Delhi District Court
State vs . 1. Rahul, on 31 May, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 16/13.
Unique Case ID No. 02405R0170222012.
State Vs. 1. Rahul,
S/o Sh. Pyare Lal,
R/o Village Amkhirwa,
Post Office Manpur, Thana Bhaita,
Distt. Hardoi, U.P.
2. Ram Kumar,
S/o Late Sh. Sitaram,
R/o Village Koulpur,
Post Office & Thana Pali,
Distt. Hardoi, U.P.
3. Raj Kumar,
S/o Late Sh. Sitaram,
R/o Village Koulpur,
Post Office & Thana Pali,
Distt. Hardoi, U.P.
4. Smt. Munni Devi,
W/o Sh. Ram Niwas,
R/o Village Atarji, Thana Pali,
Distt. Hardoi, U.P.
Date of Institution : 31.7.2012.
FIR No.25 dated 02.02.2012.
U/s. 363 IPC.
P.S. Sagarpur.
Date of reserving judgment/Order : 23.05.2013
Date of pronouncement : 31.05.2013.
SC No.16/13. Page 1 of 22
JUDGMENT
1. The above named accused had been sent for trial by the police for having committed the offences punishable u/s. 363/366A/368/372/376(2)(g)/109/34 IPC.
2. As per the case of the prosecution, the prosecutrix, 14 years old girl, had gone missing on 02.2.2012. Her father Sh. Nand Kishore visited the police station on the same day and lodged the missing report wherein he mentioned that his daughter 'R' (real name not given in order to conceal her identity) had left home for school as usual at 7 a.m. but she neither reached school nor has returned home. He further suspected that his daughter may have been enticed away by some unknown person. His statement was recorded by ASI Hari Singh and on the basis of his statement, FIR was got registered u/s.363 IPC. The investigation was commenced by ASI Hari Singh.
3. It is further case of the prosecution that ASI Hari Singh recovered the girl from Sonepat on 03.5.2012 and recorded her statement u/s.161 Cr.P.C. and at her instance accused Rahul was apprehended from Sonepat and was brought to Delhi. The girl was also brought to Delhi and got medically examined. Her statement u/s.164 Cr.PC was got recorded. She was produced before the Child Welfare Committee and there also her statement was recorded. Thereafter, sections 366A/368A/372/376/34 IPC were added to the case. Accused Rahul came to be arrested and further investigation was entrusted to Inspector Renu Sharma. She obtained three days police remand of accused Rahul and at his SC No.16/13. Page 2 of 22 instance arrested his two maternal uncles i.e. accused Raj Kumar and accused Ram Kumar. Thereafter at the instance of these accused, fourth accused Munni Devi was also arrested from her village Atarji, District Hardoi, U.P. All the aforesaid accused are stated to have made disclosure statements describing their roles in the kidnapping and rape of the prosecutrix. On 10.5.2012 the prosecutrix was produced before the Medical Board in DDU Hospital for ossification test and the Board in its report opined that her age is between 17 to 19 years. Exhibits were sent to FSL for forensic examination.
4. After completion of the investigation, Charge Sheet was laid before the concerned Magistrate, who committed the case to the court of Sessions for trial.
5. On 24.8.2012 Charges for having committed the offence punishable u/s.363 IPC, u/s.366A IPC, u/s.376 IPC, u/s. 376(2)(g) IPC were framed against accused Rahul. On the same day, accused Raj Kumar and Ram Kumar were charged with having committed the offences punishable u/s.376 IPC and alternatively u/s.376(2)(g) IPC. Accused Munni Devi was charged with having committed the offences punishable u/s.376/109 IPC.
6. The prosecution has examined 21 witnesses to bring home the guilt of the accused. The accused were examined u/s. 313 Cr.PC on 04.3.2013. All the accused denied the incriminating facts and circumstances put to them and claimed false implication. Accused Rahul further stated that the prosecutrix was in love with him and she intended to marry him. He also stated that the SC No.16/13. Page 3 of 22 prosecutrix had accompanied him to his native village Hardoi on her own wish and the father of the prosecutrix was aware about their love affair. According to him, he did not entice away the prosecutrix and did not commit rape upon her.
7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
8. The father of the prosecutrix Sh. Nand Kishore has been examined as PW11. He deposed that on 02.2.2012 his daughter aged about 14 years had left home at about 7 a.m. for a Tent Wala School No.2, where she was studying in Class-VI, but she neither reached school nor returned home. He tried to trace her at his own level but could not trace her. In the evening, he went to police station and lodged complaint Ex.PW11/A. According to him, he had visited the police station again on 07.2.2012 and informed the IO that one Rahul, who was working in a Tent House used to come to meet one Raju, who was residing in the same house, in which he was residing. He raised suspicion that said Rahul had taken away his daughter as Rahul also was missing since 02.2.2012. He further deposed that on 03.5.2012, he received a call from his daughter 'R', who asked him to reach Sonepat Bus Stand. He went there alongwith police and found his daughter i.e. prosecutrix standing at Sonepat Bus Stand. He proved the recovery memo Ex.PW11/B vide which his daughter was recovered by the IO. He further deposed that accused Rahul was also arrested vide arrest memo Ex.PW11/C at the instance of his daughter.
SC No.16/13. Page 4 of 229. In the cross examination, PW11 deposed that he had made enquiries from Raju between 02.2.2012 and 07.2.2012 and Raju had told him that Rahul has taken away his daughter. He admitted that his elder daughter Pinky was also studying in the same school, in which the prosecutrix was studying. He deposed that Pinky was 17 years old and had left the house at 6.30 a.m. on the day on which the prosecutrix disappeared and the prosecutrix had left house at 7 a.m. He did not know Rahul prior to the date of incident. He denied the suggestion that his daughter was more than 17 years of age. He did not know the number from which the prosecutrix had made a call to him from Sonepat. He had gone to the house of one lady Manju in Sonepat, from whose mobile the prosecutrix had called him as he had asked that lady to keep his daughter with her. He did not remember the exact address of the house of Manju. He did not notice whether the police had done any writing work in the house of Manju at Sonepat. They left the house of Manju at 7.30 p.m. and reached Delhi at 11.30 A.M. They had stayed in the house of Manju for one hour.
10. Prosecutrix has appeared as PW4 for the prosecution. She deposed that on 02.2.2012 when she was going to her school, accused Rahul met her on the way and asked her to accompany him to his village. On his enticement, she accompanied accused Rahul to Hardoi by train and from there, accused took her to a village, the name of which she did not know. The accused told her that they were in Hardoi and took her to the house of his maternal aunt (Mausi). In the night, she used to sleep with Mausi, but around 12 midnight or 1 a.m. in the night, Mausi used to go out of the room and accused Rahul used to come and commit rape with SC No.16/13. Page 5 of 22 her. Accused kept on committing rape upon her for one and a half months. She further stated that accused Ram Kumar, the maternal uncle of Rahul also raped her in the fields. Thereafter, accused took her to Sonepat where the third accused Raj Kumar also raped her. She was kept in Sonepat for one and a half months and thereafter she ran away from the custody of these accused. Accused Ram Kumar had told her that he will sell her for Rs. 30,000/-. She told this fact to accused Rahul and Rahul also gave his nod for the same. After escaping from the custody of the accused, she went to the bus stand, whee one lady saw her weeping and asked her reason for the same. Then she made a call to her father and went to the house of that lady. Her father came there alongwith police and she was brought to Delhi. Police also apprehended accused Rahul from the house where she had been confined. On reaching Delhi, she was taken to hospital for medical examination. On 03.5.2012 she was taken to a court where her statement u/s.164 Cr.PC Ex.PW4/A was recorded by Ld. M.M. In answer to a leading question put to her by Ld. APP, she admitted that accused Munni and accused ram Kumar obtained his signatures on some papers on the pretext that she is being married with accused Rahul. She also admitted that she came to know about the fact that the accused are going to sell her during the night when one person had come to take her.
11. In the cross examination, she deposed that she knew accused Rahul for the last two years and her sister Pinki also knew him. She used to accompany her elder sister Pinki while going to and returning from the school. She did not inform her parents or her sister about going with the accused. Accused had met her at SC No.16/13. Page 6 of 22 about 6.30 am near a wall and she was in school uniform at that time. Accused caught hold of her hand and asked her to go alongwith him to his village in the house of his Mausi. She came under the influence of the accused. She raised alarm but nobody was there and the accused threatened her that he would kill her father. She did not remember whether other school going children did notice this fact. She did not know to which bus stand did they reach first of all. However, From there, accused took her to old Delhi Railway Station. She did not notice any Police Officials at the Railway Station. She did not raise any alarm at the Railway Station. From Railway Station, they left for Hardoi at 4.30 pm. She did not tell any person between 6.30 am to 4.30 pm when accused was taking her away without her consent. The train in which they were travelling reached Hardoi at 1.30 am in the night. No police official of Railway Police were present at the platform at village Hardoi at that time. Accused took her to an isolated land from the Railway Station and they stayed there till 4.30 am when the accused took her to the house of his Mausi by Tonga. She did not raise any alarm on the way to his Mausi's house. She was knowing the mobile number of her father but she did not make any call to her father as no phone was provided to her. The house of the mausi of the accused and that of Ram Kumar was the same. The mausa of the accused and his four children were also residing in that house. The house did not consist of any room but it was a temporary terpolin covered area. The plot size was 25 sq. yards. Mausa of the accused and his elder son used to sleep outside the house and the rest of the family members used to sleep inside the room. She further deposed that the lady who met her at the Sonepat Bus Stand was Manju and she took her to the house of SC No.16/13. Page 7 of 22 her sister-in-law where she remained till her father arrived. She did not see any police official in Sonepat bus stand. She also did not tell anything to her father but police officials made inquiries from her. She also deposed that in Sonepat, in one room, accused Raj Kumar, Ram Kumar and Rahul were residing. She stayed in that room for about one and a half months. She stated that accused Raj Kumar and Ram Kumar used to reside in Sonepat but accused Ram Kumar was also present in Hardoi when she was staying there alongwith accused Rahul.
12. PW-21 is Ms. Manju who had met the prosecutrix at Sonepat Bus Stand. She did not remember the month in which the incident took place. However, it happened before 8 to 9 months before the date she was examined in the Court. She remembered that it was 2nd day of the month. She deposed that during that time she was residing at Surya Petrol Pump Wali Gali No.6, Sonepat, Haryana alongwith her family and that day at about 3 pm or 4 pm when she was returning from the market and was passing in front of the Sonepat Bus Stand, she found a girl standing there, who was weeping. She went to that girl and asked her why she was weeping. The girl did not tell her why she was weeping. She gave her a glass of water which she took. The girl requested her to lend her mobile phone as she wanted to call her paents. She gave the same to the girl from which she called her parents and they requested to keep the girl with her till they reached Sonepat. Accordingly, she took the girl to her residence. The girl disclosed her name as 'R'. At about 7 pm, the parents of the girl 'R' came to her residence and took her away. In the cross examination, she deposed that parents of 'R' accompanied by three to four police SC No.16/13. Page 8 of 22 persons. She had seen 'R' for the first time on that date and did not know her before that date. She denied the suggestion that her husband Sagar and accused Raj Kumar were employed at the same place. She did not know accused Raj Kumar, who was present in the court. She did not know whether police officials had arrested any person on that date in Sonepat. She did not know what police did after leaving her residence. She further stated that she had taken Ruby to the house of her sister-in-law (Bhabhi) and was taken by her parents only. She did not make any call to accused Raj Kumar from her mobile phone. Ruby did not tell her anything about her ordeal. She admitted that police did not meet her and Ruby at Sonepat Bus Stand.
13. According to PW-19 ASI Hari Singh, the complainant came to the Police Station on 02.05.2012 and told him that he has received a telephonic call from his daughter 'R' that she is present at Bus Terminal in Sonepat. He alongwith SI Jitender, Constable Sumit and the complainant reached bus terminal, Sonepat. The complainant identified a girl standing at the gate of the bus terminal to be his daughter 'R'. On inquiries 'R' told that she was taken away by Rahul and brought to Sonepat where they had been residing in the house of Rahul's maternal uncle in Surya Petrol Pump wali gali, Rame Nagar. They went to that house but it was found locked, when they were returning from that house, the girl pointed towards a boy in the gali saying that he is Rahul. They apprehended Rahul and then brought them to Delhi. In the cross examination, he deposed that Manju did not meet them on that day and from Sonepat Bus terminal, they had gone to only one place i.e. house of Pappu and no other place.
SC No.16/13. Page 9 of 2214. Let me now analyze the testimony of these material witnesses of the prosecution in order to determine whether or not the accused are guilty.
15. According to the prosecutrix (PW-4), on 02.02.2012 when she was on her way to school in the morning, accused Rahul met her and asked her to accompany to his village. On his enticement, she accompanied him to Hardoi by train from where Rahul took her to his native village, the name of which she did not knew. Ex.facie, the statement of the prosecutrix is vague and not believable. She doesn't say what kind of enticement was offered by the accused to her. She has nowhere stated the exact words told to her by the accused Rahul which made her to accompany him. Accused's mere asking her to accompany him can by no stretch of imagination taken to be any allurement or enticement. Even if, it is taken as true that the accused asked her to accompany him to his village, she could have easily said no and proceeded forward to her school. She appears to have readily agreed to the proposal of the accused and did not refuse to accompany him. Thus essential ingredient constituting the offence of kidnapping punishable under Section 363 IPC is missing in this case.
16. Apart from this, the prosecutrix and her father (PW11) have admitted in the cross examination that prosecutrix and her elder sister Pinki were studying in same school. Prosecutrix has further deposed that she used to go to school together with Pinki and both used to return together. The statement of the father of prosecutrix (PW11) that on 02.02.2012 Pinki left for school at 6.30 SC No.16/13. Page 10 of 22 am, whereas prosecutrix left at 7 am, is a totally false statement for two reasons. Firstly school timings are usually uniform for all students and, therefore, both the sisters would be leaving for school together at the same time. Secondly, prosecutrix has not said that on 02.02.2012 her sister had left for school earlier than her and she was alone when accosted by the accused. She has said that accused met her near a wall at 6.30 am, which implies she also had left home near about 6.30 am and not at 7 am. This discussion leads to conclusion that on 02.02.2012 also, both the sisters had left for school together as usual. So Pinki must have necessarily witnessed what transpired between prosecutrix and the accused and what made her to accompany the accused. She was a important witness for the prosecution and hence on account of her non-production as a witness before the court, adverse inference has to be taken against the prosecution. Thus it is to be taken that if Pinki would have been examined as a witness, she would have deposed against the case of prosecution. Her non- examination as a witness creates doubt in the prosecution case.
17. Further the prosecutrix has given contradictory statements with regards to the reasons which compelled her to accompany the accused. She has consistently said in her statement u/s 161 Cr.P.C., u/s 164 Cr.P.C. and in her examination in chief before this court in saying that accused asked her to accompany him and she accompanied him. It is for the first time in her cross examination that she deposed that accused caught hold of her hand and she came under his influence. She raised alarm but nobody was there and accused threatened her that he would kill her father. This is a clear improvement upon her previous SC No.16/13. Page 11 of 22 statements and hence does not merit any consideration. Even otherwise this part of deposition of the prosecutrix does not appear to be credible as she was not alone. She was accompanied by her sister and other school going children must have been walking on the road. So her shouts would not have gone unnoticed, if at all she had raised any alarm.
18. Given the aforesaid conduct of the prosecutrix, there should be no two opinions that she accompanied the accused voluntarily and went alongwith him to his native village in Hardoi, UP. She did not offer any resistance and did not raise any alarm. She did not tell anybody at the railway station or in the train that accused has enticed her and she does not want to go with him. She did not raise any alarm on the way from railway station to the house of Rahul's mausi. She appears to have stayed with the accused at the house of his mausi willingly. She did not tell the mausi or mausa of the accused that she has come there under the influence or pressure of accused. She did not ask Rahul to take her back to her home. She did not inform any other villager about her plight.
19. Even otherwise also, the prosecution has not lead any convincing evidence to show that prosecutrix was less than 18 years of age when she went with the accused Rahul. PW6 has proved the school record of the prosecutrix which shows her date of birth as 01.01.1995 implying that she was 17 years and one month old on the date of incident i.e. 02.02.2012. However, she has admitted in her cross examination that the date of birth of the prosecutrix was recorded merely on the basis of a declaration SC No.16/13. Page 12 of 22 made by her father who has not produced any document in support of his declaration. Hence it is manifest that the father of prosecutrix had given only a rough idea about her date of birth at the time of her admission in the school. Thus there is no cogent evidence on record to demonstrate that the prosecutrix was born on 01.01.1995. It has to be kept in mind that in cases involving offences u/s 363 and u/s 376 IPC, the age of the prosecutrix is a vital fact which, like any other fact, has to be proved by the prosecutrix beyond reasonable doubt.
20. On the other hand, the prosecutrix was also produced before a Medical Board in DDU Hospital which conducted her ossification test. The report (Ex. PW18/A) of the Board has been proved by PW-18, who was one of its members. As per this report, the age of the prosecutrix has been opined to be between 17 to 19 years. Thus she was more than 18 years old when she accompanied the accused Rahul.
21. It is a trite law that when different documents on record show different ages of the prosecution, the accused has a right to choose the one which favours him. Therefore, the submission of the ld. Counsel for the accused that the age of the prosecutrix should be taken to be more than 18 years as on the relevant date i.e. 02.02.2012 is acceptable and hence I hold that prosecutrix was major when she went alongwith the accused Rahul. Therefore, the charge u/s 363 IPC and u/s 366A IPC must fail on this count also.
22. The prosecutrix has deposed that the accused Rahul SC No.16/13. Page 13 of 22 continued to commit rape upon her for one and a half months during which period she stayed with him in the house of his mausi at Hardoi. In her statement u/s 164 Cr.P.C. also the prosecutrix has stated that the accused enjoyed sex with her daily during the night without her consent. It is nowhere clear from her testimony that what made her to submit her body to the lust of accused. Did she do so on account of any threats issued by the accused or on account of some other fear lurking in her mind. There is nothing in her testimony in this regard. In the absence of any such explanatory statement from the prosecutrix, it has to be taken that there was no force, pressure or threat upon her in engaging in sexual intercourse with accused. Therefore, she could have resisted the moves of the accused and she would not have allowed him to commit sexual intercourse with her but apparently that has not happened. In my opinion, the prosecutrix's merely stating that she was raped by the accused, does not help the case of prosecution unless the prosecutrix explains the circumstances in which she was compelled by the accused to submit her body to him. In the whole testimony of the prosecutrix, I do not find anything to suggest that she was threatened, forced or coerced by the accused to have sexual intercourse with him.
23. Having said so, I may further add that there are serious doubts regarding the fact as to whether or not the prosecutrix was raped at all by any of the accused. It has come in the cross examination of the prosecutrix that the house of the mausi of the accused consisted of only one room which infact was not a pakka room but a temporary covered area having 'Tarpal' over it instead of a roof. It was a plot admeasuring 25 sq. yds. The SC No.16/13. Page 14 of 22 four children of his mausi also stayed therein. She has also stated that mausa of the accused and his elder son used to sleep outside the room and rest of the family members used to sleep inside the room. Therefore, manifestly the remaining three children of the Mausi of the accused alongwith the Mausi slept inside the room. Therefore, it is highly improbable that accused would have been successful in committing rape upon the prosecutrix in the presence of three children of his mausi in such temporary covered area, even if it is to be believed that mausi of the accused used to go out of the room, at around 12 midnight or 1 am.
24. The prosecutrix has deposed that she was raped by accused Ram Kumar also in the fields at Hardoi. However, she has not stated so in her statement u/s 161 Cr.P.C. or in her statement u/s 164 Cr.P.C. Hence this being an improved version of the prosecutrix, need not be considered.
25. According to the prosecutrix she was continuously raped by accused Rahul for about one and a half month at Hardoi and then by accused Raj Kumar also at Sonepat. She was of mature age and would have attained puberty long before. Thus naturally when she was subjected to sexual intercourse continuously for about two months, she would have got pregnant but that is not the case here. There is no evidence on record that the prosecutrix had become pregnant or she was compelled to abort the pregnancy by any of the accused before she was recovered by Police or that the accused used condoms or other contraceptives while committing intercourse with her. The MLC of the prosecutrix Ex. PW3/A also demonstrates that she was SC No.16/13. Page 15 of 22 mensurating when she was medically examined by the doctor at DDU Hospital on 3.6.2012 after she was recovered by the police at Sonepat. It is very difficult to believe that a lady who is being subjected to sexual intercourse continuously for about two months would not get pregnant, unless it is shown to the satisfaction of the Court that she was medically unable to conceive.
26. In the aforesaid facts and circumstances of the case, I find it highly improbable that the prosecutrix was subjected to sexual intercourse by any of the accused as alleged by her.
27. The accused have also been charged for having attempted to sell the prosecutrix. With regards to this charge, it may be noted that there is no concrete and credible evidence on record. The prosecutrix has made a one line statement in her examination in chief that accused Ram Kumar told her that he would sell her for Rs. 30,000/- and when she apprised accused Rahul about the same, he also agreed. It seems to be a very vague statement. The prosecutrix has not explained whether accused Ram Kumar had told her so at Hardoi or at Sonepat and in whose presence. It seems to be a very bald allegation levelled by the prosecturix just to ensure that the accused are convicted for one more offence in this case. There is no consistency in this regard between the deposition of prosecutrix before this court and her previous statement. In her statement u/s 161 Cr.P.C. recorded on 3.5.2012, she has stated that Munni, the daughter of Rahul's mausi told her that accused Ram Kumar is going to sell her for Rs. 30,000/- in any event. In her statement u/s 164 Cr.P.C., she states SC No.16/13. Page 16 of 22 that Rahul's maternal uncle had sold her to somebody in village for Rs. 30,000/- and when that person came to take her, she got to know about the same. In the deposition before the court as noted herein above, she states that accused Ram Kumar told her that he would sell her for Rs. 30,000/-. Going by such glaring inconsistencies, it would be a total miscarriage of justice to place any trust upon the deposition of the prosecutrix in this regard. Moreover, Munni has not been produced as witness to corroborate the statement of the prosecutrix.
28. I also find that the allegations of rape against the accused Raj Kumar are also baseless and not trust worthy. When the prosecutrix has levelled false allegations of rape and her sale to somebody else, against accused Ram Kumar, it is quite apparent that the allegations of rape against accused Raj Kumar are also false. The prosecutrix is totally silent as to why she did not complain to accused Rahul against the alleged evil acts of his maternal uncles.
29. In the cases involving offence of rape, the testimony of the prosecutrix is the most crucial and relevant piece of evidence. The statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration and the court may convict the accused on her sole testimony. However, as held by the Supreme Court in Udai Vs. State of Karnatka AIR 2003 SC 1639, even in case of rape, onus is always on the prosecution to prove affirmatively, all the ingredients of the offence, which seek to establish and such onus never shifts. It is not the duty of the defence to explain as to how and why the victim and other SC No.16/13. Page 17 of 22 witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take the support from the weakness of case of the defence. However, the great the suspicion against the accused and however strong the moral belief and the conviction of the Court, unless the offence of the accused is established, beyond reasonable doubt on the basis of legally admissible evidence and the material on record, the conviction cannot be ordered. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
30. The Supreme Court in the case of Rajoo Vs State of MP AIR, 2009, SC 858 as under:-
"The evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be SC No.16/13. Page 18 of 22 protected against the possibility of false implication, particularly where a large number of accused are involved".
31. In the same judgment, the Supreme Court also observed that the accused must also be protected against the possibility of false implications, their being no presumption of any condition for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
32. In Tameezuddin @ Tammu Vs. State (NCT of Delhi) 2009 15 SCC 566 (AIR 2009 SC(Supp)2519:2009 AIR SCW 6219), this court held as under:-
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter".
33. In Jai Krishna Mandal & Anr. Vs. State of Jharkhand (2010) 14 SCC 534, this court while dealing with the issue held:
"The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected SC No.16/13. Page 19 of 22 by the prosecutrix was so improbable that it could not be believed."
34. A close scrutiny of the testimony of the prosecutrix in the instant case would reveal that it does not inspire any confidence. Her testimony is not only far from being credible and trust worthy but also highly improbable. The prosecutrix has voluntarily accompanied the accused Rahul to his native village in Hardoi and stayed with him at the house of his mausi for about one and a half months. She did not complain to anybody either on way to Hardoi or to any co-villager or to anybody else about any of the accused. She admits to have voluntarily accompanied the accused Rahul from Hardoi to Sonepat and stayed there with him at the residence of his maternal uncles i.e. accused Ram kumar and accused Raj Kumar. The story of rape and her alleged sale to somebody else is absolutely not believable and also is not supported by the oral as well as medical evidence on record.
35. Even the circumstances in which the prosecutrix is alleged to have been recovered by the Police officials are doubtful. The witnesses of the prosecution have contradicted themselves in this regard. The prosecutrix has deposed that after running from the custody of the accused persons, she went to bus stand where a lady found her weeping and asked her why she was weeping. Then she made a call to her father and she went alongwith that lady to her house. Her father alongwith police officials came there and she was brought to Delhi. In the cross examination, she deposed that the name of said lady, who met her at the bus stand Sonepat, was Manju and she took her to the house of her sister-in-
SC No.16/13. Page 20 of 22law (bhabhi). She remained there till the arrival of her father. She specifically stated that she did not see any police officials at Sonepat bus stand. To the contrary, PW-19 ASI Hari Singh has deposed that on 2.5.2012, the complainant (PW-11) came to the Police station and told him that he has received a telephonic call from his daughter that she is present at Bus stand Sonepat. He alongwith SI Jitender, constable Sunil and complainant reached bus stand Sonepat and found a girl standing at the gate of the bus terminal, who was identified by the complainant to be his daughter. In this way, the prosecutrix was recovered.
36. The father of the prosecutrix appearing as PW-11 has also deposed that on 3.5.2012,, he received a call from his daughter saying that she is at Sonepat Bus stand. He alongwith police reached there and found his daughter standing at the bus stand. In the cross examination, he deposed that he did not know from which number he had received the call from his daughter. He had asked that lady namely Manju to keep his daughter with her. He had gone to the house of that lady. Her children as well as her husband were also present there at that time. He did not notice whether police had done any writing work at the house of Manju. They left the house of Manju at about 7.30 pm and reached Delhi at about 11.30 pm. They had stayed in the house of Manju for about one hour.
37. In view of the testimony of the aforesaid witnesses, the manner in which the girl is alleged to have been recovered at Sonepat, Bus Stand is extremely doubtful. The prosecutrix has stated that her father as well as the Police officialst reached the SC No.16/13. Page 21 of 22 house of sister-in-law of Manju. Her father states in his examination in chief that he identified his daughter at Sonepat Bus Stand but in cross examination he has admitted that he alongwith police officials had gone to the house of Manju as he had requested Manju to keep his daughter at her house. According to PW-19, the prosecutrix was recovered from Sonepat Bus Stand. He has specifically stated in the cross examination that Manju did not meet them on that day.
38. This kind of totally contradictory evidence coming forth from the prosecution witnesses further reinforces the doubt in the mind of the court regarding the truthfulness and correctness of prosecution case.
39. Resultantly, the prosecution has failed to prove the charges against the accused beyond reasonable doubt. All the four accused are hereby acquitted, giving them benefit of doubt.
40. Accused Rahul, Ram Kumar and Raj Kumar be released from the judicial custody forthwith if not required to be detained in any other case.
Announced in open (VIRENDER BHAT)
Court on 31.5.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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