ignorance by saying "I do not know".
They have stated that they are innocent and have been falsely implicated in this case by the prosecutrix.
85. The version projected by the accused persons in their defence is that the prosecutrix, in order to avoid paying rent to Mr.Ram Prakash Sharma, father of accused Mr.Jitender, has falsely implicated both the accused persons in this false case. Accused Mr.Raj Kapoor was at home on 07.03.2012 and did not go anywhere. DWs 1 to 5 have deposed on similar lines. I also find that suggestion has been given to the prosecutrix that in order to avoid paying rent to Mr.Ram Prakash Sharma, father of accused Mr.Jitender, she has falsely implicated both the accused persons in this false case which has been denied by her. However, no suggestion has been put to her that accused Mr.Raj Kapoor was not available at the spot at the time of Sessions Case Number : 03 of 2013.
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alleged incident. Suggestion has also been given to the prosecutrix that she did not want to pay installments for the TV bought by her for which Mr.Dharmender, brother of accused Mr.Mr.Jitender was the guarantor which has also been denied by her. The accused have failed to lead any evidence regarding this suggestion.
86. The prosecutrix has deposed that she was living in the house of the father of accused Mr.Jitender without any rent. She has also deposed that she has spent Rs.17,000/- to Rs.18,000/- towards the repairs.
87. The fact that the prosecutrix and her family were staying in the property of that father of accused Mr.Mr.Jitender is not in dispute. From the record especially the evidence of the prosecutrix, it is revealed that the prosecutrix had called the police when on 12.03.2012, the accused had come to her premises when her husband was allegedly beaten by accused Mr.Jitender and his father (no case is lodged regarding this alleged incident). PW11, husband of the prosecutrix, has deposed that he has spent money on repairs of the house belonging to the accused and also advanced Rs.10,000/- to the accused (no receipt was produced).
88. DWs have consistently deposed that the accused persons were not at the spot at the given time of the alleged incident and there is nothing material in their lengthy cross examination which may of any help to the prosecution.
89. All these facts indicate that the possibility of false implication of Sessions Case Number : 03 of 2013.
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the accused persons by the prosecutrix cannot be completely ruled out as the prosecutrix did not want to pay any rent and still remain the property of the accused. The defence of the accused does appear to be probable.
90. Therefore, I am of the considered opinion that there is veracity in the defence of the accused.
MENS REA / MOTIVE
91. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
92. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists.
A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is Sessions Case Number : 03 of 2013.
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alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
93. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.
However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
94. In the present case, a story has been projected that the accused took the prosecutrix to a factory where she was raped and threatened. This version appears to be untrue especially considering the defence of the accused as well as the fact that the evidence of the prosecutrix herself is unreliable.
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95. All these facts in totality indicate that there was no criminal intention and mens rea on the part of the accused persons.
INVESTIGATION
96. The investigation conducted in the present case has been deposed by PWs 1, 5, 6, 7, 8, 12, 16, 18 and 19. The FIR has been proved by PW2. The MLCs of the prosecutrix and the accused have been proved by PW10, 13, 14. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
97. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.
98. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
99. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 37 of 41 ::-
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100. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
101. Since the prosecutrix as PW3 is neither reliable nor believable as there are overwhelming contradictions in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against all the accused. The prosecution story does not inspire confidence and is not worthy of credence.
102. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish confinement, threat and rape by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
103. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 38 of 41 ::-
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'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
104. Applying the above principles of law to the facts of present case, it is evident that the identity of both the accused Mr.Jitender and Mr.Raj Kapoor stands established. They were known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor when the alleged offence was committed. It also stands established that both the accused had neither confined her nor threatened her nor raped her. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
105. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was confined, threatened and raped by the accused.
106. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 39 of 41 ::-
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the charge against the accused.
107. Accordingly, Mr.Jitender and Mr.Raj Kapoor, the accused, is hereby acquitted of the charges for the offences of confinement, threat and rape under sections 342, 506 and 376 (2) (g) of the IPC.
108. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
109. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
110. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 40 of 41 ::-
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111. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
112. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 14th day of August, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************* Sessions Case Number : 03 of 2013.
Unique Case ID Number : 02401R0317882012.
FIR No. 88/2012, Police Station Ranhola, Under sections 376(2)(g), 342, 506 and 109 of the Indian Penal Code. State versus Mr.Jitender and another. -:: Page 41 of 41 ::-