Delhi District Court
Fir No. 227/15 State vs . Jitender Kumar Ps Pt. Street U/S ... on 28 February, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.8449/2016
FIR No.227/15
PS Parliament Street
U/s 328/376/506 of IPC
State v/. Jitender Kumar
S/o Late Sh. Bharat Singh,
R/o B-III, Servant Quarter,
M.S. Flat, BKS Marg, Delhi.
Date of Institution- 16.11.2015
Arguments heard/ Order reserved-28.02.2017
Date of judgment-28.02.2017
Final order- Acquittal
JUDGMENT
A. FACTS OF THE CASE
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Criminal Procedure Code (for short Cr.P.C), are that on 02.10.2015, accused called the prosecutrix "P" W/o "P"(name of prosecutrix and her husband have been withheld with a view to conceal their identity) at Kendriyal Terminal on the pretext of securing a job for her at the house of a Minister where accused was allegedly working as a Driver. As per accused instruction, she reached at bus stop, Kendriyal Terminal near Route No.729. After some FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 1 of 32 time, accused also reached at the said bus stop from where accused took the prosecutrix to Flat No. B-501, MS Flat, Baba Kharag Singh Marg, New Delhi. In the said flat accused administered her cold drink laced with stupefying substance which was drunk by prosecutrix, due to which prosecutrix became unconscious and thereafter accused made physical relationship with the prosecutrix against her will and without her consent. When prosecutrix gained consciousness, accused threatened not to disclose about the incident to anybody otherwise he would kill her. On the complaint of prosecutrix, present FIR was registered against the accused for the offence punishable u/s 328 / 376 and 506 of Indian Penal Code (for short IPC).
B. INVESTIGATION
2. During investigation interalia other things, IO recorded the statement of prosecutrix u/s.161 CrPC, got conducted medical examination of prosecutrix in RML Hospital, got the prosecutrix counseled from NGO, prepared site plan at the instance of prosecutrix, got recorded statement of prosecutrix u/s 164 of Cr.P.C, arrested the accused, got conducted medical examination of accused in RML Hospital. After completion of investigation challan was filed before the learned MM on 16.11.2015 and the case was committed to this Court on 09.12.2015. During pending trial supplementary charge-sheet was filed alongwith FSL Result.
C. CHARGE
3. On 14.12.2015, a charge was framed against the accused for the offences punishable under Section 328, 376 and 506 of IPC to which accused pleaded not guilty and claimed trial. Thereafter, matter was posted for prosecution evidence.
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 2 of 32 D. PROSECUTION EVIDENCE
4. In order to substantiate the allegations, the prosecution examined following witnesses:-
(i) Dr. Kavita, Senior Resident as PW-1 who medically examined the prosecutrix at RML Hospital.
(ii) Dr. Monika Tanwar as PW2, who medically examined the accused at RML Hospital.
(iii) Prosecutrix/complainant as PW3 who reiterated the facts of the case and proved her complaint Ex.PW3/A and other relevant documents Ex.PW3/B, ExPW3/P1 to ExPW3/P11.
(iv) Sh. Sandeep Monga, SSO (Chemistry), RFSL, Chanakyapuri, New Delhi examined as PW4 who examined the blood sample of prosecutrix regarding stupefying substance administered to prosecutrix and prepared his report Ex.PW4/A.
(v) Sh. D. S. Paliwal, SSA (Biology), RFSL, Chanakyapuri, New Delhi examined as PW5 who examined the samples of prosecutrix and accused regarding identification of DNA and prepared his report Ex.PW5/A and Ex.PW5/B.
(vi) W/Const. Sonia as PW6 who accompanied with W/SI Usha and produced the prosecutrix alongwith written complaint.
(vii) W/SI Usha Rani as PW7, first IO who had received the information through duty officer, reached at RML Hospital and recorded the statement/complaint of the prosecutrix.
(viii) Sh. Shishir Malhotra as PW8, who was the Nodal Officer from Aircel Ltd. to prove all details/ location charge of Mobile No. 9716371123.
(ix) Constable Devender Singh as PW9 who has produced the accused for FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 3 of 32 medical examination at RML Hospital after his arrest in his presence.
(x) ASI Hem Chander as PW10 who was posted at Mobile Crime Team and on receiving the information of control room, investigated the spot and prepared his report Ex.PW10/A.
(xi) W/SI Seema Yadav who is the IO of this case.
All the witnesses were cross examined at length.
During trial accused has not disputed the genuineness of his potency test, CDR and other documents of mobile no. 9899755712, recording of FIR and recording of statement U/s. 164 Cr.P.C. by Ld. MM and accordingly the witness related to these documents were dropped without their formal examination.
After completion of prosecution evidence, matter was posted for statement of accused.
E.STATEMENT OF ACCUSED
5. Statement of accused was recorded u/s 313 Cr.P.C separately. Accused has stated that prosecutrix used to call him on his mobile phone for a job for which he had told the prosecutrix that he was trying for it. During one of the meetings at the bus stop of Central Secretariat, he told that he remain busy. At that time, he was checking a bag containing some currency notes given to him by boss. She noticed that he is carrying reasonable amount of currency notes. After that, she started asking him to give some money to her. After that, she started to extort money from him thinking that he is a rich man to which accused refused to pay her. This may be the possible reason for involving him in this false case by her. Even after his arrest in this case, prosecutrix used to ask his family members through her relatives / known persons to give her money which his family members refused to give her as he was innocent in this case.
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 4 of 32 However, accused opted not to lead any defence evidence. Hence, matter was fixed for final arguments.
F. FINAL ARGUMENTS
6. Final arguments heard on behalf of both the parties. I have gone through the records as well as relevant provisions of law and written submissions filed on behalf of accused.
7. It was argued on behalf of the State that when the prosecutrix was sitting at Centre Terminal Bus Stand about 2-3 months prior to present complaint and was talking to one of her known on mobile phone and she was asking him to tell her for suitable job for her as she was in need of job. The accused Jitender was also sitting there and after hearing her conversation, he asked her whether she was in requirement of job. The accused told her that he used to work in Parliament and he used to drive vehicle of minister and there is need of a woman to cook food and to look-after children. The accused took her mobile number from her and he gave his mobile number. The accused told his name as Jitender. Thereafter, she went to her house. After 2-3 days, she made call to the accused and asked him about her job and accused told her that he is looking for job for her. Thereafter, she again made calls to him to know about her job but the accused replied similarly. After some time she received a phone call of accused wherein he told her to provide him her documents i.e. Aadhar card and PAN card and he also told her that she should hand over all the documents to him at the same bus stand where he met her. She went there and accused met her there. The accused told her to come to the flat no. B-501 near the Dr RML Hospital. The accused took her in his car to the flat no. B-501 and there she gave her documents to him. Thereafter, prosecutrix came back to her house.
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 5 of 32 On 02.10.2015, she went to central terminal bus stand and thereafter, accused met her there. He took her to a flat in his vehicle, which was at a short distance from bus stand. Then they had lunch at a canteen/dhaba. Thereafter, the accused again took her in his car near to RML hospital and he alighted her there and told her that she should come to flat no. B-501 after asking from the guard and thereafter he went inside. Thereafter, prosecutrix went to flat no. B- 501 by lift as the flat was situated at the 5th floor. There inside the flat, accused Jitender was sitting and he asked her to wait for 5-10 minutes for the madam and sir. After 5-10 minutes when Sir and madam did not come, she told the accused that she want to leave. However, the accused insisted her to wait for another 10-15 minutes for Madam and Sir. The accused gave her cold drink in "Cane" and after drinking that cold drink, she started feeling giddiness and when she regained her conscious, she found that her legging and underwear were already removed and she was having pain in her private part. She was feeling wet on her private part. She asked the accused whether he did anything wrong with her. The accused told her that he has to do all this and only thereafter he could get her a job. She told the accused that she wanted to go home and thereafter the accused took her down through lift and he dropped her outside of Dr. RML hospital in his car and he also threatened her that she should not disclose this incident to any body otherwise he would get her killed. The accused also told her that he is working with the minister and therefore he is having contacts with higher officials. All these allegations are proved in the testimony of prosecutrix and other witnesses and therefore, accused may kindly be held guilty for the offences charged with.
8. On the other hand, apart from several other arguments, learned defence counsel argued that accused has been falsely implicated in this case. It was FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 6 of 32 further argued on behalf of the accused that during the trial of this case, total eleven witnesses including the prosecutrix were examined. However, false story of the complainant could not be substantiated by any legal evidence during trial before the Court. There are lot of contradictions among the statements of prosecutrix and those of the police officials including both the Investigation Officers, on material aspects of this case.
9. It was further argued that the first information about the incident of rape is the PCR call by the prosecutrix which was recorded vide DD No.25A dated 02.10.2010 at PS Mandir Marg, New Delhi. In this PCR call prosecutrix has mentioned that "Mai kise ke pass kaam ke liye gayi thi, jo mujhe nashila padarth pila kaar galat kaam kiya hai'. In this first information to the police, prosecutrix neither mentioned the name of the accused nor she mentioned the address of the accused or the place of the alleged occurrence, though she was well aware of his name and the address. This means, she subsequently manipulated the entire story of the rape.
10. It was further argued by the counsel that during investigation of this the IO sent the exhibits, collected/sealed by the doctor at the time of medical examination of prosecutrix for comparison with that of the exhibits pertaining to the accused. The result of exhibits and expert's opinion on the DNA Sample from RFSL, Chanakya Puri is not supporting the prosecution story. According to it the DNA sample of the prosecutrix does not match with that of the accused. On perusal of this most scientific and reliable evidence, it may be safely concluded that the accused has not committed any rape on the prosecutrix as alleged by her.
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 7 of 32
11. It was further argued that during the cross examination prosecutrix denied having gone to the place of the alleged incident after the alleged rape on her. Though, IO has deposed that she along with the prosecutrix went to the spot before 9 PM, where as in the endorsement on rukka, the IO has mentioned the time of making and handing over tehrir (endorsement on the statement of prosecutrix) to duty officer PS Parliament Street is 9 PM. IO W/SI Seema Yadav also deposed in her cross examination that she went to the spot alongwith the prosecutrix whereas prosecutrix denied this fact in her cross examination. In her cross examination, the crime team In-charge has stated that the IO was present at the alleged sport from about 8.45pm till 9.45 PM. No fingerprint or any other evidence i.e. cane of the alleged soft drink etc. was recovered at the spot either by the crime team or by the IO because no such incident took place there. Ld. Counsel for the accused further submits that neither the doctor who conducted the examination of the prosecution took the stomach wash nor the IO requested to the doctor for the same, to find out if any stupefying substance was given to her or not. It was not done because no such thing happened.
12. It was to be further argued that ASI Hem Chander, In-charge of mobile crime team in his statement and cross examination has stated that he and the photographer remained at the spot from 8.10 pm till 9.45 pm. When he reached at the spot, the Chowki In-charge informed him that IO W/SI Seema Yadav is returning from the hospital. After about 30/45 minutes, IO W/SI Seema Yadav reached at the spot who remained there till conclusion of the proceedings i.e. upto 9.45 pm which means the IO W/SI Seema Yadav was present at the spot from about 8.30 pm till 9.45 pm, where as she was in police station while making endorsement for registration of this case. It was further submitted that upon the site plan ExPW3/B, nothing is mentioned that exactly from which FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 8 of 32 location the used and unused condoms, hair big and angocha (towel) were recovered. Neither the site plan nor the seizure memo of exhibits, are signed by the prosecutrix which also strengthens her version that she never visited the spot on that day and nothing was recovered from the spot. It was further submitted that the IO W/SI Seema Yadav has seized the four items vide memo ExPW10/B at the Police Station Parliament Street. This raises serious doubts on the recovery of these items. Had these items been recovered from the place of incident, the seizure memo should have been prepared at the spot in the presence of the prosecutrix.
13. It was further argued that first IO W/SI Usha in her cross examination has stated that the medical examination was conducted after recording the statements of the prosecutrix, whereas prosecutrix stated that after she informed the PCR, police first took her for medical examination and after that her statement was recorded. It was further argued that according to the MLC, the prosecutrix was taken to the hospital by HC Ramavtar of PCR but W/SI Usha has stated that she took her to the hospital for medical examination after recording her statement at the gate of RML Hospital, which does not seems to be probable. It was further submitted by the counsel for the accused that the IO did not record the statement of ASI Tulsi Ram, who was initially entrusted the DD No.25A, HC Ram Avtar of PCR and that of the Chowki In-charge who was stated to be present on the place of occurrence, which raises serious doubts on the truthfulness of the prosecution stories. It shows that it is a concocted story cooked at the police station, just to support the false version of the prosecutrix.
14. It was further argued by the counsel that in her testimony before the Court, prosecutrix has admitted that neither the police read over the contents of FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 9 of 32 her statement Ex.PW3/A nor she read it. Even she did not know as to in how many pages her statement was recorded by the police. It shows that whatever was mentioned in ExPW3/A was doubtful and can not be considered to be true. It was further argued that even if the statement of the prosecutrix is considered to be a gospel truth, even then the fact of giving stupefying material to drink is not trustworthy because the prosecutrix in her cross examination has admitted that the alleged cane was opened by the accused in her presence and after that she drank it. Under these circumstances no stupefying material can be inserted in a sealed cane of drink. Moreover, there is neither any recovery of the alleged cane nor the allegation are supported by any medical or chemical examiner's report. Further, had the intention of the accused was to commit rape on her, accused could have done so on earlier visit also. In fact her visit was probably to see the flat of the accused from inside for lodging this false case against him, with ulterior motive or for extortion. From her cross examination, if time is calculated, prosecutrix might have been given the cold drink after 2 pm where Dr. Kavita in her cross examination admitted that she told her that the cold drink was given to her between 12 noon to 1 pm, which shows her story is doubtful and self contradictory. There are a lot of contradictions in the statement of prosecutrix given by her to police in FIR, in her statement before the Ld. MM and that of in her examination in chief, particularly about her version on the date of incident. Prosecutrix in her statement under section 161 of CrPC told that accused also came there and took the prosecutrix a slight far away from bus stand and started waiting there for someone and asked prosecutrix if she is hungry but in her statement u/s 164 of CrPC she has stated that accused took the prosecutrix at the nearby flat and accused offered water to prosecutrix and accused neglected prosecutrix for sometime but before this Court has deposed that accused took the prosecutrix in his car to Dr. RML Hospital and he alighted FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 10 of 32 prosecutrix there and told her to come to Flat No. B-501, after asking the guard and thereafter accused went inside. It was further argued by the counsel for the accused that only in her statement under Section 161 of CrPC she has stated that accused also told her that he was working with minister and therefore, he is having contacts with higher officials.
15. It was further argued that prosecutrix has further admitted that she went to her village in District Baliya and stayed there for 2 days and then came to Delhi about 2/3 days before incident. She carried mobile number with her to her village. But her call details record shows that she was in Delhi only during those days. There is not a single roaming outgoing or incoming call from the mobile of prosecutrix during the span of 22.09.2015 till the day of incident. Even her location constantly shows that she was in Delhi only during 22.09.2015 till the day of incident. Call details of mobile shows that prosecutrix often she used to be in the area of Connaught Place without any job. In her statement before the Court, she has stated that she reached at the flat at about 1:25 pm and 10/15 minutes were taken in having cold drink. Around 1:38 pm, she called accused. It means she was not with the accused. From her testimony, it is clear that she had cold drink at 2:00 pm. Prosecutrix was carrying phone which was in switched on mode throughout. In her testimony, she has further stated that at 4 pm, she regained consciousness. As per the CDR, prosecutrix made an outgoing call to number 7240208898 (92s) at 1.14 and outgoing to accused itself at 1.38 pm from her mobile phone. She also received one phone call at 3.40 pm (72s) from no.8467984790. If she was unconscious during that period, then how she was able to receive a call for a duration of 72 seconds. It is further submitted that according to Dr. Kavita of RML Hospital and in MLC, after having cold drink prosecutrix was asleep and woke up after one or one and half hours.
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 11 of 32 But prosecutrix in her statement under Section 164 of CrPC stated that she regained her consciousness after 2 or 2-1/2 hours and she found that all her clothes were removed. According to Dr. Kavita she was given cold drink in between 12 to 1 pm. All this evidence raises doubt about the version of prosecutrix.
16. It was further argued that in her testimony before the Court she has stated in her examination in chief and cross examination that her economic condition is poor and she is living in Delhi from 5-6 years. Her husband is not staying with her from last 1 / 1-1/2 years. At present prosecutrix is living with sister in rented house with rent of Rs. 3500 pm. She is earning about 6000- 7000 p.m. from stitching job. In order to achieve her ulterior motive to extort money from the accused, she even avoided to give her statement before this Court on 2/3 dates and when she failed in her mission then she deposed against the accused in this false case. All these testimony shows that the statement of prosecutrix are not consistent and at all reliable. It is settled principle of law that if the statement of prosecutrix is not reliable, the conviction can not sustain in rape cases. On these grounds, it is prayed that accused may kindly be acquitted.
G. RELEVANT PROVISIONS OF LAW
17. Relevant provision of section 328 IPC are reproduced for ready reference as under:-
Section 328 IPC- Causing hurt by means of poison, etc.,with intent to commit an offence.--
"Whoever administers to or causes to be taken FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 12 of 32 by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Further, Section 375 IPC defines rape with a woman against her will.
375. Rape. - A man is said to commit "rape" if he
-
.....
.....
.....
.....
under the circumstances falling under any of the following seven descriptions:-
First. - Against her will Secondly. - Without her consent.
Thirdly. - ....
Fourthly. - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. - ....
Sixthly. - ....
Seventhly. - ....
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 13 of 32 Explanation 1. - ....
Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Section 503 IPC - Criminal intimidation -
"Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation".
Explanation - A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Section 506 IPC- Punishment for criminal intimidation.-
"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 14 of 32 etc.- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or (imprisonment for life), or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which my extend to seven years, or with fine, or with both."
CASE LAW:
18. In the case of "Pradeep Kumar @ Pradeep Kumar Verma vs State of Bihar and Anr., Crl. Appeal No.1086 of 2007 decided on 17.08.2007, Hon'ble Supreme Court held as under:-
In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. And other legal dictionaries. Stroud defines consent as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. Jowitt, while employing the same language added the following:
Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.
In words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American courts are found:-
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 15 of 32 Adult female's understanding of nature and consequences of sexual act must be of intelligent understanding to constitute consent.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.
19. In the case of State of H.P. Vs Mango Ram, MANU/SC/0527/2000 :
2000 Cri. LJ 4027, the Hon'ble Supreme Court observed as under:-
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances".
20. In "AIR 2012 Supreme Court 2281, titled as Narender Kumar vs State (NCT of Delhi), the Hon'ble Supreme Court has held that :-
The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 16 of 32 and why in a rape case, the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and can not take support from the weakness of the case of defence. However, great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against accused by reliable evidence. The accused is entitled to the benefit of doubt.
Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of the defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecution on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
The court must act with sensitively and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasions complained of.
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 17 of 32
21. In the case of "State of UP Vs. M.K. Anthony AIR 1985 SC 48", the Hon'ble Supreme Court has laid down following guidelines which are to be followed by the courts.
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because of power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 18 of 32 rustic and refined lawyer."
On the basis of these principles of law I propose to examine the evidence available in the present case.
22. In the present case, accused has been put on trial with the allegation that on 02.10.2015, the prosecutrix was physically assaulted by the accused after administering to her stupefying substances in her cold drink at Flat No. B/501, MS Flat, Baba Kharag Singh Marg, New Delhi and when she regained consciousness, accused criminally intimidated her to kill in case she would disclose about the incident to any one.
23. In her complaint Ex.PW3/A prosecutrix has stated that she came toknow the accused at Bus Stand Kendriyal Terminal where he introduced himself that he was working as a driver and was driving the vehicle of a minister and the said minister needs a domestic help for cooking and to take care of his children, they exchanged their phone numbers, thereafter prosecutrix inquired number of times from the accused on the phone for her job, accused about 20-25 days prior to the incident asked the prosecutrix to hand over him documents and when prosecutrix went alongwith copy of ration card, addhar card and PAN card, accused took her from the bus stand to the said flat, there prosecutrix handed over her documents to the accused and thereafter, returned. On the fateful date of incident i.e. 02.10.2015, the prosecutrix again went to the Bus Stand Kendriyal Terminal after inquiry from the accused on 01.10.2015 at about 7:00 pm regarding her work, thereafter accused took her to some distance and started waiting for someone. In the meanwhile, he inquired from the prosecutrix as to whether she was hungry, thereafter, he took the prosecutrix and had lunch and thereafter again took the prosecutrix in his vehicle infront of RML Hospital FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 19 of 32 and alighted her there. Thereafter, accused asked her to come to Flat No. B/501 and asked the prosecutrix to reach there, accused made her to sit, served cold drink and after taking the cold drink, she started feeling headache/giddiness and when she regained her consciousness, she found herself naked and on inquiry, accused told her that for getting job she was to do all these things and thereafter on the asking of the prosecutrix, the accused took her on the ground floor through lift, left the prosecutrix to the RML Hospital in his vehicle and threatened her not to disclose anything otherwise he would get her killed and would show her nude video which he had prepared at the time of sexual assault.
24. In her statement U/s. 164 Cr.P.C Ex.PW3/C she has reiterated the similar facts except the fact that prior to taking the prosecutrix to the Flat No. B/501, initially, accused took her in flat near Bus Stand Kendriyal Terminal.
25. In her testimony before the Court prosecturix/PW3 has deposed almost similar facts as stated in the complaint. In addition to that she has deposed that she was served a cold drink in "cane".
26. In her cross examination prosecutrix/PW3 has testified that prior to about ten days to the present incident, she went to her native village Baliya, U.P. and stayed there for about two days and she was carrying her mobile phone bearing no. 9716371123, when she was at her native place. She denied the suggestion that on 01.10.2015 accused did not make any phone call to her or that it was she who made a call to the accused. However, from call location chart of her mobile phone, this testimony of prosecutrix appears to be doubtful as this phone number appears to be present in Delhi only.
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 20 of 32
27. She has further testified in her cross examination that on the date of incident, the accused called her to come at about 9-10 am at Central Terminal Bus Stand but she became late and would reach at 11-11:05 am. She has further testified that after reaching at bus stand, she found that accused was not present there and she made a call to him and thereafter, he reached there. She further stated that accused first took her to a flat opposite to a building where the banner of BJP was hoisting and they stayed there for about 20-25 minutes and thereafter prosecutrix asked the accused to call the concerned persons who will provide her job. She has further testified that it was around 12:30 pm they had taken food at the canteen/dhaba but she cannot tell the exact place/address. She has further testified that she does not remember at what time they reached near the gate of RML hospital where accused alighted her, however, it might have taken 45 minutes. She has further testified that after that he told her that the sir/madam might have come to the flat and thereafter accused took her in his car to the flat. Though PW3 has claimed that she has stated in her statement Ex.PW3/A and Ex.PW3/C that she has stated the fact that "further accused asked her to come to the flat after telling the same to the guard" but on confrontation the factum of taking the prosecutrix in the car, alighting her in front of RML Hospital and asking her to come to the flat after telling the same to the guard was found not mentioned. Even her testimony regarding her stay at different flats are contradictory in her different statement.
28. In her further cross examination, she has denied that she did not go to the flat no. B/501. Here, it is to be noted that in her cross examination the prosecutrix has stated that the "cane" of cold drink which the accused gave to her was opened by the accused in her presence. This statement of the FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 21 of 32 prosecutrix raises out doubt about her version that she was administered stupefying substance in her cold drink when she herself has deposed that "cane" of cold drink was opened by the accused in her presence. If "cane" was opened by the accused in her presence, there is no question of mixing anything in the "cane". It is not the case of the prosecutrix that the accused brought the cold drink "cane" in opened condition and gave it to the prosecutrix and thus, there was no occasion for her to see whether any stupefying substance was mixed in cold drink or not.
29. The prosecutrix has stated that the cold drink was given to her after 10- 15 minutes when she reached inside the flat. She regained her consciousness at about 4:00 pm. Thus, from the testimony of the prosecutrix probable time of sexual assault was between 1:30 pm to 4:00 pm.
30. The prosecutrix has denied that she has received any incoming call from mobile no. 7310208898 at 13:14:57 hours and have conversation for about 92 seconds or that she made out going call for about 10 seconds at 13:38:45 to mobile no. 9999660797 i.e. phone number of accused. She has further denied the suggestion that before 4:00 pm, she has also received a call from mobile no. 8467984790 at 15:40:49 for 72 seconds.
31. She has further testified that she did not take bath after the incident but she went to the toilet. She has further testified that after the incident, from the flat she did not make any call to any person or informed about the incident of rape nor she noted the number of rooms in Flat No. B/501. She has further testified that accused came with her downstairs through lift. At that time, there was no liftman/guard in the lift. She further testified that she went to the car of FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 22 of 32 the accused from the flat on foot though she was feeling giddiness. She has further testified that the accused threatened her when she alighted her from his car near the gate of RML hospital. There is no allegation that during this period any body stopped her raising hue & cry.
32. In her cross examination she has stated that in her complaint and statement U/s.164 Cr.P.C., she told that accused was working with the minister and therefore, he was in contact with higher officials but on confrontation it was found that this fact was not stated by the prosecutrix in her complaint Ex.PW3/B and Ex.PW3/C.
33. It is further testified by the prosecutrix in her cross examination that prior to the date of incident she might have met with the accused 2-3 occasions. Further, though at the first instance, the prosecutrix has denied the suggestion that on the date of incident, she was for most of the time were present in Connaught Place area but in her voluntary statement she has stated that she used to visit the area because of the hospital which was situated near Mandi House. This voluntary statement appears to be improvement in her version.
34. She has further testified that police did not recover her documents from the accused nor she did request to the police as she forgot to tell it to the police.
35. She has further testified that at the time of making call at 100 number, she has disclosed the name of the accused to the police. Here it is to be noted that she has deposed this fact contrary to the DD number Ex.PW11/A. Perusal of DD Ex.PW11/A i.e. call made by the prosecutrix to the police at 100 number, FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 23 of 32 shows that in the said DD she did not disclose the name of the accused but she has only stated that she had gone for securing work and there rape was committed after administering intoxicating substance to her. In her further cross examination she has testified that she did not remember whether she was alighted by the accused at the opposite side of the RML hospital or on the gate of the said hospital.
36. She has further testified that she was conscious when she was medically examined by the doctor and she has narrated the incident of rape in her MLC Ex.PW1/A. It was reported by the doctor that she appears to be "drowsy" though conscious. However, the prosecutrix in her examination has not stated any such fact that she was drowsy at the time of her medical examination. Here the testimony of PW1 Dr. Kavita becomes relevant who has recorded her statement. She has stated that at the time of her examination, prosecutrix was still drowsy and was not able to walk properly. According to PW1, prosecutrix stated that she was administered intoxicating substance in between12:00pm to 1:00 pm. She has further admitted that prosecutrix was not tested about the effect of any such drug upon the prosecutrix as it was to be done by the forensic laboratory. Thus from above testimony there is two contradictory version regarding condition of prosecutrix. Though doctor has recorded the observation that prosecutrix was in drowsy condition but prosecutrix did not utter a single word in this regard in her testimony.
37. In this regard, the report Ex.PW4/A becomes relevant. This report was prepared by Dr. Sandeep Monga PW4 who after test, has opined that "on chemical, TLC and GC-HS examination, ethyl and methyl alcohol, alkaloids, barbiturates and transquilizers", could not be detected in Exhibit 4. It is to be FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 24 of 32 noted here that Exhibit 4 is the blood sample of the prosecutrix. This report negates the factum of administering any intoxicating substance to prosecutrix.
38. The FSL Result Ex.PW5/A does not support the version of the prosecutrix. As per report, after examination it was opined in Ex.PW5/A that, "the DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profile generated from the source of exhibit '1j-1' (micro-slide) exhibit '1j-2' (micro-slide), exhibit '1j-3' (cottonwool swab) and exhibit '7a' (used condom) is not similar with the DNA profile generated from the source of exhibit '5' (liquid blood sample of accused)." Thus, there is no corroboration of the testimony of the prosecutrix that she was subjected to sexual assault on 02.10.2015 by the accused.
39. Even the prosecutrix contradicted the version of PW11/IO as she has stated that she never visited the place of occurrence after the incident but PW11 has testified that site plan Ex.PW3/B was prepared on the pointing out of the prosecutrix when they visited the place of occurrence.
40. It is to be noted that prosecutrix has denied that she had any conversation between the period she reached at the place of occurrence i.e. B/501 and she left the place of occurrence. According to the prosecutrix, she reached there at about 1:00 pm and left at 4:00 pm.
41. She admitted the mobile number of the accused as 9999660797. As per record Ex.PW8/A, during the relevant period one call was made from the mobile number 9716371123 i.e. phone number being used by the prosecutrix to the phone number of the accused i.e. 9999660797at about 1:38 pm for about 10 FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 25 of 32 seconds. Thus the prosecutrix even has denied the documentary evidence that no phone call was made from her phone to the accused's phone during the relevant period. It is to be noted that there is no explanation for making call to the accused by the prosecutrix when according to her she was at Flat No. B/501 with the accused.
42. Further from the call detail record, it is clear that on 02.10.2015, she has received/made phone calls to other persons during the relevant period from 1:00 pm to 4:00 pm. Thus, it raises doubt about the version of the prosecutrix that she was not conscious before 4:00 pm or regained the consciousness only after 4:00 pm. Even in her cross examination, prosecutrix admitted that prior to the date of incident, she had met the accused 2-3 times. This fact was not disclosed by the prosecutrix in her any of the statement.
43. In the present case though prosecutrix alleged that she had handed over documents to the accused. However, there is no recovery of the documents from the possession of the accused to corroborate the version of the prosecutrix nor any investigation has been conducted in this regard.
44. Though the prosecutrix has stated that she was working at a factory at Kapersera but in her cross examination she has voluntarily testified that she used to visit the area of Mandi House to go to the hospital. It is beyond comprehension that as to why a person who is working at Kaparsera used to visit the area of Connaught Place or Mandi House. All these testimonies of the prosecutrix raises doubt about the version of the prosecutrix.
45. In (2007) 1 Supreme Court Cases (Cri) 161 titled as Sadashiv Ramrao FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 26 of 32 Hadbe v State of Maharashtra and Anr. it was held as under:
"7. The doctor, who examined the prosecutrix at about 03.00 pm, did not find any injury on her body. There was only swelling on the upper lip but the prosecutrix had no case that this swelling on the upper lip was caused during the course of the incident. There were no injuries on her private parts and the doctor who had examined her was unable to give any opinion about the sexual intercourse allegedly taken place. It is important to note that vaginal swab was collected by the doctor and it was sent for chemical examination. Exhibit 43 is the pathological report and it shows that microscopic examination of the vaginal swab showed desquamated cervical cells and few co- oxalate crystals and fluid but no spermatozoa was found. The swab of vagina was taken on the same day and if any sexual intercourse had taken place in all probabilities, the vaginal swab would have contained some spermatozoa. The absence of these sperm casts a serious doubt on the prosecution version.
8. It may also be noticed that the appellant was medically examined on the same day by PW-10. In his evidence, he stated that smegma was present around the corona glandis. He further deposed that his examination nagatived sexual FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 27 of 32 intercourse and for collection of smegma around corona glandis a period of 24 hours is required. This scientific evidence also did not support the prosecution. Had there been a vigorous sexual act as alleged by the prosecutrix there could not have been the presence of smegma on his private part.
9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen".
46. In the judgment by Hon'ble High Court in case titled as Nand Kumar vs State (Govt. of NCT) Delhi 2016 (2) JCC 1366, it is held that:
"11. It is true that in 313 CrPC statement, the appellant did not take the defence of having physical relations with consent. Throughout, he claimed that he was falsely implicated and no such incident had taken place. At the same time, FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 28 of 32 the burden to prove its case remains upon the prosecution and it can not take advantage of the weakness of the case of the accused. The prosecution is to stand on its own legs. Merely because the accused did not take the defence to have physical relations with consent during trial, it does not absolve the prosecution to prove its case beyond reasonable doubt. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. DNA report (Ex.PX) falsifies the appellant's defence that no such incident of having physical relations with the prosecutrix had taken place.
12. Considering the materials on record, as discussed above, the possibility of physical relations with consent can not be ruled out. No explicit reliance can be placed on the testimony of the prosecutrix to base conviction".
In the present case even the FSL result does not support the version of the prosecutrix.
47. The Hon'ble Supreme Court further held in "AIR 1974 344. Harchand Singh and Another vs State of Haryana" as under:-
"11. The function of the court in a criminal trial is to find whether the person arraigned before it as FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 29 of 32 the accused is guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be unreliable, the result would necessarily be that the court wold be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation".
48. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 30 of 32 principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. In this case also, the evidence of the prosecutrix is suffering from serious infirmities and inconsistencies with other material and she had also made deliberate improvements/concealments on material point including her previous visits to the house of the accused, her denial about the receiving of phone calls during the relevant period. Further, even there is no medical or scientific evidence available on record to corroborate the version of the prosecutrix. Even the very basis of filing present complaint regarding administration of stupefying substance falls flat in view of chemical examination of blood sample of the prosecutrix which negates her version.
49. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 31 of 32
50. Thus, in view of the aforesaid discussions, it is held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Jitender Kumar stands acquitted for the charges levelled against him. He is directed to furnish fresh bail bond in the sum of Rs.50,000/- in terms of section 437A of Cr.P.C.
51. At this stage, fresh bail bond furnished u/s 437A of Cr.P.C and is accepted for a period of six months.
52. Previous bail bond stands cancelled. Previous surety stands discharged. Original documents, if any, be returned to the rightful claimant after endorsement canceled thereupon.
File be consigned to the Record Room after due completion.
(Devendra Kr. Sharma) Court No.7, Lock UP Building ASJ / FTC / PHC / NDD New Delhi /28.02.2017 Announced in open court on 28.02.2017 (Total number of page 32) (One spare copy attached) FIR No. 227/15 State vs. Jitender Kumar PS Pt. Street U/s 328/376/506 of IPC 32 of 32