Delhi District Court
State vs Tarachand on 17 April, 2018
IN THE COURT OF MS. RENU BHATNAGAR, ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK COURT : SAKET COURTS: NEW DELHI. SC No. : 1498/16 FIR No. : 1246/15 PS : Amar Colony U/s : 376/328 IPC State Versus Tarachand S/o Sh. Kishan VPO Jatoli, PS Hassanpur, Palwal, Haryana. Date of Institution : 19.01.2016 Judgment reserved for orders on : 05.04.2018 Date of pronouncement : 17.04.2018 J U D G M E N T Brief facts of the case: 1.
The case of the prosecution is that on 27.12.2015, the SC No. 1498/16 State Vs Tarachand Page No. 1 of 49 prosecutrix( name withheld to protect her identity) gave a complaint in the police station Amar Colony that in the month of June, 2015 she had met with accused Tarachand through one Roshan who told her that the accused can solve any problem within a second relating to anything like job, promotion, money, family, friend etc. The accused Tarachand had also dishonestly taken Rs. 10,80,000/ from the prosecutrix to solve her problem regarding her job. Thereafter, accused came in the house of prosecutrix at 191, Gali no.11, Amrit PuriB, Garhi, East of Kailash and sent her sister and his chela Sukhram to stand outside the door to stop the entry of anyone. The accused Tarachand showed some magic/miracles to the prosecutrix like flame in the bedsheet, converting of a piece of paper into a five hundred rupee note etc. The accused also asked the prosecutrix to drink water after blowing air from his mouth in the water which the prosecutrix had consumed and as a result of which she became unconscious. After regaining of her consciousness, the prosecutrix felt pain in her private parts. She then realized that accused Tarachand had committed rape upon her. The accused Tarachand and his chela had disappeared from there after committing rape upon her. The prosecutrix called him SC No. 1498/16 State Vs Tarachand Page No. 2 of 49 and the accused Tarachand had also told her that it was not rape but it was the part of his worship/black magic and if she will disclose the incident, his jinnat will kill her or any of his family members. The accused started to use her continuously and made physical relations with her many times. Thereafter, the accused started to threaten the prosecutrix to kill her sister and other family members through black magic. On this complaint, the case under Section 376/328 IPC was registered.
2. The prosecutrix was got counseled through NGO. She was sent to AIIMS for her medical examination. Site plan of the place of occurrence was prepared by the IO. Her statement u/s 164 Cr.P.C. was got recorded wherein she supported and reiterated the allegations against accused persons. The accused was arrested and his personal search were conducted. He was medically examined. The exhibits were sent to FSL After completion of investigation, chargesheet was filed in the court accused was sent for trial for the offence punishable u/s 328/376/506/420 IPC.
CHARGE :
3. After complying with the requirements contemplated SC No. 1498/16 State Vs Tarachand Page No. 3 of 49 under Section 207 Cr.P.C, the case was committed to this Court. Vide order dated 01.02.2016, prima facie case was made out against the accused for the offence under Section 328/376/506/420 IPC. The charge was framed to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused, prosecution examined the following witnesses: A. Material Witnesses:
(i) PW1 prosecutrix deposed that she does not remember the exact date but she had met a tantrik in June/July 2015. The accused was a tantrik. She had problem in her job. She was unable to get permanent job. Her neighbour Rohit advised her to contact the Tantrik to get solution of her problem. Rohit had given her his mobile number. She contacted the Tantrik on his mobile and told him that she is concerned about her job. She was not getting a good and stable job. The Tantrik then told her that he will solve her problem. The Tantrik then told her that he will solve any problem. The Tantrik sent her SMS giving his address.
SC No. 1498/16 State Vs Tarachand Page No. 4 of 49 She went there with her sister. She is not sure of his address since she had gone there once. She met him and told her problem. They came back. Next day, the Tantrik himself came to her house at East of Kailash at evening time. Two more persons were also with him. He gave a list to her sister to bring some articles from outside/market. Other two persons remained in her house. The Tantrik gave her some water like substance. She became unconscious. When she came into senses, she found that some wrong has happened with her. She was in dress at that time. She felt pain in her private part. There was also bleeding from her private part. By that time, she came into senses, the Tantrik and other two persons had gone away. Her sister came, however,she did not tell it to her sister because of being ashamed since her sister is elder to her. She then made call to the Tantrik and told him that he has done wrong with her. Firstly, he said that he did not do any wrong with her but later he told her that there is nothing wrong in it. It is a part of worship and it is not rape. He also told her that in case she will tell it to anyone, Jinnat (bhut pret) will kill her and her family member. He SC No. 1498/16 State Vs Tarachand Page No. 5 of 49 also said that he did not do anything rather Jinnat made him do so. He got her terrified. She was very upset. The Tantrik came at her house two more times and committed rape upon her. He made her fear by showing miracles ( fook marta tha, aag laga deta tha, bartan toot jate the).She got scared from the Tantrik. She then thought that she should face the situation irrespective of fact that anything may happen. She went to the police station and lodged complaint Ex.PW1/A. She then told the incident to her sister. Thereafter, she was taken to the hospital, however the doctor did not do internal examination since, according to the doctor the incident had happened earlier. The doctor prepared her MLCEx.PW1/B. She did not tell anything to the doctor, however, the police had gone with her who might have told to the doctor as to what had happened with me. The police also brought her in the court where she gave her statement. She was shown the statement Ex.PW1/C under Section 164 Cr.P.C after opening the sealed envelope in the court on which she has correctly identified her signatures at points A. She does not know the address of the Tantrik. She tried to SC No. 1498/16 State Vs Tarachand Page No. 6 of 49 get his address but she did not get it. She does not know how police arrested the accused. That Tantrik had long hair. He was heavy built. She deposed that she cannot say if the accused present in the court is the same Tantrik who did wrong with her. He also had some of his hairs white. As per court observation she stated that accused present in the court does not appear to be the same person who did wrong with her. She also stated that since long time has elapsed she cannot identify that person. She was not present at the time of arrest of the accused. She was called in the police station where many persons were there and police obtained her signatures on some papers. That Tantrik had taken from her total Rs. 10,40,000/ on different occasions for doing pooja and making her money double. She gave the payment in cash. The accused in return had given her a cheque Ex.PW1/D of Rs. 5,80,000/ drawn on HDFC Bank bearing the signature in the name of Sukhram. She had presented the said cheque in her account, however, it was dishonoured. She gave the cheque to the police which was taken in possession vide memo Ex.PW1/E. During the SC No. 1498/16 State Vs Tarachand Page No. 7 of 49 examination, witness resiled from her earlier statement. Ld. Addl. PP has cross examined the witness however nothing material came out from his cross examination.
(ii) PW2 Ms. Kamila had deposed that prosecutrix is her younger sister. It was in the last month of year 2014 or beginning of 2015. She and the prosecutrix were jobless. She does not remember the date and month. One day the prosecutrix told her that she had met with a Baba ( Tantrik ) who will perform Puja in her house to sort out their problems and after puja they will get the job and the money will start coming in their house. She does not remember the date and month but it was in summer season, again said it was normal season, one day the prosecutrix took her to that Baba at Palwal Haryana. They met that Baba who was also known as 'Guruji'. That Baba is the accused present in the court. She and the prosecutrix told their problems to the accused. The accused told her that first he will perform puja for the prosecutrix and thereafter for her. He asked her to go outside his room. He told her that he will call Jinn for the Puja. There was agricultural land near the SC No. 1498/16 State Vs Tarachand Page No. 8 of 49 house of the accused. The accused then performed puja. After three four days he along with one young boy came to their house. The accused sent her out of her house to take material for Puja. The prosecutrix, accused and that boy remained in the house. She brought the materials for Puja. The accused then started Puja with the prosecutrix in a room. After some time, the accused send her out of room and asked her not to sit near the gate and window saying that Jinn will come. After Puja they left. Thereafter the accused came to their house for several months after a gap of week, 10 days and month several times and did Puja. She told the prosecutrix that accused is not a good person but the prosecutrix rebuked her saying that she used to suspect on everyone. One day at about 03.30 PM prosecutrix called her that she has to talk to her. She called her in a coffee home in their area and asked her thinking about the accused that whether he is liar or a genuine person. She told her that she has been saying that accused is not a good person and he is a fraud. The prosecutrix told her that as and when the accused came to their house for performing Puja, he sent her out and thereafter, used to SC No. 1498/16 State Vs Tarachand Page No. 9 of 49 commit rape upon her saying that Jinn used to enter in his body and he used to do sex with her and also used to threaten her that if she will not oblige him, the Jinn will kill her and her family and will take her with him and due to this reason, she did not object and due to this reason and for betterment, did what the accused said to her. The prosecutrix also told her that accused has taken around Rs. 10 Lacs from her for making it double. One day in her presence accused told her that he will double the money and he kept the money in a carton and wrapped in a bedsheet and asked his chela to keep it in a corner and asked us not to touch it. They used to call the accused but he did not receive their call. They opened the carton and found that it was empty and only one currency note of Rs. 100/ was lying in it. Her parents used to give money to the prosecutrix for her study and she used to do modeling. She also borrowed the money from her and from her friends for giving it to the accused. They went to the police station. Initially, police suspected on her and made inquiries from the prosecutrix separately and then,police believed on them. Police recorded statement of the prosecutrix. On first SC No. 1498/16 State Vs Tarachand Page No. 10 of 49 day when accused reached their house she asked the accused as to how he used to do the money double. Accused asked her to go in kitchen and write something on a paper. She went in kitchen and wrote number 5,11,8 and4. At that time accused was sitting in room. He told her that she has written the aforesaid number. Thereafter, she believed on him and she came to know the name of accused Tara Chand. Ld. APP asked leading question about the date. She deposed that she does not remember whether she and prosecutrix had gone to meet the accused at Palwal on 28.06.2015.She deposed that she does not remember if she went to police station on 17.11.2015 to make complaint against the accused and that she is unable to recollect due to lapse of time.
(iii) PW7 Inspector Kamini Gupta, Investigating Officer deposed that on 27.11.2015 prosecutrix came to police station with her sister and gave a written complaint upon which she made endorsement Ex.PW7/A and got the case registered. She sent the prosecutrix with Ct. Kavita to AIIMS for her medical SC No. 1498/16 State Vs Tarachand Page No. 11 of 49 examination. After the medical examination prosecutrix came in the police station with her sister where IO recorded their statements. On 28.11.2015 she called the prosecutrix in the police station from where she took the prosecutrix for her statement under Section 164 Cr.P.C vide application Ex.PW7/B. The statement is Ex.PW1/C. She took the prosecutrix and her sister to the place near Palwal where she made the search of the accused but he was not found. On 03.12.2015 she with her staff went to Jaloti village, near Palwal. She took 2 3 officials with her from the local police station. On 04.12.2015 early morning, they conducted raid in the house of the accused. He was found in his house. They apprehended him. They brought the accused in the police station Amar Colony where she arrested the accused vide memo Ex.PW1/F and got conducted his personal search vide memo Ex.PW7/C. On 05.12.2018 accused was taken to AIIMS Hospital where he was medically examined qua his potency vide MLC Ex.PW7/D. The examining doctor handed over her the blood in gauze of the accused in sealed condition with sample seal which she seized vide memo SC No. 1498/16 State Vs Tarachand Page No. 12 of 49 Ex.PW7/E. On 28.11.2015 prosecutrix handed over her one cheque Ex.PW1/D which she seized vide memo Ex.PW1/E. The said cheque was issued by one Sukhram. She verified the cheque from the bank and obtained the address of Sukhram. She joined Sukhram in the investigation and made enquiry from him. The prosecutrix did not make any allegation against Sukhram. During investigation, she recorded the statement of the witnesses. She completed the investigation,prepared the chargesheet and filed in the court.
(B) Medical Witnesses:
(i) PW5 Dr. Varnit had deposed that on 27.11.2015 he had got conducted medical examination of prosecutrix vide MLC Ex.PW5/A and on her examination, hymen of prosecutrix was found torn ( old healed tear). Samples were not collected since the last episode was two months back. The casualty card is already Ex.PW1/B.
(ii) PW8 Dr. Rajesh Kumar proved the MLC Ex. PW SC No. 1498/16 State Vs Tarachand Page No. 13 of 49 7/D of the accused qua his potency to perform the sexual intercourse in normal circumstances. He had also taken the blood sample of accused in gauze, sealed the same and handed over the same to IO along with sample seal.
(C)Formal Witnesses:
(i) PW3 Ms. Manisha Khurana Kakkar, Ld. MM deposed that on 28.11.2015 an application for recording of statement of the prosecutrix under Section 164 Cr.P.C moved by IO/SI Kamini Gupta was marked to her being the Link Court. IO produced the prosecutrix before her and she recorded the statement of prosecutrix u/s164 Cr.P.C Ex.PW1/C which was given by the prosecutrix voluntarily and that she was specifically if anybody had put any pressure on her to make the statement before the court to which she replied in negative. After recording her statement the same was signed and sealed and sent to concerned court.
(ii) PW4 HC Suresh Chand deposed that on 27.11.2015 he was Duty Officer and at about 4.10 PM he received a SC No. 1498/16 State Vs Tarachand Page No. 14 of 49 rukka from SI Kamini Gupta upon which he recorded the FIR Ex.PW4/A and made endorsement on the rukka Ex.PW4/B and handed over to W/SI Kamini Gupta for further investigation.
(iii) PW6 Ct. Dheeraj Bhardwaj had deposed that on 03.12.2015 he along with Ct. Om Prakash and SI Kamini Gupta went to village Jaloti, UP near Kosi from where the accused was arrested. Many persons had collected there. They brought the accused at police station Amar Colony from where he was interrogated. His personal search was conducted. On 05.12.2015 he was taken to hospital where he was medically examined by the doctor. Ct. Om Prakash was with him. Doctor gave the exhibits in sealed condition alongwith sample seal to Ct. Om Prakash which he handed over to SI Kamini Gupta.The arrest memo is Ex.PW1/F.
(iv) PW9 WCt. Kavita took the prosecutrix to AIIMS hospital for her medical examination and handed over the MLC of the prosecutrix to the IO of the case.
SC No. 1498/16 State Vs Tarachand Page No. 15 of 49
(v) PW 10 Ms. Dolly, CIC counsellor had given counseling to the prosecutrix vide her report Ex. PW 10/A.
(vi) PW11 HC Om Prakash deposed that he along with WSI Kamini Gupta had gone to Village Jaloti near Hasanpur Palwal, Haryana from where the accused Tarachand was arrested vide arrest memo Ex. PW1/F and his personal search was conducted vide memo Ex. PW7/C. On 05.12.2015, he had taken the accused to AIIMS hospital for his medical examination and handed over the exhibits of the accused to the IO which were seized by the IO vide seizure memo Ex. PW7/E. (D) Court Witness: Vide order dated 21.03.2016, my Ld. Predecessor Court has summoned one Sukhram and he was examined as CW1 on 28.04.2016.
(i) CW1 Sukram Sharma deposed that he did not know the accused and never met him. He had seen him SC No. 1498/16 State Vs Tarachand Page No. 16 of 49 for the first time in the Court. He had an account in HDFC Bank at Palwal, Haryana. He identified his hand writing and signature on a cheque Ex.PW1/D for an amount of Rs.5,80,000/. He stated that he had given the said cheque to a Sadhu Mahatma whom he used to meet at the Palwal Railway Station. He had taken the said cheque from him to double the amount. He had not met him for about 78 months. CW1 was questioned if the accused present in the Court was the same Sadhu Mahatma whom he used to meet and issued the said cheque to which he denied.
He did not know that the aforesaid cheque has been recovered from the possession of the accused. Police had never met him in this case. He could not tell as to how the cheque came with the accused. Police never inquired from him about the cheque. When he issued the cheque, there was zero balance in his account. He was 7 th class pass and was married. He knew that Sadhu Mahatma for about 3 - 4 months. He met him 3 - 4 times. His shop from the railway station was about 1½ kila. He used to go to SC No. 1498/16 State Vs Tarachand Page No. 17 of 49 station oftenly. He used to catch train from his house to his shop. Sadhu baba used to sit under the pipal tree near the ticket window of the Railway Station.. He used to be surrounded with 2 - 3 persons. One day he was sitting on the station. That Sadhu baba contacted him. He told his problem that he was in financial constraint. He then promised to solve his problem. He asked the cheque from him which he gave. He did not meet Sadhu baba for about 7 - 8 months. He went 2 - 3 times but could not meet Sadhu. He denied that the accused the same Sadhu whom he had met. He had long beard. He used to wear yellow clothes.
CW1 was crossexamined, Ld. Addl. PP for the State wherein he denied that the accused is the same Sadhu Baba whom he met and gave the said cheque. He also denied that he was suppressing the truth since he had been won over by the accused. He denied that he and the accused together had purchased a truck. He admitted that he has a brother who lost his mental balance. He denied that he had shown his brother to the accused and the accused had treated his SC No. 1498/16 State Vs Tarachand Page No. 18 of 49 brother. He denied that after division, the truck came in his ownership and in lieu thereof he issued the aforesaid cheque to the accused. He denied that he had gone with the accused to the house of the prosecutrix. He admitted that the statement Ex.CW1/PX is in his hand.
The witness stated that before coming to the Court, he was pressurized by the family of the accused to state the above facts and now he wanted to state true facts of the case.
He deposed that he came in contact with the accused 7 - 8 months before the incident in connection with the illness of his brother. The accused does jhad phook (tantrik ilaz). The accused treated his brother. He and the accused then purchased the truck in partnership. He took the truck and gave the cheque Ex.PW1/D to the accused. It was given as security. He had come with the accused at Amar Colony. He had stopped near the mandir. However, the accused went inside a house.The accused is the same Sidh Baba whom he met. He wrongly stated to the Court that he did not know the accused or nor met SC No. 1498/16 State Vs Tarachand Page No. 19 of 49 him or that he never met the police or that he never came with the accused in the area of Amar Colony. He had seen the prosecutrix in the police station Amar Colony. He was called in the police station in connection with the said cheque. He admitted that police had told him that the prosecutrix has alleged that she was raped by the accused after doing some tantra vidya on her.
CW1 was also crossexamined by Ld. counsel for the accused wherein he denied that he was changing the statement again and again due to fear. He denied that accused is not the same person whom he issued the cheque Ex.PW1/D. He also denied that he was deposing falsely to save himself. He had signed the statement Ex.CW1/PX. He also denied that his earlier deposition before the court was the correct deposition and now during his cross examination, he had given the wrong deposition. He also denied that he has changed his statement to extort money from the accused.
SC No. 1498/16 State Vs Tarachand Page No. 20 of 49 Statement of accused and Defence taken by accused:
5. Statement of accused was recorded under Section 313 Cr.P.C wherein the accused denied all the allegations levelled against him and alleged false implication. He has also stated that he had to take Rs. 2,50,000/ from CW1 Sukhram. When he contacted him for his money, he threatened him to teach a lesson. After 1015 days, he was arrested by the police. He never met the prosecutrix or her sister nor took any money from them nor did any trantrik activity with them. He had been falsely implicated by the police at the instance of Sukram who had to repay him Rs. 2,50,000/.Accused preferred to lead defence evidence.
6. Defence Evidence
(i) DW1 Vijay Singh deposed that he knew the accused, since his birth. He is married and has three children. He is a farmer by profession. He is not a Tantrik. DW1 was cross examined by Ld. Addl. PP for the State wherein he stated that accused is his neighbour. They have visiting terms. He did not know anything about this case. He voluntarily stated that he only knew that the accused was arrested in a case in Delhi. He did not try to know in which case and why SC No. 1498/16 State Vs Tarachand Page No. 21 of 49 the accused was arrested. He denied that the accused is not a farmer and he is a Tantrik. He also denied that he is deposing falsely being relative to the accused.
(ii) DW2 Lakhmi Chand he knew the accused present in the as they both hail from the same village. In the year 2015, he had accompanied the accused to village Kheri in connection with some financial dealings between the accused and the said person whose name he did not remember then. The accused used to say that the said person owes him Rs. 2.5 lacs. He also stated to the said person to return the amount of the accused but there was no positive response from his side and he has even threatened them. After sometime he came to know that the accused is implicated in this case. The house of accused was situated in the middle of the village. The accused was doing agriculture work only. He was crossexamined Ld. Addl. PP for the State wherein he stated that he had not given in writing to the police station or any where else or in any court that the accused was falsely implicated in this case. He knew the accused since birth and he was his very good friend. He had been called by the accused to depose in this matter and accusedhad asked him in SC No. 1498/16 State Vs Tarachand Page No. 22 of 49 the past that he might need his cooperation inthis case. He could not tell as to where accused was present on the day of incident i.e. in June/July 2015. He denied that since he was childhood friend of accused therefore I was deposing falsely in order to save him. He further denied that he had not made any complaint to higher officer or any court that accused was rightly booked in this case.
(iii) DW3 Bhikam Singh deposed that accused Tarachand is from his village and he knew him from his childhood. Tarachand told him that he had to take some money from Sukhram. He had gone with accused Tarachand to village Kheri to take money from Sukhram as Tarachand had to take around 2/2.5 lacs from him and once Sukhram threatened accused Tarachand when he demanded his money from him that he does not have money and go back otherwise he will implicate him in serious false case. The threat was given in his presence. Thereafter, they came back to their village. After about 1/1 ½ month he came to know that accused Tarachand has been implicated in this false case by Sukhram with the help of prosecutrix. It was in the month of April when he visited with accused in the house of SC No. 1498/16 State Vs Tarachand Page No. 23 of 49 Sukhram. Accused is a well behaved man and he cannot commit such a heinous crime. Accused is a farmer by profession and accused is not a Tantrik by profession.
DW3 was crossexamined by Ld. Addl. PP for the State wherein he has stated that he has come to court to depose at his own will and nobody else requested me to do so. Accused is from his village therefore he visited from him in the house of Sukhram. He has not made any complaint with senior police official or in any court that accused was wrongly implicated in this case. In the month of June 2015, he was in his village and accused was also in the same village. He denied that he was deposing falsely in this case as accused is from his village and known to him since long time. He denied that he has not given any written complaint to any senior officer or in any court that accused was wrongly implicated in this case because he was booked in this case rightly.
After examining DW3, accused closed his evidence.
Arguments of Ld. Addl. PP for State:
7. It is argued by Ld. Addl. PP for state that though the prosecutrix has not identified the accused but the identity of SC No. 1498/16 State Vs Tarachand Page No. 24 of 49 the accused is established from the statement of the sister of prosecutrix. It is stated that in all other material particulars, the statement of prosecutrix is consistent. It is stated that even the retracted testimony of a witness can be relied upon if it is corroborated by other evidence. It is stated that the Court has examined CW1 Sukhram and his statement also supports the prosecution case. Hence, it is prayed that the accused be convicted on the basis of evidence.
Arguments of the Ld. Counsel for accused:
8. It is argued by ld. Counsel for accused that the prosecutrix is hostile on the point of identity of the accused as well as on the arrest and on the point of handing over cheque to her by the accused. It is stated that CW1 Sukhram is also hostile and moreover, his wavering statement is not believable. It is argued that Rohit who has introduced the prosecutrix to the tantrik, has not been made a witness in this case. Even CW1 was not arrested nor made a witness and the Court had to call the witness. However,the statement of this witness Sukhram is not believable. It is argued that there is also discrepancy in the statement of the examining doctor of the prosecutrix and the prosecutrix herself on the point as to SC No. 1498/16 State Vs Tarachand Page No. 25 of 49 who has given history to the doctor. There is a delay of one month twenty seven days in lodging of FIR. No exhibits were collected. There is also contradiction with regard to the time when the incident was reported to her sister by the prosecutrix. There is also contradiction with regard to the number of chelas of tantrik who had come with the accused. There is also contradiction in the testimony of the constable PW6 and IO with regard to the place of arrest. The accused has produced three witnesses to prove that he was not a tantrik but was a farmer by profession. It is stated that in fact CW1 Sukhram had some financial transaction with the accused due to which he implicated him in this case. The prosecutrix has deposed that she has gone to the house of accused in jungle whereas the house of the accused is situated in village. There is no mention by the prosecutrix with regard to the payment of Rs. 10.8 lakhs to the accused by her to the police in her statement or even to the Magistrate under Section 164 Cr. P.C and her testimony on this point of payment of money or of giving of cheque by the accused is wholly unreliable. It is stated that the signature of Sukhram on cheque or in the statement in the court are different. No return memo of the cheque is filed to show that the cheque was SC No. 1498/16 State Vs Tarachand Page No. 26 of 49 infact returned for insufficient funds. No CDR of the mobile phone of the prosecutrix, accused and the said Rohit is collected by the IO. As per the statement of the sister of the prosecutrix her mother used to be there in the house. If that would have been the position, the accused could not have gone to the house of prosecutrix or could not have committed rape. The parents of the prosecutrix and the landlord are not aware of the incident. The sister of the prosecutrix has also made complaint against her husband under Section 377 IPC and all the sisters are in the habit of extorting money on false allegations. Hence, it is prayed that accused be acquitted. Ld. Counsel for accused has cited Rajesh Patel v State of Jharkhand 2013 (2) RCR (Criminal) 346; 2. Surajmal v State (Delhi Administration) AIR 1979 Supreme Court 1408; 3. Ved Prakash v State of Haryana 2015 (1) RCR (Criminal) 807; 4. State of NCT of Delhi v Rashid 2015 Law Suit (Del) 724.
Conclusion:
9. I have heard the submissions of both the parties and have perused the record.
10. Before appreciating the facts of this case, it is SC No. 1498/16 State Vs Tarachand Page No. 27 of 49 necessary to know the ingredients of the offence of rape by resorting to the provisions of section 375 read with section 376 IPC. Section 375 IPC provides as under: "375. Rape. A man is said to commit "rape" if he (a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : First. against her will.
Secondly. Without her consent Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
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.With her consent when, at the time of SC No. 1498/16 State Vs Tarachand Page No. 28 of 49 giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent.
Explanation 1. For the purpose of this section, "vagina" shall also include labina majora. 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 specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape. Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
11. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced SC No. 1498/16 State Vs Tarachand Page No. 29 of 49 upon a woman against her will. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Lett. 130b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials"
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the seven clauses in Section 375 IPC.
12. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended b y any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
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13. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
14. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word ' consent' and 'submissions' as shown below: "(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be " consent" as SC No. 1498/16 State Vs Tarachand Page No. 31 of 49 understood in law.
(2) 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 moral quality of the act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
(4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or SC No. 1498/16 State Vs Tarachand Page No. 32 of 49 without what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
15. The essence of rape is absence of consent. The consent means intelligent and positive concurrence of woman. A woman is said to consent, only when she freely agrees to submit herself while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under influence of fear or terror or false promise is not consent. If the physical relations are made with consent, that cannot be termed as rape.
16. SECTION 506 IPC PROVIDES AS UNDER:
506. 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 fine, or with both.
If threat be to cause death or grievous hurt, etc. And if the threat to be the cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable SC No. 1498/16 State Vs Tarachand Page No. 33 of 49 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 may extend to seven years, or with fine, or with both.
17. Section 328 IPC provides as under:
328. Causing hurt by means of poison, etc., with intent to commit an offence Whoever administers to or causes to be taken 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.
18. Section 420 IPC provides as under:
420. Cheating and dishonestly inducing delivery SC No. 1498/16 State Vs Tarachand Page No. 34 of 49 of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, after or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years,and shall also be liable to fine.
Definition of cheating is provided in Section 415 IPC which provides as under:
Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, SC No. 1498/16 State Vs Tarachand Page No. 35 of 49 mind, reputation or property, is said to "cheat"
19. To prove the offence the most material witness in this case is the prosecutrix. However, the prosecutrix turned hostile on the point of identity of the accused. She has deposed that the accused does not appear to be the person who did wrong act with her. As per her version in the Court, the culprit had long hair, was heavy built and some of his hairs were white. She was declared hostile and was crossexamined by Ld. APP for State. However, in her crossexamination from the side of Ld. APP for the state she had denied the suggestion that the accused was the same guruji who used to visit her house alongwith Sukhram and one more person and committed rape upon her. She also denied that the accused had taken Rs.10,40,000/ from her and gave her a cheque of Rs. 5,80,000/ from the account of Sukhram.
20. The prosecutrix is also hostile on the point of arrest of the accused. During her crossexamination by Ld. APP for State, though she admitted that she was called by in the police station to identify said guruji when they had apprehended him but she denied that the said guruji was in the police station SC No. 1498/16 State Vs Tarachand Page No. 36 of 49 who was identified by her or thereafter she signed his arrest memo. She denied that the police had arrested the said guruji in her presence. She deposed that she signed the arrest memo at the instance of police. She denied the suggestion that the accused is the same guruji who was arrested by the police or that after identifying him she signed on the arrest memo of the accused. She also deposed that she was not present at the time of arrest of the accused and was called in the police station where many persons were present and the police had taken her signatures on some papers.
21. Hence, the prosecutrix has relied from her statement so far as the identity of the accused is concerned and nothing incriminating on the point of identity of the accused could come in her crossexamination from the side of ld. APP.
22. Now let us scrutinize the testimony of prosecutrix on other aspects. No specific date of incident is mentioned by the prosecutrix when she was raped for the first time by the accused in her house. As per her version, her neighbour Rohit advised her to contact tantrik to get solution of her problem in SC No. 1498/16 State Vs Tarachand Page No. 37 of 49 the job and gave her his mobile phone. She met the tantrik alongwith her sister in JuneJuly 2015 after contacting him who called her on the next day to solve her problem. She returned and on the next day, tantrik along with two persons came to her house in East of Kailash, sent her sister to the market to bring the articles mentioned in the list, gave her some water like substance making her unconscious and when she gained consciousness she realized some wrong thing has happened with her. The tantrik and two persons had gone away. Firstly, she contacted the tantrik who stated that it is a part of worship and not a rape and that she should not tell it to anyone otherwise Jinnat will kill her and her family members. The prosecutrix got terrified. Thereafter, again for 23 times, the accused came to her house, and committed rape upon her and scared her by showing miracles, however, ultimately, the prosecutrix thought to face the situation and lodged the complaint. Hence, from the testimony of the prosecutrix, it is clear that she has not given any specific date of incident of rape happened with her on the first time, second time or third time in the Court or to the police. However, in the alleged history of rape given to the doctor she has given the history of rape multiple times since June 2015 and lastly on 1 st October SC No. 1498/16 State Vs Tarachand Page No. 38 of 49 2015 at her home. Even in the statement under Section 164 Cr. P.C, the prosecutrix has mentioned that the tantrik used her till October 2015 after scaring her. As per the deposition of the prosecutrix in the Court she has not given this history to the doctor, which was given by the police. However, if we go by the history or the statement of the prosecutrix given to the magistrate under Section 164 Cr.P.C wherein the last incident of rape had happened with her in October 2015 there is a delay of one month 27 days in lodging of FIR by the prosecutrix and several months delay if first episode of rape is considered.
23. During this period when she was being raped by the accused, she did not reveal the incident either to her sister, her mother or her other family members who all were residing with her. Moreover, as per the statement of PW2 sister of the prosecutrix her mother used to remain in the house at all the times. The other two sisters of the prosecutrix and her two other school going brothers were also residing in the same house. This delay is not sufficiently explained by the prosecutrix. She deposed that she did not lodge the complaint with the police as she was scared by tantrik.
SC No. 1498/16 State Vs Tarachand Page No. 39 of 49 Admittedly she was residing with her parents brothers and sisters and her mother was a housewife and used to reside in the house throughout the time and rape was committed with her in the house 23 times. It is not comprehensible that a girl who is living with her family was raped in her own house but would not reveal the incident to her family members.
24. So far as the identity of the accused is concerned, ld. Addl. PP for State has argued that the identity of the accused as same tantrik/guruji is established from testimony of the sister of the prosecutrix PW2. As per the prosecution story whenever the rape was committed in the house of accused, PW2 was sent outside the house for purchasing material of puja.
25. So far as PW2 is concerned, she is not the witness of incident of rape. The most material witness to prove that rape was committed by the accused is the prosecutrix but she has not identified the accused as the culprit and denied him to be the person who committed rape with her or criminally intimidated her or given the cheque to her. In such circumstances, the statement of PW2, identifying SC No. 1498/16 State Vs Tarachand Page No. 40 of 49 the accused is not convincing because PW2 came to know of rape only at a very later stage, before registration of FIR. The prosecutrix has not revealed the incident of rape to PW2 . As per her version she narrated the incident to her sister when the FIR was lodged whereas PW2 has deposed that the prosecutrix narrated the incident to her by calling her to the coffee home in their area. As per the statement of PW2 sometime the accused used to come to their house at the call of prosecutrix or at times after calling himself. As per her version, the accused used to come to her house only. The prosecutrix was staying in other house across the gali. The prosecutrix has not stated so. The testimony of PW2 shows that both the prosecutrix and PW2 tried to conceal the visiting of the accused to their house from their family. PW2 has even stated that Sukhram was known to her and he was relative of the accused and that she had met Sukhram number of times. She had met Sukhram in her house when he came with the accused, in the police station when he came with his wife and also in the park near to her house. As per the deposition of the PW2, the cheque was given by the accused to the prosecutrix in her presence as well as in the presence of Sukhram before the registration of the case, but prosecutrix SC No. 1498/16 State Vs Tarachand Page No. 41 of 49 thought it proper not to speak about the cheque in her complaint made to the police. As per the allegations of the prosecutrix, Sukhram had also visited with the accused when he committed rape with her but the said Sukhram was not made an accused in the case and left after making inquiry by IO. There was not question of meeting Sukhram or the accused in the park number of times by PW2 if he was chela if the said guruji.
26. No proof is collected by IO to prove that the prosecutrix had given Rs. 10,80,000/ to the accused . IO has deposed that since the prosecutrix did not disclose the names of her friends and relatives she could not verify the source of Rs. 10,80,000/. She did not try to ascertain if the cheque was presented in the bank by prosecutrix or not. As per the statement of IO the prosecutrix even did not inform about the contact number or address of Rohit. No call detail records of mobile of accused and prosecutrix were collected by IO.
27. As per the statement of IO she had served notice upon Sukhram and made inquiries regarding the aforesaid cheque. The said Sukhram is neither the accused nor the SC No. 1498/16 State Vs Tarachand Page No. 42 of 49 witness in this case. However, my predecessor court had thought it fit to summon Sukhram as a court witness in this case after the crossexamination of the prosecutrix and Sukhram was summoned as Court witness vide order dated 21.03.2016 exercising the inherent power under Section 311 Cr. P.C as the Court found that Sukhram is a material witness in the prosecution case. Sukhram is examined as CW1, however, he has given a wavering statement in the Court. Earlier he did not identify the accused and stated that he never met him before and the cheque Ex. PW1/D was given by him to a sadhu mahatma for doubling his money. He stated that he does not know how the cheque came in possession of the accused. He was crossexamined by Ld. Addl. PP for State as well as Ld. Counsel for accused. However, during his crossexamination from the side of State, this witness has taken a sommersault and stated that before coming, to the Court, he was pressurized by family of the accused to state the incorrect facts and then he deposed again that accused did tantrik ilaz and treated his brother. He also deposed that he and accused had purchased a truck in partnership, he took the truck and had given the cheque Ex. PW1/D to the accused as a security cheque. He resiled from SC No. 1498/16 State Vs Tarachand Page No. 43 of 49 his statement made by him in examination in chief that he does not know the accused. The testimony of the witness is wavering statement and such a witness who is giving inconsistent statement at one stage cannot be relied.
28. In this regard, the reference can be held to the case Surajmal v State (Delhi Administration) AIR, 1979 Supreme Court 1408 wherein Hon'ble Supreme Court has observed:
It is well settled that where witnesses make two inconsistent statements in their evidences 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.
29. In view of the above, the statement of CW1 is not believable and convincing.
30. Apart from this there are contradictions in the statement SC No. 1498/16 State Vs Tarachand Page No. 44 of 49 of prosecutrix with other evidence on record. The prosecutrix has stated that the history of incident was not given by her but might have been given by police whereas the concerned doctor who has examined the prosecutrix has deposed that history was given by her own. The prosecutrix has deposed that she has gone to the house of accused in a jungle whereas the accused has stated that he is residing in village. On the point of Rs. 10.8 lakh also the prosecutrix remained silent in her statement given to the police, no return memo of the cheque is filed. As per the prosecution case, the prosecutrix has stated to the IO, not to make investigation from landlord and not to inform her parents. There is also contradictions with regard to the time and place when the incident was reported to PW2 by prosecutrix. There is also contradiction with regard to the number of chelas of tantrik who had come along with him for the first time when they visited the house of prosecutrix. In the complaint to the police Ex. PW1/A as well as in the statement Ex PW1/C under Section 164 Cr.P. C given to the magistrate, the prosecutrix has mentioned that the tantrik alongwith one chela had come to her house whereas in the Court she has deposed that two chelas had come with the accused and one of them was Sukhram. Hence, all these SC No. 1498/16 State Vs Tarachand Page No. 45 of 49 contradictions make the testimony of the prosecutrix unreliable.
31. The most material witness to prove the offence of rape is the prosecutrix. The court, while evaluating the facts of a case, is supposed to form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable:
a) the witness's statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other SC No. 1498/16 State Vs Tarachand Page No. 46 of 49 corrupt inducement to give evidence and
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
32. It is for the court to consider in each case whether as a result of cross examination, the witness stands discredited or can still be believed in regard to any party of his testimony. In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
33. So far as the medical evidence is concerned no exhibits were collected as prosecutrix was medically examined after about one month and 27 days of the last episode of rape. Hence, the medical evidence is of help to the prosecution case.
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34. The accused has examined three witnesses in his defence who have deposed that the accused is not a tantrik and was a farmer by profession. The other witnesses of the accused have deposed about the financial dealings between the accused and Sukhram who threatened to implicate the accused if he demand his money (2.5lakh). The accused has also taken the defence that he does not know the prosecutrix and it was Sukhram who owed money to him and threatened to teach him a lesson when he demanded his money back. Since CW1 Sukhram has admitted the financial transaction between him and accused, the defence of accused seems to be plausible.
35. Accordingly, in view of above discussion, the testimony of the prosecutrix is not of sterling quality. Even the testimony of PW2 is not convincing and cogent. Though it is a settled law that conviction of the accused can be based on the sole testimony of prosecutrix, if it inspire confidence but the statement of prosecutrix is not trustworthy and the lacuna in her statement cannot be filled by PW2 whose testimony is also not convincing SC No. 1498/16 State Vs Tarachand Page No. 48 of 49
36. In view of above discussion the prosecution has failed to prove its case beyond reasonable doubt against the accused. Giving the benefit of doubt, accused is acquitted of the offences under Section 428/376/506/420 IPC.
37. In view of the Section 437A of Cr.P.C., accused is directed to furnish bail bond in a sum of Rs. 30,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any.
38. File be consigned to Record Room.
Announced in the open court today i.e 17.04.2018 ( Renu Bhatnagar) ASJSpl. FTC/ SED/Saket Courts New Delhi SC No. 1498/16 State Vs Tarachand Page No. 49 of 49