Delhi District Court
State vs Mr. Rajan on 2 January, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE -03, WEST,
TIS HAZARI COURTS, DELHI
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
State versus Mr. Rajan
Son of Mr. Tek Chand,
Resident of R-272, Raghubir Nagar, Delhi.
FIR Number 109 of 2011.
Police Station Khyala.
Under sections 376 and 506 of the Indian Penal Code.
Date of filing of the charge sheet before : 15.12.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file in the Sessions Court : 19.12.2011.
after committal
Date of transfer of the file to this Court : 24.08.2012.
Arguments concluded on : 02.01.2013.
Date of judgment : 02.01.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Accused Mr.Rajan on bail with counsel, Mr.Mahender
Singh.
Ms.Sadhna Singh, counsel for the Delhi Commission for
Women (DCW).
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage?
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 1 of 36 ::-
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Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Mr.Rajan, the accused person, has been charge sheeted by Police Station Khayala for the offence under sections 376 and 506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that in the month of September 2010 and after that at R-272, Ragubir Nagar, Delhi within the jurisdiction of Police Station Khayala, he had committed rape upon the prosecutrix (name withheld to protect her identity) a minor girl, aged about 14 years, without her consent and threatened her with threat to her life.
CHARGE SHEET AND COMMITTAL
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 15.12.20122 and after its committal, the case was assigned to the learned predecessor of this Court vide order dated 19.12.2011 of the learned Sessions Judge, Delhi. Further, the case has been assigned to this Court for 24.08.2011 vide order bearing number 1608/38427-446/F. 3(4)/ASJ(141)/Gaz./2012, dated-30.07.2012 of the learned District and Sessions Judge.
CHARGE
3. Vide order dated 16.04.2012, charge for the offence under sections 376 and 506 of the IPC was framed against the accused Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 2 of 36 ::-
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Mr.Rajan to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, the prosecution had examined as many as 13 witnesses i.e. the prosecutrix as PW1; Ms. Bimla, mother of prosecutrix as PW2; Ms. Savitri Devi, Principal Govt. MC Primary School as PW3; Dr. Y.N.Maurya, who examined the prosecutrix as PW4; Dr.Sunil Kakkar, who determined the age of prosecutrix as PW5; Dr. Sunita Seth, who prove the MLC of prosecutrix which was prepared by Dr. Anjali, who left the job as PW6; ASI Bal Kishan, the duty officer as PW7; Ct. Nihal Singh, witness of investigation as PW8; Lady Ct. Babita, who take the prosecutrix to DDU hospital for medical examination as PW9; Mr. Rajinder Kumar, learned Metropolitan Magistrate, Delhi, who prove the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C) of prosecutrix as PW10; WSI Bimla, the investigation officer of the case as PW11; HC Mast Ram, Mal khana Moharrar of the case as PW12; Ct. Pradeep, who deposited the sealed pulanda at FSL as PW13.
5. The accused and his counsel admitted the evidence of the FSL expert and the FSL reports. They are not disputing that the exhibits pertaining to the prosecutrix and the accused were examined by the FSL expert and the reports regarding the same were filed in the Court. The reports are not in dispute. Statement of the accused to the same effect has been recorded on 07.11.2012.
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 3 of 36 ::-
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STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
6. In his statement under section 313 of the Cr.P.C., recorded on 24.11.2012, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. The prosecutrix has not deposed against him. Accused has preferred not to lead any evidence in his defence.
ARGUMENTS
7. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
8. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 376 and 506 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
9. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record.
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 4 of 36 ::-
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CASE OF THE PROSECUTION, ALLEGATIONS AND
DOCUMENTS
10. The prosecution story unveils with the recording of the statement of the prosecutrix (Ex. PW1/A) that in the month of September 2010 and after that at R-272, Ragubir Nagar, Delhi, he had committed rape upon the prosecutrix (name withheld to protect her identity) a minor girl, aged about 14 years, without her consent and threatened her with threat to her life. The rukka (Ex. PW11/A) was prepared on the basis of which FIR (Ex. PW7/A) was lodged and the certificate under section 65B of the Indian Evidence Act (Ex. PW7/B) was issued. The prosecutrix was medically examined vide MLC (Ex.PW4/A and Ex.PW6/A) in DDU hospital and the exhibits were seized vide memo (Ex.PW9/A). Application for permission to get bony age of the prosecutrix (Ex.PW11/D) was moved and the ossification test of the prosecutrix was conducted after the delivery of the child. The DNA was not got conducted as the same was refused by the prosecutrix. The application for recording the statement (Ex.PW10/A) was moved by the IO; the statement of the prosecutrix under section. 164 Cr.P.C. (Ex.PW1/B) was recorded; certificate to the proceedings (Ex.PW10/B) was given by the learned Metropolitan Magistrate and a copy of the statement was given to the IO on application (Ex. PW10/C). The admission and withdrawal register (Ex. PW3/A) and admission form (Ex. PW3/B and Ex. PW3/C respectively) show the date of birth of the prosecutrix as 14.02.1998. The site plan (Ex. PW11/B) was prepared and the proof of age of the prosecutrix (Ex. PW11/C) was taken. The Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 5 of 36 ::-
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accused was arrested vide arrest memo (Ex. PW8/A), his personal search was conducted vide personal search memo (Ex. PW8/B), he made his disclosure statement (Ex. PW8/C) and he got the pointing out memo (Ex.PW8/D) prepared. The accused was medically examined in the DDU hospital vide MLC (Ex. PW4/B) and the exhibits were seized vide seizure memo (Ex. PW8/E). On 07.06.2011 two sealed pullandas and one sample seal were deposited in the malkhana vide entry number 566 in register number 19 (Ex. PW12/A). On 25.06.2011 two sealed pullandas and one sample seal were deposited in the malkhana vide entry number 646 in register number 19 (Ex. PW12/B). On 26.08.2011 four sealed pullandas and two sample seals were sent to FSL vide RC number 102/21/11 (Ex. PW12/C). The reports of the FSL (Ex. PX and Ex. PY- admitted by the accused on 07.12.2012) were obtained.
TESTIMONIES OF THE PROSECUTION WITNESSES
11. PW1, the prosecutrix, has deposed that she worked in the factory of the accused (correctly identified) for about one year. She developed love and affection with the accused. He promised to marry her and had sexual relationship with her as a result of which she became pregnant. When she was pregnant for about 5-6 months, she came to know that the accused was already married. He offered to marry her but she refused as he was already married. She left the job and started living in her house in Delhi. She told her family about her pregnancy and the conduct of the accused. Some ladies from an NGO came to her house and they suggested to her and her family to lodge a complaint against the Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 6 of 36 ::-
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accused. She was not willing to lodge any complaint against the accused at that time. The ladies took her to the Police Station Khyala and her statement (Ex.PW1/A) was recorded. She was medically examined at the DDU Hospital. Her statement under section 164 of the Cr.P.C. (Ex.PW1/B) was recorded by the Magistrate at Tis Hazari Court. At that time she was not willing to proceed further with the case as she was eight months pregnant and about to deliver the child. She delivered a male child on 21.08.2011 who is named Veer and is with her. She still does not want to continue with the case.
12. As the prosecutrix was hostile and has resiled from her previous statement, she was cross examined by the Additional Public Prosecutor. She has denied making any allegation against the accused in her statement to the police.
13. In her cross examination on behalf of the accused, she has admitted that they were in love with each other and whatever happened was with their consent. She has admitted to be correct that she never wished to lodge the complaint against the accused and the lady from the NGO had forced her to lodge the complaint. She has admitted to be correct that she had not made any written complaint to the police. She has admitted to be correct that she had not read Ex.PW1/A herself and she had been made to sign it. She has admitted to be correct that Ex.PW1/B was given by her with her free consent. She has admitted to be correct that her date of birth was mentioned by her grandmother in school at the Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 7 of 36 ::-
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time of her admission because she was having difficulty in her admission in school. She has admitted to be correct that her grandmother had mentioned her age on the lower side to get her admitted in school. She has admitted to be correct that her age today (12.03.2012-the date of her evidence) is 20 years.
14. PW2, the mother of prosecutrix, has deposed that about one year from today (12.03.2012-the date of her evidence) she alongwith her husband had gone to Nepal leaving her children with her mother in law in Delhi and had returned about 5 months ago. Her elder daughter told that the prosecutrix was pregnant by five months from the accused (correctly identified). She took the prosecutrix to the Police Station where her statement was recorded by the police. She was medically examined in the DDU Hospital. The prosecutrix did not disclose anything to her about the conduct of the accused during her work in his factory.
15. She was also declared hostile as she had also resiled from her previous statement. In her cross examination by the Additional Public Prosecutor, she has denied the suggestion that when she returned from Nepal, the prosecutrix told her that the accused who is the owner of the factory had forcibly sexual intercourse with her in a room in the factory and that he threatened to get her and her parents killed if she told about the incident to anyone. She has also denied the contents of her statement under section 161 of the Cr.P.C. wherein she has leveled allegations against the accused.
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 8 of 36 ::-
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16. In her cross examination on behalf of the accused, PW2 has admitted that the prosecutrix is about 19-20 years old. She does not know the dates of birth of her children. She has admitted that her statement was not read over to her by the police.
17. PW3, Principal of the Govt. MC Primary School, has proved the admission and withdrawal register of prosecutrix (Ex.PW3/A) and the admission form (Ex.PW3/B and Ex.PW3/C). AS per school record, the date of birth of the prosecutrix is 14.02.1998. In her cross examination, she has admitted that the mother of the prosecutrix had not handed over any age proof of the prosecutrix at the time of admission.
18. PW4, Dr.Y.N.Maurya, has examined the prosecutrix aged 19 years in the Emergency and referred to the department of Obstretics and Gynae vide MLC (Ex.PW4/A). He had also proved the MLC of accused (Ex.PW4/B), which was prepared by Dr. Awadhesh, who left the services of the hospital.
19. PW5, Dr.Sunil Kakkar, was the Chairman of Age Determination Board and Head of Radiology Department, and the Board had examined the prosecutrix and had determined the age of prosecutrix and gave final opinion regarding the age of patient which was found between 18 to 20 years vide a detailed report (Ex.PW5/A).
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 9 of 36 ::-
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20. PW6, Dr.Sunita Seth, has proved the MLC of prosecutrix (Ex.PW6/A) which was prepared by Dr. Anjali, who left the services of hospital.
21. PW7, ASI Bal Kishan, is the duty officer who had recorded the formal FIR of this case (Ex.PW7/A), prepared the certificate under section 65-B of the Evidence Act (Ex.PW7/B) and made the endorsement on the rukka (Ex.PW7/C).
22. PW8, Ct.Nihal Singh, is the witness of investigation. He deposed that he joined the investigation along with SI Bimla, IO of case. He had apprehended the accused and arrested in this case. His arrest memo (EX.PW8/A) and personal search memo (Ex.PW8/B) was prepared by the IO. Accused had made disclosure statement (Ex.PW8/C). On the pointing out of accused, the pointing out memo (Ex.PW8/D) was prepared. Accused had got medically examined and after medical examination two sealed parcels and sample seal with the seal of DDU hospital seized by the IO vide seizure memo (Ex.PW8/E). Accused had produced before learned Metropolitan Magistrate, Delhi and remanded to judicial custody.
23. PW9, Lady Ct.Babita, had got the prosecutrix medically examined at DDU Hospital. She deposed that mother of prosecutrix was also with them. She obtained the MLC of prosecutrix along with two sealed parcels along with sample seal of DDU hospital Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 10 of 36 ::-
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and handed over the same to the SI Bimla which were seized vide seizure memo (Ex.PW9/A).
24. PW10, Mr. Rajender Kumar, is the learned Metropolitan Magistrate who has recorded the statement under section 164 of the Cr.P.C. of prosecutrix (Ex.PW1/B) with the certificate (Ex.PW10/B) on the application of the Investigation Officer (Ex.PW10/A) and given a copy of the same to the IO on application (Ex.PW10/C).
25. PW11, W SI Bimla, is the Investigation Officer of the case. She had deposed that prosecutrix came to the Police Station along with her mother. She recorded the statement of the complainant (Ex.PW1/A) and made rukka (Ex.PW11/A). On the basis of rukka, FIR was registered. She had got medical examination of prosecutrix through W Ct. Babita. She had seized the exhibits handed over by Ct. Babita vide seizure memo (Ex.PW9/A). She brought the prosecutrix to the Tis Hazari Courts and got recorded her statement under section 164 Cr.P.C. recorded. She went with the constable for search of accused after the medical examination of prosecutrix. She prepared the site plan (Ex.PW11/B). She took the prosecutrix at the place of incident i.e. the factory of the accused. She seized the proof regarding the age of prosecutrix from her school and ration card, which was produced by her mother. There was some discrepancy about the age of the prosecutrix as per the ration card (Mark X) submitted by her mother. Thereafter, she had Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 11 of 36 ::-
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got done the bony age of the prosecutrix from DDU hospital. The bony age was got done after the delivery of the child. The accused was arrested vide arrest memo (Ex.PW8/A) and personal search memo (Ex.PW8/B). Accused had made disclosure statement (Ex.PW8/C). On the pointing out of accused, the pointing out memo (Ex.PW8/D) was prepared. Accused had got medically examined throuh Ct.Nihal and after medical examination two sealed parcels and sample seal with the seal of DDU hospital seized vide seizure memo (Ex.PW8/E). She sent the exhibits to FSL Rohini through a constable. Thereafter, she prepared the challan and same was filed in the Court. Later, the reports were filed in the judicial records. She did not record the statement of the mother of the prosecutrix in regard to the contradiction with regard to her date of birth i.e. school leaving certificate and ration card.
26. PW12, is the Mal Khana Mohrar. He had deposed that WSI Bimla had deposited two sealed pulandas and one sample seal on 07.06.2011 vide entry number 566 in the register number 19 (Ex.PW12/A). IO again deposited two sealed pulandas and one seal sample of DDU on 25.06.2011 vide entry number 646 in the register number 19 (Ex.PW12/B). On 26.08.2011 four sealed pullandas and two sample seals with the seal of DDU hospital were sent to FSL vide entry number RC 102/21/11 (Ex.PW12/C) through Ct. Pradeep Kumar who deposited them at FSL office and handed over the receipt to him.
27. PW13, Ct.Pradeep, had taken the four sealed pulandas Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 12 of 36 ::-
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and two sample seals from MHCM of PS Khayala and deposited the same at FSL Rohini and had deposited them and receipt of the same was handed over to MHCM.
28. The accused and his counsel have preferred not to cross examine PWs 4, 5, 9, 10, 12 and 13. Their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
DISCUSSION AND ANALYSIS
29. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 13 of 36 ::-
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suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
30. Under this sphere, I now proceed to test the submissions of both the sides.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
31. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW1, the prosecutrix, who apparently has taken different stands in her three statements.
32. In the Court, during trial, the prosecutrix, as PW1, in her evidence, has deposed that has deposed that she worked in the factory of the accused (correctly identified) for about one year. She Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 14 of 36 ::-
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developed love and affection with the accused. He promised to marry her and had sexual relationship with her as a result of which she became pregnant. When she was pregnant for about 5-6 months, she came to know that the accused was already married. He offered to marry her but she refused as he was already married. She left the job and started living in her house in Delhi. She told her family about her pregnancy and the conduct of the accused. Some ladies from an NGO came to her house and they suggested to her and her family to lodge a complaint against the accused. She was not willing to lodge any complaint against the accused at that time. The ladies took her to the Police Station Khyala and her statement (Ex.PW1/A) was recorded. She was medically examined at the DDU Hospital. Her statement under section 164 of the Cr.P.C. (Ex.PW1/B) was recorded by the Magistrate at Tis Hazari Court. At that time she was not willing to proceed further with the case as she was eight months pregnant and about to deliver the child. She delivered a male child on 21.08.2011 who is named Veer and is with her. She still does not want to continue with the case.
33. As the prosecutrix was hostile and has resiled from her previous statement, she was cross examined by the Additional Public Prosecutor. She has denied making any allegation against the accused in her statement to the police.
34. In her cross examination on behalf of the accused, she has admitted that they were in love with each other and whatever Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 15 of 36 ::-
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happened was with their consent. She has admitted to be correct that she never wished to lodge the complaint against the accused and the lady from the NGO had forced her to lodge the complaint. She has admitted to be correct that she had not made any written complaint to the police. She has admitted to be correct that she had not read Ex.PW1/A herself and she had been made to sign it. She has admitted to be correct that Ex.PW1/B was given by her with her free consent. She has admitted to be correct that her date of birth was mentioned by her grandmother in school at the time of her admission because she was having difficulty in her admission in school. She has admitted to be correct that her grandmother had mentioned her age on the lower side to get her admitted in school. She has admitted to be correct that her age today (12.03.2012- the date of her evidence) is 20 years.
35. In her statement /complaint dated 06.06.2011 to the police (Ex.PW1/A), the prosecutrix has stated that her age is 14-15 years. She was working in the factory of accused Rajan as her family had financial constraints. On day in September, 2010, during evening, he called her to a room in the factory and told her that he loved her. When she told him that she did not love him, the accused closed the door and forcibly raped her (zabardasti galat kaam kiya) and threatened to kill her and her father and kidnap the children of her sister if she disclosed about the incident to anyone. Thereafter, he repeatedly raped her. As she was scared, she did not tell anyone. In the meanwhile she became pregnant. Her mother, who had gone to Nepal, returned and she told her mother Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 16 of 36 ::-
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about everything on which her mother brought her to the Police Station. She wanted legal action against the accused.
36. The prosecutrix, in her statement under section 164 Cr.P.C., has deposed that she is 19 years old. She knows Mr.Rajan, the accused, for past about one year. He runs a factory in Raghubir Nagar. She fell in love with him 2-3 months after joining his factory. Rajan never used force of any kind against her nor was she ever raped by him against her wishes or consent. They have had sexual intercourse on several occasions with her consent and will. She never refused to have sexual intercourse with him whenever he asked her for the same. She was never raped by Rajan. She was happy with her relations with Rajan. She has never visited Police Station Khyala for registration of the case against the accused. She did not know who had lodged the present case against him. She did not want any action against Rajan. Now she is not having any relation with him and would like to live with her parents.
37. The prosecutrix has taken different stands and given different versions of the alleged incident in her statements to the police as well as under section 164 of the Cr.P.C. and her evidence before the Court.
38. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 17 of 36 ::-
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reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
39. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
40. It cannot be ignored that in her cross examination by the accused, the prosecutrix she has admitted that they were in love with each other and whatever happened was with their consent. She has admitted to be correct that she never wished to lodge the complaint against the accused and the lady from the NGO had forced her to lodge the complaint. She has admitted to be correct that she had not made any written complaint to the police. She has admitted to be correct that she had not read Ex.PW1/A herself and she had been made to sign it. She has admitted to be correct that Ex.PW1/B was given by her with her free consent. She has admitted to be correct that her date of birth was mentioned by her grandmother in school at the time of her admission because she was having difficulty in her admission in school. She has admitted to be correct that her grandmother had mentioned her age on the lower side to get her admitted in school. She has admitted to be correct Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 18 of 36 ::-
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that her age today (12.03.2012-the date of her evidence) is 20 years.
41. It is not in dispute that from September 2010 (from the first incident of alleged rape) till 06.06.2011 (the date of statement of the prosecutrix to the police-Ex.PW1/B), the prosecutrix apparently has not made any complaint to anyone nor raised alarm at any point of time for help.
42. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
AGE OF THE PROSECUTRIX
43. An important issue in dispute is the age of the prosecutrix. The prosecution has claimed her age to be about 14-15 years (as per her own statement-Ex.PW1/B) while the accused has claimed that she was above 18 years and was a major on the date of the alleged offence and they had the physical relationship with the free consent of the prosecutrix.
44. PW1, the prosecutrix, has stated in her statement under section 164 of the Cr.P.C. that she is 19 years old (as on 08.06.2011). In her evidence before the Court, she has deposed that about four years ago (from the date of her evidence-12.03.2012) she had gone Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
State versus Rajan. -:: Page 19 of 36 ::-
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to Nepal and after one year she had returned to Delhi and joined the factory of the accused and worked for about one year. She delivered a male child on 21.08.2011. This would indicate that about 9 months earlier in November, 2010, the physical relationship would have been established. In turn it would mean that she was aged about 18 years old in September, 2010.
45. The mother of the prosecutix, as PW2, has deposed that the prosecutrix is about 19-20 years old. She does not know the dates of birth of her children.
46. PW3, has deposed that as per school record, the date of birth of the prosecutrix is 14.02.1998. In her cross examination, she has admitted that the mother of the prosecutrix had not handed over any age proof of the prosecutrix at the time of admission.
47. PW4, Dr.Y.N.Maurya, has examined the prosecutrix aged 19 years.
48. PW5, the Chairman of Age Determination Board and Head of Radiology Department has deposed that the Board had examined the prosecutrix and had determined the age of prosecutrix and gave final opinion regarding the age of patient which was found between 18 to 20 years vide a detailed report.
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FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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49. The copy of the ration card (Mark X) filed along with the charge sheet shows the year of birth of the prosecutrix as 1992 which indicates that in September, 2010 she was 18 years old.
50. It is clear from the evidence of the witnesses of the prosecution that they do not have the birth certificate issued by the Municipal Authorities or the MCD. The mother of the prosecutrix has not even deposed her date of birth.
51. Now, the question arises, "As to whether the age as determined by scientific ossification test should be given preference to the oral age aspect of the prosecutrix?" While dealing with similar situation it was observed by Hon'ble Delhi High Court in a case reported as Brij Mohan v. State, 38 (1989) DLT 15, as under :-
"It is settled law that the absence of cogent evidence such as of birth entry, the determination of age scientifically i.e. by ossification test should be preferred to the other evidence, including an entry in the school register unless that to be flawless."
52. Further more, in another case reported as Kanchan Dass v. State, 40 (1990) D.L.T. 401, it was held by Hon'ble Delhi High Court while dealing with similar aspect as under :-
"Assessment of age given on the basis of ossification test is to be preferred when there is doubtful oral evidence and suspicious evidence in the shape of school leaving certificate."
53. So, in view of the aforesaid judgments as rendered by Sessions Case Number : 50 of 2012.
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Delhi High Court and applying the same to the facts and circumstances of the present case, it can be safely concluded that the ossification test of the prosecutrix is to be preferred over the oral age of the prosecutrix and her school records as such information would be furnished to the school by her parents. Therefore, the school register and the school leaving certificate (Ex.PW3/A, Ex.PW3/B and Ex.PW3/D respectively) as well as the ration card (Mark X) or the oral evidence of PWs 1 and 2 cannot be taken into consideration.
54. It is a common knowledge that in India parents generally tell the age of the child in the school much less than the actual age of the child for the reason that he or she may get benefit of the same in future. Present case is also an exception to the same. It is clear that the birth of the prosecutrix was not registered. Whatever her grandmother told verbally was written in the school record.
55. In Jaya Mal v. Home Secretary, Govt. of Jammu & Kashmir & Ors, 1982 SCC 502, the Supreme Court has held that one can take judicial notice that the margin of error in age ascertained by such examination is two years on either side.
56. Similarly, in Jyoti Prakash Rai @ Jyoti Prakash v. State of Bihar, AIR 2008 SC 1696, the Supreme Court has observed:
"This court in number of judgments has held that age determination by doctors should be given flexibility of two years on either side."
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FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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57. However, in the present case, there is the ossification test of the prosecutrix in which it is opined that her age is 18-20 years as on 23.08.2011. She was about one year less in September, 2010. The benefit of the age of the prosecutrix with plus two years is to be given to the accused, as per law.
58. Therefore, applying the same ratio, it cannot be said that the age of the prosecutrix was 14-15 years or that she was less than 18 years or that she was a minor at the time of the alleged offence. The prosecution as failed to prove that she was a minor especially in view of the ossification test of the prosecutrix and when she has herself stated her age to be 19 years before the learned Magistrate recording her statement under section 164 of the Cr.P.C. and as there is no birth certificate of the prosecutrix.
SECTIONS 376 AND 506 OF THE IPC
59. In the present case, the charge sheet was filed under sections 376 and 506 of the IPC and the charge was framed under sections 376 and 506 of the IPC.
60. The hon'ble Delhi High Court in Vivek Kumar @ Sanju and another v. The State and another Crl. M.C. No. 3073-74/2006 decided on 23.2.2007 took similar view. Following observations in that judgment are of some interest:
"There is no law which prohibits a girl under 18 years from falling Sessions Case Number : 50 of 2012.
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FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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in love with someone else. Neither falling in love with some body is an offence under IPR or any other penal law. Desiring to marry her love is also not an offence. A young girl who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner no.2 Her father slapped her and told that her action would malign the religion and bring danger to the religion. He, even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of boy with whom she ran away and married.."
61. Similarly in Bhagwan Singh Ors. v. State & Anr. 2006 (3) JCC 2050, the High Court of Delhi had quashed the proceedings. In this case, the following portion from the judgment of S. Vardarajan v. State of Madras, 1965 SCR (1) 243 was quoted. I am Sessions Case Number : 50 of 2012.
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FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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privileged to quote the same as below:-
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanies him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.."
62. In the present case also, there is no material on record that the prosecutrix was forced by the accused or raped or threatened with dire consequences.
63. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are Sessions Case Number : 50 of 2012.
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FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
64. This brings me to the final question as to whether the prosecutrix was raped or threatened.
65. There are several contradictions and glaring discrepancies in the different statements of the prosecutrix which make her version unbelievable. They are tabulated below.
Statement of the Statement of the Evidence of the prosecutrix to the prosecutrix prosecutrix before the police-Ex.PW1/A under section 164 Court of the Cr.P.C.- Ex.PW1/B Her age is 14-15 in Her age is 19 She delivered a male child September, 2010. years on on 21.08.2011. This would
08.06.2011 which indicate that about 9 months means it is 18 earlier in November, 2010, years in the physical relationship September, 2010. would have been established. In turn it would mean that she was aged about 18 years old in September, 2010.
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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Prosecutrix and Prosecutrix was in Prosecutrix and accused
accused were in love love with the were in love with each
with each other. accused. other.
She was raped by Accused did not Accused promised to marry the accused in rape her and her and had physical September, 2010. whatever relationship with her.
and thereafter happened was
repeatedly several with her consent.
times She is happy with
her relations with
the accused.
She was threatened She was never She has not deposed about by the accused that threatened. the accused extending any he shall kill her and threat.
her father and
kidnap the children
of her sister if she
discloses about the
incident to any one.
Mother, on return There is no Ladies from the NGO took
from Nepal, brought mention of her to the Police Station and
her to the Police mother. forced her to lodge the FIR
Station. against the accused.
Wants legal action Does not want any She does not want to
against the accused. legal action continue the case.
against the
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accused.
Went to the Police Never went to the Went to the Police Station.
Station Police Station.
Made her statement Never made any Made her statement to the to the police. statement to the police but denied the police. contents.
No mention of the No mention of the Accused offered to marry accused offering to accused offering her.
marry her. to marry her.
66. Also there are contradictions in the evidence of the prosecutrix and her mother which cannot be ignored. They are as follows:
PW1-Prosecutrix PW2-Mother of Prosecutrix From the evidence of the Prosecutrix is about 19-20 years old prosecutrix, it comes that she was (on 12.03.2012). This indicates that aged about 18 years old in she was about 17-18 years old in September, 2010. September, 2010.
Prosecutrix told her family Elder daughter told her that the members about her pregnancy prosecutrix was pregnant by five and conduct of accused. months by the accused. Some ladies from NGO came to She took the prosecutrix to the her house and took her to the Police Station. No mention of the Police Station and forced her to ladies from the NGO. lodge the FIR.
Rape and threat. No mention of rape or threat.
Prosecutrix and accused were in No mention that the prosecutrix and love. accused were in love.
Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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67. The above tabulated contradictions in the different statements of the prosecutrix inter se as well as in the evidence of the prosecutrix and her mother to too major to be ignored and throw a shadow of doubt on the prosecution story making it unreliable.
68. It is clear from the record that the prosecutrix not only was a major on the date of alleged offence (as there is no proof of her being a minor) but she had also reached the age of discretion and had entered voluntarily into a physical relationship with the accused.
69. However, as regards the male child being fathered by the accused is concerned, the Investigation Officer, during the investigation and even thereafter, failed to get the DNA test conducted which could have established the paternity of the child.
70. Under these circumstances, no inference can be drawn that the accused is guilty of raping the prosecutrix or threatening her.
There is nothing incriminating on the record against the accused.
PROMISE TO MARRY AND PHYSICAL RELATIONSHIP
71. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him.
72. On the other hand, it had argued by the counsel for the accused that the prosecutrix had physical relationship with the accused with her free consent and will.
73. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
74. Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is 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 mind."
75. In Words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American Courts are found:
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".....adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
76. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her."
77. Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
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78. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be said that it is a misconception of fact or that her consent has been obtained by fraud. It is clear that the prosecutrix accepted whatever physical relationship was there with her free consent.
79. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry cannot be said to be under a misconception of fact as she was a major at the time of the alleged incident and intelligent enough to understand the consequences of establishing physical relationship with the accused. Mere promise to marry on an uncertain date does not indicate that the accused has obtained her consent for the physical relationship by fraud or misrepresentation. Consent given by the prosecutrix to have physical relationship with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under misconception of fact.
80. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped as her consent is not free.
CONSENT OF THE PROSECUTRIX
81. It has been argued on behalf of the accused that the Sessions Case Number : 50 of 2012.
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prosecutrix was a consenting party. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent. Where the prosecutrix had sufficient opportunity not only to run away from the accused but she could have taken the help of the neighbours and medical evidence also indicated that there were no injuries on the person of the prosecutrix, it can be said that she was a consenting party.
82. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix, the probability is that rape is not committed.
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83. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
84. Since the prosecutrix as PW1 have not deposed anything incriminating against the accused person in her evidence as well as her statement under section 164 of the Cr.P.C. which is earliest possible statement in the Court, and also there are overwhelming contradictions in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused person. The prosecution story does not inspire confidence and is not worthy of credence.
85. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the case of rape and threat against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. It appears from the evidence that it is not a case of rape and threat but of an involvement (physical).
Sessions Case Number : 50 of 2012.
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FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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CONCLUSION
86. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused.
87. Accordingly, Mr.Rajan, the accused is hereby acquitted of the charges. His bail bond and surety bond are cancelled and his surety is discharged.
88. It would not be out of place to mention here that today there is a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man accused of rape can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
89. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
90. Case property be confiscated and be destroyed after Sessions Case Number : 50 of 2012.
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expiry of period of limitation of appeal.
91. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
92. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 02nd day of January, 2013. ASJ-03, West, Delhi. *********************************************************** Sessions Case Number : 50 of 2012.
Unique Case ID Number : 02401R0585542011.
FIR Number 156 of 2010, Police Station Khayala. Under sections 376 and 506 of the Indian Penal Code.
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