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State vs Raju @ Rahul & Ors. -:: Page 1 Of 55 ::- on 11 February, 2016

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                IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
                        ADDITIONAL SESSIONS JUDGE
                      (SPECIAL FAST TRACK COURT)-01,
                      WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number                                            : 95 of 2013.
Unique Case ID Number                                           : 02401R0626252012.

State
                                                    Versus

1. Mr.Raju @ Rahul (Facing trial)
   Son of late Mr.Soma Lal,
   Resident of RZA-242, Satsang Road,
   Nihal Vihar, Delhi.
   Permanent Address: Poashwati Kati,
   Near Bajaria Hospital, Saharanpur, U.P.

2. Ms. Lata Singh @ Promila Singh (Facing trial)
   Wife of Mr. Raju @ Rahul
   Resident of RZA-242, Satsang Road,
   Nihal Vihar, Delhi.
   Permanent Address:- Village Chharas, PO Talwara,
   Tehsil Ghumarmi, PS Bharari, District Bilas Pur, MP.

3. Mr. Sumit (Proclaimed Offender)
  Son of Mr.Arun Malik
  Resident of H.No.WZ-47, Hanuman Mandir Wali Gali,
  Khayala Village, Delhi

First Information Report Number : 396/12.
Police Station Uttam Nagar
Under sections 313, ,  and  of the Indian Penal Code.

Date of filing of the charge sheet                                        : 22.12.2012.
before the Court of the Metropolitan Magistrate
Date of receipt of file after committal                                   : 20.04.2013.
Arguments concluded on                                                    : 11.02.2016.
Date of judgment                                                          : 11.02.2016.

Sessions Case Number : 95 of 2013.
Unique Case ID Number : 02401R0626252012.
FIR No.396/2012, Police Station Uttam Nagar,
Under sections 313, ,  and  of the Indian Penal Code.
State versus Raju @ Rahul & Ors.                                              -:: Page 1 of 55 ::-
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Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the
           State.
           Accused Raju @ Rahul has been produced from judicial
           custody.
           Accused Lata Singh @ Promila Singh on bail.
           Accused Sumit is a proclaimed offender vide order dated
           18.03.2013.
           Mr. Yogesh Chhabra, counsel for accused Raju @ Rahul and
           Lata Singh @ Promila Singh.
           Ms. Shubra Mehndiratta, counsel for the Delhi Commission
           for Women.
******************************************************************
***

JUDGMENT

"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.

1. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 2 of 55 ::-

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becomes inhuman and barbaric when the victim is known to the culprit, as in the present case.

PROSECUTION CASE

2. Mr. Raju @ Rahul and Ms. Lata Singh @ Promila Singh, both the accused persons, have been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under sections 313, 366, 376 and 34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 27.05.2012, the prosecutrix (name mentioned in file and withheld to protect her identity) was kidnapped by co-accused Sumit (Proclaimed Offender), who raped the prosecutrix and later on, he handed over her custody to accused Raju @ Rahul and his wife co-accused Lata Singh @ Promila Singh; during the period 27.05.2012 to 29.09.2012, accused Raju @ Rahul forcibly committed rape upon the prosecutrix against her consent and also confined her at different places, as mentioned by prosecutrix in her statement under section 164 Cr.P.C made before learned Metropolitan Magistrate as well as to the police with intention that she may be compelled to marry any person against her will or forced to illicit intercourse.During the period 27.05.2012 to 29.09.2012, accused Raju @ Rahul along with his wife accused Lata Singh @ Promila Singh forced the prosecutrix to have sex with other persons against her consent and used to take money in lieu of the same and also used to confine her against her consent at different places, as mentioned in the statement under section 164 Cr.P.C as well as before the police. During the aforesaid period accused Lata Singh @ Promila Singh abetted the prosecutrix to have sex with other persons against her consent. Accused Raju @ Rahul also got aborted the pregnancy of 3-4 months of the prosecutrix against her consent.

Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 3 of 55 ::-

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3. Accused Sumit was declared a proclaimed offender vide order dated 18.03.2013 when he failed to appear before the Court.

4. It is also made clear at this stage, that the allegations against accused Sumit (who is a proclaimed offender) are not being discussed not any observation made herein shall not be considered against him as the judgment is qua accused Raju @ Rahul and Lata Singh @ Promila Singh.

CHARGE SHEET AND COMMITTAL

5. After completion of the investigation, the challan was filed before the Court of the learned Metropolitan Magistrate on 22.12.2012 and after its committal, the case was assigned to this Special Fast Track -01, West Tis Hazari Courts Delhi vide order dated 20.04.2013.

CHARGE

6. After hearing arguments, charge for offence under sections 366, 376, 313 and 34 of the IPC and under section 4 and 5 Immoral Traffic (Prevention) Act 1956 was framed against the accused Raju @ Rahul and the charge for offence under sections 109 and 376 of the IPC and under section 4 and 5 Immoral Traffic (Prevention) Act 1956 was framed against the accused Lata Singh @ Promila Singh vide order dated 20.04.2013 to which they pleaded not guilty and claimed trial.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS

7. The prosecution case unveils with the parents of the prosecutrix coming to Police Station Uttam Nagar on 29.05.2012 regarding missing of their Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 4 of 55 ::-

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daughter (prosecutrix-PW3) and W/HC Munni Devi (PW5) recorded DD no. 24 A (Ex.PW1/A). Investigation was handed to HC Om Parkash (PW1). On 17.09.2012, HC Jagdish Parsad (PW10) recorded the statement (Ex.PW10/A) of complainant Ms. Vidhya Devi (PW12) and on the basis of same, prepared rukka (Ex.PW10/B) and had given the said rukka to the Duty Officer SI Jagdish Chander (PW16) and on the basis of the same, he lodged the FIR (Ex.PW16/A), made his endorsement on the rukka (Ex.PW16/B). After lodging of the FIR (PW16/A), the original rukka (Ex.PW16/B) and copy of FIR were handed over to SI Sunil Dagar (PW11) for investigation. As the mother of the prosecutrix (PW12) had made a complaint to the police, accused Raju @ Rahul was apprehended at Saharanpur. Accused Raju @ Rahul had brought the police to the place where he had kept the prosecutrix (PW3) confined and she was recovered.

The police brought her to Delhi to Police Station Uttam Nagar. When co- accused Sumit (who is P.O) had taken the prosecutrix (PW3), she was carrying her X class certificates for her job Institute IIMPS, Vikas Puri, Shanker Garden, Delhi which had been taken by co-accused (Sumit) and was working in that institute at that time and used to give the roll numbers to the students after taking them from the Computer. On 26.09.2012, SI Sunil Dagar (PW11) along with Ct.Mansukh (PW9) and W/Ct. Seema (PW20) went to District Sahranpur, U.P in search of prosecutrix (PW3) and accused Raju @ Rahul and they reached at P.S Sadar at Sahranpur where 3-4 local police officials had joined the investigation. The police team had the photographs of accused Raju @ Rahul and they contacted one of his relatives and showed him the photograph of accused Raju @ Rahul and also narrated to him the facts of the case. That relative confirmed them that accused Raju @ Rahul was known to him and that relative further Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 5 of 55 ::-

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informed them that accused Raju @ Rahul might be present at Saharanpur Railway Station as he was involved in selling samosas and kachori at railway station. Thereafter, all the police officials along with the relative reached Sahranpur Railway Station and they made efforts to search for accused Raju @ Rahul but he could not be traced out. On the same day, SI Sunil Dagar (PW11) again left for Railway Station Saharanpur in the evening along with the local police official but relative of accused was not at that time. When they were going towards fly over Saharanpur Railway Station, they saw accused Raju @ Rahul on the fly over and he was coming from the opposite side. They could identify accused Raju @ Rahul as his photograph was with them and they apprehended and interrogated him. On interrogation, accused Raju @ Rahul told the police that he had kept the prosecutrix (PW3) in rented accommodation adjoining Railway Colony and he took them to the rented accommodation where the prosecutrix (PW3) was present. Thereafter, the prosecutrix (PW3) and accused Raju @ Rahul were brought to Delhi and produced before SHO, Police Station Uttam Nagar. On 27.09.2012, Inspector Ashok Tyagi (PW17) was posted as SHO PS Uttam Nagar and the investigation of this case was taken by him from SI Sunil Dagar (PW11). On 27.09.2012, the prosecutrix (PW3) was sent to DDU Hospital for her medical examination along with ASI Sushma (PW15) and on that day prosecutrix had refused for her internal medical examination and on the next day she had come with her mother to Police Station when she was sent for her medical examination as she was willing on that day for the same. On 27.09.2012, the prosecutrix (PW3) was examined by Dr. Mir Raja in DDU hospital (who has since left the services of hospital) under the supervision of Dr. Sanjay Rai (PW2) vide MLC (Ex.PW2/A) and the patient was referred to the Gyane Department for Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

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further management and examination. The prosecutrix (PW3) was taken to DDU hospital for her medical examination by W/SI Promila (her evidence has been admitted by the defence counsel on 30.10.2014) where she was medically examined by Dr. Navita Gupta (who has since left the services of the hospital) vide MLC (Ex. PW21/A) dated 28.09.2012 as well as MLC (Ex.PW2/A) dated 29.09.2012 prepared by Dr. Sweety who has also left the services of the hospital. Both the MLCs were proved by Dr. Soma Mitra (PW21). On 28.09.2012, the prosecutrix (PW3) along with her mother (PW12) came in Police Station and made complaint of abdomen pain and was sent for medical examination in DDU hospital through WSI Promila, who had handed over MLC and exhibits to IO/Inspector Ashok Tyagi (PW17) which were seized vide seizure memo (Ex.PW17/A). Dr.Vinod Gupta (PW13) had proved medical record on the letter head of Ashirwad Nursing home as well as pathology report of Ashirwad Pathology Centre (Ex.PW13/A). The statement under section 164 Cr.P.C. of the prosecutrix (Ex.PW3/A) was recorded by the learned Metropolitan Magistrate and prior to same, she was taken to DDU hospital where she was medically examined and her blood and other samples were taken and had been forced by accused Raju @ Rahul to have an abortion at Saharanpur but foetus had not aborted completely (adha bacha reh gaya tha) and as she had pain in her abdomen, her parents had taken her to Mata Chanan Devi Hospital but after they declined to treat her, she was taken to Aashirwad Nursing Home, Shiv Vihar. Ultrasound was conducted and it was revealed that there was pus in her abdomen (mawad). The doctors told that if the prosecutrix (PW3) was not operated within 5 minutes, she may die and with the help of some neighbor, Ms. Romi, the money was deposited in the hospital and she was operated and all the medical documents are with her mother and Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

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remained admitted for about 6-7 days and was admitted on 29 th and discharge on 6th and it was the ninth month of the year 2012. When accused Sumit (PO) had given the prosecutrix to accused Lata Singh @ Promila Singh, accused Sumit had also given her certificates of the prosecutrix to her and now the certificates were with accused Raju @ Rahul. IO/Inspector Ashok Tyagi (PW17) also handed over accused Raju @ Rahul and after interrogation accused Raju @ Rahul was arrested in this case in the Police Station Uttam Nagar vide arrest memo (Ex.PW8/A) and his personal search was taken vide personal search memo (Ex.PW8/B). He confessed his crime vide disclosure statement (Ex.PW17/B). Accused Raju @ Rahul was sent for medical examination in DDU hospital with Ct. Pradeep (PW8) where he was medically examined by Dr. Neeraj Garg (PW18) vide MLC (Ex.PW18/A) and blood and semen samples were handed over to IO/Inspector Ashok Tyagi (PW17) which were taken in possession vide seizure memo (Ex. PW8/C). Accused Raju @ Rahul was taken to Nihal Vihar at the residence of accused Lata Singh @ Promila Singh but the house was found locked. On next day i.e. 28.09.2012, on the instance of accused Raju @ Rahul, accused Lata Singh @ Promila Singh was interrogated and arrested in this case also in the presence of WASI Sushma (PW15) vide arrest memo (Ex.PW15/A) and the personal search memo (Ex.PW15/B). She was sent to DDU hospital for her medical examination along with lady Ct.Sheetal (PW19) and on return, Inspector Ashok Tyagi (PW17) was handed over the MLC pertaining to accused Lata Singh @ Promila Singh. Subsequently, on the same day, IO/Inspector Ashok Tyagi (PW17) recorded the statements under section 161 of the Cr.PC of WASI Sushma (PW15) and Lady Ct. Sheetal (PW19). Thereafter, accused Raju @ Rahul and Lata Singh @ Promila Singh were produced before the Court Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 8 of 55 ::-

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of learned Area Metropolitan Magistrate. Two days police custody of accused Raju@ Rahul was taken and accused Lata Singh @ Promila Singh was remanded to judicial custody. A police team comprising of SI Ram Pal, SI Sunil Dagar and some more police official was constituted and accused Raju @ Rahul was taken to Saharanpur. Facts were verified there by the police team but no recovery was effected and search of third accused Sumeet (who is P.O) was also made but he was not traced. During investigation, it came to the notice of IO/Inspector Ashok Tyagi (PW17) that the prosecutrix (PW3) was admitted in Ashirwad Nursing Home on 30.09.2012 as her condition had deteriorated and she was complaining about the pain in whole abdomen. On 03.10.2012, the exhibits of this case were sent to FSL Rohini through Ct. Anil (PW4). IO/Inspector Ashok Tyagi (PW17) made efforts to search of accused Sumeet who was absconding and obtained the NBW to execute the same against him and filed the charge sheet. Accused Sumeet had been subsequently declared a proclaimed offender (P.O.) by the Court.

8. On 27.09.2012, IO/Insp. Ashok Tyagi (PW17) had deposited with HC Shyam Nandan Kishore (PW6) MHCM, the articles recovered from the personal search accused Raju @ Rahul and he had made the entry in register no. 19 at serial no. 4804 (Ex.PW6/A). On 28.09.2012, IO/Inspector Ashok Tyagi (PW17) had deposited with HC Shyam Nandan Kishore (PW6) three sealed pullandas along with two sample seals and he had made entry in register no. 19 at serial no. 4805 (Ex.PW6/B). On 03.10.2012, Ct. Anil received the entire case property along with sample seals from Malkhana and deposited the same in the office of FSL vide RC No.200/21/12 (Ex.PW6/C) and deposited in the office of FSL vide Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 9 of 55 ::-

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acknowledgement (Ex. PW6/D). During investigation, HC Jagdish Prasad (PW10) recorded the statement under section 161 Cr.PC of the mother of the prosecutrix - Ms. Vidhya Devi (PW12). The call detail record of mobile phone number (number mentioned in file and withheld to protect the identity of the prosecutrix as her mother was using the same) has been produced by Nodal Officer Mr. Pawan Singh (PW21) and during investigation it was revealed that Ms. Vidhya Devi mother of the prosecutrix (PW3) was using the said mobile phone number. Mr. Pawan Singh (PW21) produced and proved the CDR of mobile phone number for the period between July, 2012 to September, 2012. He has proved the letter (Ex.PW21/A), customer application form (Ex.PW21/B), election card (Ex.PW21/C), customer application form (Ex.PW21/D) and election card (Ex.PW21/E).The call detail record of mobile phone number 9717356336 has been produced by Nodal Officer Mr. Vishal Gaurav (PW14). He has proved the CDR of mobile phone no. 9717356336 for the period between 01.07.2012 to 30.09.2012 as (Ex.PW14/A1 and Ex. PW14/A2), certificate under section 65 B Evidence Act (Ex.PW14/B), customer application form (Ex.PW14/C) and electoral card (Ex.PW14/D). Ms. Kafia Begum was the owner and landlady of house no. RZ-A-242 Satsang Road, Nihal Vihar Delhi and the second floor of the same had been let out by her to accused Lata Singh @ Promila vide rent agreement (Ex.PW7/A) as deposed by her husband Mr. A.G Arshad (PW7). During trial, the FSL reports (Ex.PW17/C and Ex.PW17/D) were collected and filed before the Court.

9. The allegations against the accused persons are that on 27.05.2012, the prosecutrix (name mentioned in file and withheld to protect her identity) was kidnapped by co-accused Sumit (Proclaimed Offender), who raped the Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 10 of 55 ::-

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prosecutrix and later on, he handed over her custody to accused Raju @ Rahul and his wife co-accused Lata Singh @ Promila Singh; during the period 27.05.2012 to 29.09.2012, accused Raju @ Rahul forcibly committed rape upon the prosecutrix against her consent and also confined her at different places, as mentioned by prosecutrix in her statement under section 164 Cr.P.C made before learned Metropolitan Magistrate as well as to the police with intention that she may be compelled to marry any person against her will or forced to illicit intercourse. During the period 27.05.2012 to 29.09.2012, accused Raju @ Rahul along with his wife accused Lata Singh @ Promila Singh forced the prosecutrix to have sex with other persons against her consent and used to take money in lieu of the same and also used to confine her against her consent at different places, as mentioned in the statement under section 164 Cr.P.C as well as before the police. During the aforesaid period accused Lata Singh @ Promila Singh abetted the prosecutrix to have sex with other persons against her consent.

Accused Raju @ Rahul also got aborted the pregnancy of 3-4 months of the prosecutrix against her consent.

PROSECUTION EVIDENCE

10. In order to prove its case, the prosecution has examined as many as 21 witnesses i.e. HC Om Parkash, who recorded DD entry as PW1; Dr. Sanjay Rai, who had medically examined the prosecutrix as PW2; the prosecutrix as PW3; Ct. Anil Kumar, who had deposited the case property to FSL, Rohini as PW4; WHC Munni Devi, who had recorded DD No.24 A as PW5; HC Shyam Nandan Kishore, the MHCM as PW6; Mr. A.G.Arshad, the property dealer and husband of the landlady of accused Lata Singh @ Promila Singh as PW7; Ct. Pradeep Kumar, witness of investigation as Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

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PW8; Ct. Mansukh Singh, witness of investigation as PW9; HC Jagdish Parsad, who handed over the rukka to the Duty Officer as PW10; SI Sunil Dagar, the first Investigation Officer as PW11; Ms.Vidhya Devi, mother of prosecutrix, as PW12; Dr. Vinod Gupta, Medical Director, as PW13; Mr. Vishal Gaurav, Nodal Officer, Bharti Air Tel as PW14; ASI Sushma, the Investigation Officer, as PW15; SI Jagdish Chander, Duty Officer, as PW16; SHO Insp.Ashok Tyagi, Investigation Officer as PW17; Dr. Neeraj Garg, who had medically examined accused Raju @ Rahul, as PW18; Ct. Sheetal, who took prosecutrix to DDU for her medical examination as PW19; Ct. Seema, witness of investigation as PW20; Dr. Soma Mitra , who proved the signature of Dr. Navita Gupta and Dr. Sweety, who had medically examined the prosecutrix as PW21; and Mr. Pawan Singh, Nodal Officer Idea Cellullar.

11. On 30.10.2014 and 06.05.2014, Mr.Yogesh Chhabra, counsel for the accused Mr. Raju @ Rahul and Ms. Lata Singh @ Promila Singh, on their behalf, has admitted the evidence of SI Promila, documents prepared by her and/or signed by her. The admission and denial of documents was conducted under section 294 of the Cr.P.C. Therefore, as the evidence of the above mentioned witness and the document prepared by her and/or signed by her was admitted on behalf of the accused, she was ordered not to be examined and her evidence was to be read against the accused at the time of final disposal of the case. Exhibit was put on the document prepared by the above mentioned prosecution witness.

12. On 03.01.2015, Mr.Yogesh Chhabra, counsel for the accused Mr. Raju @ Rahul and Ms. Lata Singh @ Promila Singh, on their behalf, has admitted Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 12 of 55 ::-

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the evidence of Ms.Shivali Sharma, learned Metropolitan Magistrate and Ms.Sunita Gupta, FSL expert, documents prepared by them and/or signed by them. The admission and denial of documents was conducted under section 294 of the Cr.P.C. Therefore, as the evidence of the above mentioned witnesses and the documents prepared by them and/or signed by them was admitted on behalf of the accused, they were ordered not to be examined and their evidence was to be read against the accused at the time of final disposal of the case. Exhibits was put on the document prepared by the above mentioned prosecution witness.

STATEMENTS OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.

13. The statement under section 313 of the Cr.P.C. of accused Raju @ Rahul was recorded on 20.02.2015 and the statement under section 313 Cr.P.C of accused Lata Singh @ Promila Singh was recorded 19.05.2015. Both the accused have controverted and rebutted the entire evidence against them submitting that they are innocent and they have not committed any offence.

14. Accused Raju @ Rahul has preferred to lead defence evidence and he has examined Ct.Subhash who produced the articles seized in the personal search (jama talashi) of accused Raju @ Rahul i.e. one mobile phone and two SIM cars which were contained in a polythene bag in unsealed condition. Accused Lata Singh @ Promila Singh has preferred not to lead any defence evidence.

ARGUMENTS

15. I have heard arguments at length. I have also given my conscious thought Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

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and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of both the accused persons namely Raju @ Rahul and Lata Singh @ Promila Singh.

16. The Additional Public Prosecutor for the State has requested for convicting the accused Raju @ Rahul for having committed the offence under sections 366, 376, 313 and 34 of the IPC and under sections 4 and 5 of Immoral Traffic Act and for convicting accused Lata Singh @ Promila Singh for having committed the offence under sections 109 and 376 of the IPC and under sections 4 and 5 of Immoral Traffic Act submitting that the prosecution has been able to bring home the charge against both the accused by examining its witnesses whose testimonies are corroborative and reliable.

17. The counsel for both the accused Raju @ Rahul and Lata Singh @ Promila Singh, on the other hand, has requested for their acquittal submitting that there is nothing incriminating against both the accused persons on the record. There is a delay in lodging of the FIR which otherwise is also without the details. There are several contradictions in the different statements of the prosecutrix. The mother of the prosecutrix was in touch with accused Raju @ Rahul as the prosecutrix was with him with her free consent. Accused Raju @ Rahul was not arrested at Saharanpur but brought to Delhi and arrested here. There is no medical or forensic evidence against the accused. There is no evidence to show that both the accused persons forced the prosecutrix to indulge in prostitution. The prosecutrix could move freely outside the house of the accused as she used to buy articles Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

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from the market.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

18. 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 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 Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

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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.

19. Under this sphere, I now proceed to test the submissions of both the sides. IMPORTANT ISSUES

20. The important issues and the points in dispute are being discussed hereinafter.

IDENTITIES OF ACCUSED RAJU @ RAHUL AND LATA SINGH @ PROMILA SINGH

21. There is no dispute regarding the identity of both the accused persons.

Accused Lata Singh @ Promila Singh has been identified in the Court by the prosecutrix (PW3), Mr.A.G.Arshad (PW7), Ms.Vidhya Devi (PW12), ASI Sushma (PW15), Investigation Officer Inspector Ashok Tyagi (PW17). Accused Raju @ Rahul has been identified in the Court by the prosecutrix (PW3), Mr.A.G.Arshad (PW7), Ct.Pradeep (PW8), Ct.Mansukh (PW9), SI Sunil Dagar (PW11), Ms.Vidhya Devi (PW12) and Investigation Officer Inspector Ashok Tyagi (PW17). Accused Raju @ Rahul as Rahul is also named in the complaint (Ex.PW10/A) and the FIR (Ex.PW16/A). Both the accused persons have not disputed their respective identities.

22. Here, it would be relevant to mention that both the accused had denied that accused Lata Singh @ Promila Singh is the wife of accused Raju @ Rahul. A similar suggestion has also been given to the prosecutrix which has been denied by her. However, PW7 has deposed that Mr.Onkar Singh is the Sessions Case Number : 95 of 2013.

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husband of accused Lata Singh @ Promila Singh. He had seen accused Raju @ Rahul in her premises but he did not reside there and used to visit accused Lata Singh @ Promila Singh. However, in the statement under section 313 of the Cr.P.C., accused Raju @ Rahul has not denied that he is the husband of accused Lata Singh @ Promila Singh. Also,in the statement under section 313 of the Cr.P.C., in her particulars, accused Lata Singh @ Promila Singh gave the name of accused Raju @ Rahul as her husband.

23. Therefore, the identities of both the accused stands established. AGE OF THE PROSECUTRIX

24. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In the complaint (Ex.PW10/A), FIR (Ex.PW16/A) and DD No.24 A (Ex.PW1/A), the age of the prosecutrix is mentioned as 18 years. In the MLCs of the prosecutrix (Ex.PW21/A and Ex.PW2/A) and her statement under section 164 of the Cr.P.C. (Ex.PW3/A), the age of the prosecutrix is mentioned as 19 years. As per the prosecution, she was a major at the time of the alleged incident.

25. Therefore, it is clear that the prosecutrix was a major at the time of incident.

VIRILITY OF ACCUSED RAJU @ RAHUL

26. Dr.Manjeet Kumar and Dr.Neeraj Garg (PW18) had medically examined accused Raju @ Rahul vide MLC (Ex.PW18/A) wherein it is mentioned that "There is nothing to suggest that the pt cannot perform sexual act".

27. Even on physical examination, the doctor has found that the private parts of Sessions Case Number : 95 of 2013.

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accused Raju @ Rahul to be well developed. His blood and semen samples were taken by the doctor. There is nothing on the record to show that accused Raju @ Rahul is impotent or medically incapable of committing the offence of rape. Accused Raju @ Rahul has not disputed his potency.

28. Therefore, it is clear that accused Raju @ Rahul is virile and is capable of performing sexual act and is capable of committing the act of rape.

MLCS OF THE PROSECUTRIX AND FORENSIC EVIDENCE

29. It has been argued on behalf of the accused that as there is no medical evidence against both the accused Raju @ Rahul and Lata Singh @ Promila Singh, it indicates that they have been falsely implicated in this case as the prosecutrix does not have any injury.

30. The Additional Public Prosecutor has argued that the medical and forensic evidence is only for corroboration.

31. It can be seen from the MLC of the prosecutrix (Ex.PW2/A) which is dated 27.09.2012 that she does not have any external or internal injuries. It can also be seen from the MLC of the prosecutrix (Ex.PW21/A) which is dated 28.09.2012 that she does not have any external or internal injuries. In the MLC (Ex.PW2/A), the prosecutrix had refused her internal gynecological examination and did not give her samples saying that she was living with Rahu @ Rahul with her consent. In the MLC (Ex.PW21/A), the prosecutrix had refused her admission in the hospital and her blood sample was taken.

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32. As per the FSL report (Ex.PW17/C), blood was detected on exhibits "1"

and "3" i.e. one gauze cloth piece having dark brown stains described as "blood sample of accused" and one dark brown foul smelling liquid described as "blood sample of prosecutrix" respectively. As per the FSL report (Ex.PW17/D), (serological report), the semen sample and blood sample were putrefied and hence no opinion could be given. Gauze cloth piece had human blood of "A" group.

33. 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 (as is clear from her MLC-Ex.PW9/A), the probability is that rape is not committed.

34. These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor and there would be some connecting forensic evidence.

35. Although there is nothing incriminating against the accused in the medical Sessions Case Number : 95 of 2013.

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evidence produced by the prosecution, but per se, the ocular and oral evidence as such cannot be ignored, and lack of medical evidence does not indicate that the accused is innocent.

36. There is nothing incriminating against the accused persons in the medical and forensic evidence produced by the prosecution.

DELAY IN FIR

37. The alleged incidents occurred between 27.05.2012 and 29.09.2012. FIR (Ex.PW16/A) has been registered on 17.09.2012 at 21:40 hours (09:40 pm). DD No.24 A (Ex.PW1/A) was prepared on 29.05.2012 at 11:00 am when parents of the prosecutrix informed the police that she is missing.

38. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.

39. The counsel for both the accused has argued that there is an unexplained delay in lodging the FIR which was lodged after due deliberation and consultation.

40. The contention of the prosecution that there is no delay in lodging the FIR as the prosecutrix lodged the complaint as early as possible. The Additional Public Prosecutor has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible.

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41. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.

42. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.

43. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.

44. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:

"The unusual circumstances satisfactorily explained the delay in Sessions Case Number : 95 of 2013. Unique Case ID Number : 02401R0626252012. FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 21 of 55 ::-

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lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.

45. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:

"The above said statement clearly shows that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30- 36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."

46. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:

"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, Sessions Case Number : 95 of 2013. Unique Case ID Number : 02401R0626252012. FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 22 of 55 ::-

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such type of delay would certainly be regarded as fatal to the prosecution case"

47. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh , 1992 Cr.L.J. 715, has held as under:

"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them. It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"

48. It can be seen from the record that the police was informed vide DD No.24 A (Ex.PW1/A) prepared on 29.05.2012 at 11:00 am that the prosecutrix was missing since 27.05.2012 at 11:00 am and FIR (Ex.PW16/A) was registered on 17.09.2012 at 21:40 hours (09:40 pm) on the complaint (Ex.PW10/A) of the mother of the prosecutrix (PW12) that she had suspicion that he daughter had been taken away by accused Raju @ Rahul.

49. It is apparently clear that the police was informed immediately after the alleged incident of the prosecutrix going missing and there was no delay in reporting the matter to the police.

50. These facts indicate that FIR was lodged without any delay.

STATEMENTS OF THE PROSECUTRIX Sessions Case Number : 95 of 2013.

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51. It is very essential and important to discuss and analyse the different statements of the prosecutrix.

52. PW3, the prosecutrix, has deposed that she had become friends with one boy namely Mr. Sumit about one year ago (accused Sumit is P.O). One day in the month of May, 2012, Mr. Sumit gave her to eat and thereafter enticed her and took her to some place but she did not know its name (kuch khila ke behla phusla ke, le gaya). She had lost consciousness and when she regained consciousness, she found herself in a room. Mr. Sumit raped her in that room. He also made other men rape her. He had kept her in that room for 10 days. Then he left her with one Lata at Nihal Vihar. She did not know the exact address but it is above City Properties, Second Floor, Near Sai Baba Mandir (temple). Accused Lata indulges in prostitution (dhanda karti aur karwati hai). She used to take her to different places in a taxi for her prostitution. Accused Raju @ Rahul is husband of accused Lata, he used to also rape her frequently. Whenever accused Raju @ Rahul and Lata used to go out of the house, they used to keep her locked inside. She was there for about 3-4 months. Although she did not remember the exact date but it was in September or October, 2012 that accused Rahul took her to Saharanpur in a car. At that time, she was two months pregnant. She was taken to Anju Sehgal Hospital, Saharanpur where an abortion was forcibly got done. She was not permitted to talk to her family. As her parents had made a complaint to the police, accused Rahul was apprehended at Saharanpur Pul. He had brought the police to the place where he had kept her confined and she was recovered. The police brought her to Delhi to Police Station Uttam Nagar. When Sumit had taken her, she was carrying her X class certificates for her job at Institute IIMPS, Vikas Puri, Shanker Sessions Case Number : 95 of 2013.

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Garden, Delhi, which had been taken by Sumit. She was working in that institute at that time and used to give the roll numbers to the students after taking them from the Computer. When Sumit had given her to accused Lata, he had also given her certificates to her. Now, her certificates are with accused Rahul. From Police Station Uttam Nagar, she was brought to Tis Hazari Courts where her statement under section 164 of the Cr.P.C. (Ex.PW3/A) was recorded by the learned Metropolitan Magistrate. Thereafter, she was permitted to go home. Prior to her statement before the learned Metropolitan Magistrate, she had been taken to DDU hospital where she was medically examined and her blood and other samples were taken. She had been forced by accused Rahul to have an abortion at Sahranpur but foetus had not aborted completely (adha bacha reh gaya tha). As she had pain in her abdomen, her parents had taken her to Mata Chanan Devi Hospital but after they declined to treat her, she was taken to Aashrwid Nursing Home, Shiv Vihar. Ultrasound was conducted and it was revealed that there was pus in her abdomen (mawad). The doctors told that if she was not operated within 5 minutes, she may die. With the help of some neighbour Ms. Romi, the money was deposited in the hospital and she was operated. All the medical documents are with her mother and she has also brought them to the Court today (medical record is mark A (collectively) comprising of 42 pages). She remained admitted for about 6- 7 days. She was admitted on 29 th and discharged on 6 th. It was the ninth month of the year 2012. Her parents have mortgaged their plot and taken money for her operation. She has prayed that accused persons may be punished for the offence they have committed with her.

53. In her statement under section 164 of the Cr.P.C. (Ex.PW3/A), the Sessions Case Number : 95 of 2013.

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prosecutrix has stated similarly.

54. It can be seen from the MLC of the prosecutrix (Ex.PW2/A) which is dated 27.09.2012 that she has told the doctor that she was living with Rahu @ Rahul with her consent. She did have any complaints. She did not have any complaint of sexual assault. However, it can also be seen from the MLC of the prosecutrix (Ex.PW21/A) which is dated 28.09.2012 that the prosecutrix had refused her admission in the hospital and her blood sample was taken. She had given her blood sample. She had told the doctor that she was kidnapped four (04) months back by three (03) unknown persons and there was history of sexual intercourse several number of times and also history of MTP (surgical abortion) at 02 month.

55. It can be seen from the record that there are several unexplained contradictory and discrepancies in the different statements of the prosecutrix. Although the offence in the complaint (Ex.PW10/A), statement under section 164 of the Cr.P.C. (Ex.PW3/A) and evidence of the prosecutrix before the Court is rape but in DD No.24A (Ex.PW1/A), it is a missing report. Both the MLCs of the prosecutrix (Ex.PW21/A and Ex.PW2/A) do not find mention of history of sexual assault or rape. If it was rape, then there was no reason why the prosecutrix did not inform the police and the doctors examining her at the earliest regarding the rape. She is an educated girl who was working prior to the incident and is presumed to know the law and legal procedure. Neither the prosecutrix nor the prosecution have been able to explain this contradiction which is too major to be ignored and also strikes at the very root of the prosecution story.

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56. It also cannot be ignored that some of the contradictions in the statement of the prosecutrix under section 164 of the Cr.P.C. (Ex.PW3/A) and the evidence of the prosecutrix are regarding how her certificates reached accused Raju @ Rahul, manner in which accused Raju @ Rahul took her to Saharanpur, etc.

57. Here it would be relevant to refer to the cross examination of the prosecutrix. She has deposed that "Whenever I used to go for my job to the call centre, I used to take the mobile phone with myself otherwise it would remain at home." If the mobile phone of the prosecutrix was available with her, then there was no reason why she did not contact her family or the police when she was allegedly taken away by accused Sumit (Proclaimed Offender). This fact remains unexplained by the prosecution due which the inference can be drawn that she had gone with her consent.

58. The prosecutrix has deposed in her cross examination that "I do not know whether or not during the period of May, 2012 to September, 2012 my mother telephoned accused Raju @ Rahul or she received his call. It is correct that my mother was not knowing accused Raju @ Rahul prior to his arrest. From Saharanpur, I had not telephoned my mother." However, the CDRs produced by the prosecution show that there were conversations between the mobile number of accused Raju @ Rahul and the mother of the prosecutrix.

59. The prosecutrix has deposed in her cross examination that "In Nihal Vihar no children or any maid was residing with me." PW7 has deposed that "Once I had seen one girl in the house of Lata Singh. Sometimes she Sessions Case Number : 95 of 2013.

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used to go buy cold drinks or some thing else from the market." He could not identify the prosecutrix from her photograph on the Hue and Cry notice. If the girl seen by PW7 is not the prosecutrix, the same indicates that there was some other maid in the house of accused Lata Singh @ Promila Singh.

60. The prosecutrix has deposed in her cross examination that "We stayed in the house of someone at Sahranpur. I cannot tell if that person was relative or friend of accused Rahul where I stayed." As the prosecutrix has failed to disclose about the person in whose house she stayed and his relationship with accused Raju @ Rahul, her evidence becomes difficult to believe.

61. Further, when the prosecutrix was taken to Sehgal Nursing Home, she should have been able to tell the distance between her house and Sehgal Nursing Home but she could disclose the same in her cross examination. She has deposed that "I cannot tell the distance between Sehgal Nursing Home and the house where I stayed at Sahranpur Vol. I was taken to Sehgal Nursing Home by the accused in a car. I was taken to Sehgal Nursing home about 2-3 times." Here, it would be relevant to mention that neither any doctor of Sehgal Nursing Home has been produced and examined nor any medical record of the prosecutrix if Sehgal Nursing Home has been produced in evidence by the prosecution. No explanation for the same is coming forth from the prosecution despite the allegations of forced abortion being made against the accused.

62. The prosecutrix has alleged that she was kept in the house of accused Lata Sessions Case Number : 95 of 2013.

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Singh @ Promila Singh and has deposed on the same lines. However, her version appears to be doubtful when she has deposed that no one visited the house. In her cross examination, the prosecutrix has deposed that "In my presence the landlord never came upstairs to the second floor to take rent from accused Lata Singh. Similarly, neither any electrician nor any plumber visited the house in my presence during my stay over there. I was never asked to go to the market to buy anything by any member of the house. During my stay at Nihar Vihar, no guest or relatives of accused persons visited there." The prosecutrix has deposed that accused Sumit (PO) has taken her in May, 2012, kept her in a room for 10 days and then left her with accused Lata Singh from where in September or October, 2012, accused Raju @ Rahul took her to Sharanpur. When she was in the house of accused Lata Singh @ Promila Singh from May, 2012 till September or October, 2012, it is not possible that no one visited the house.

63. The prosecutrix has given a new story in her evidence regarding Ms.Romi, her neighbor who had allegedly helped her mother monetarily for her treatment at Aashrwid Nursing Home, Shiv Vihar. She even remembered the mobile phone number of Ms.Romi but did not contact her at any point of time. The same is not mentioned in her statement under section 164 of the Cr.P.C. (Ex.PW3/A). The prosecution has not furnished any explanation for the same due to which the prosecution version appears doubtful.

64. The prosecutrix has deposed in her examination in chief that accused Lata Singh @ Promila Singh used to take her different places in a taxi for her prostitution However, in her cross examination, she has deposed that "I Sessions Case Number : 95 of 2013.

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had gone out of the house two-three time with accused Lata during my stay at Nihal Vihar." The prosecution has not furnished any explanation for the discrepancy due to which the prosecution version appears doubtful.

65. The prosecutrix has deposed in her examination in chief that accused Raju @ Rahul and Lata Singh @ Promila Singh used to go out of the house and keep her locked inside. However, in her cross examination, she has deposed that "Accused Lata Singh and Raju @ Rahul used to remain in the house all the time and they were not working anywhere." The prosecution has not furnished any explanation for the discrepancy due to which the prosecution version appears doubtful. Here, it would also be relevant to mention the evidence of PW7 who has deposed that accused Raju @ Rahul did not reside in the house of accused Lata Singh @ Promila Singh and used to visit there.

66. The prosecutrix has claimed that she was kept by accused Raju @ Rahul at Saharanpur forcibly. However, when she was recovered, PW20 was told by her that she was living with accused Raju @ Rahul with her free consent. PW20 has deposed that "We met prosecutrix Ms. Maya who told us that she was living with accused Rahul with her free consent." The prosecutrix has also told Dr.Sweety (PW2) in her MLC (Ex.PW2/A) that she was living with Raju @ Rahul with her consent. When two prosecution witnesses so depose, then it can be said that the prosecution case is false. The prosecutrix is a major and appears to be a consenting party. (Reliance can be placed upon Om Prakash @ Kalia v. State, 2011 (1) JCC 391).

67. It is claimed by the prosecutrix that she was being forcefully indulged into Sessions Case Number : 95 of 2013.

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the prostitution. However, it transpires on perusal of the file that there is no investigation conducted by the Investigating officer of the present case to identify the person (s) who had procured the prosecutrix to commit prostitution from accused Lata Singh @ Promila Singh and as such all the allegations of forceful prostitution leveled by the prosecution appear to be baseless. Also there is no recovery from the accused of the earning of the prostitution earned at the behest of the prosecutrix. The prosecutrix has neither disclosed regarding the different places or addresses where she was allegedly taken to by accused Lata Singh @ Promila Singh for prostitution nor the taxi numbers or particulars of their drivers nor the names and other details of the clients.In the absence of any proof regarding the prostitution, no offence is established (Reliance can be placed upon Renu Bansal & etc. v. U.T. Chandigarh, 2010 Crl.L.J. 600 and S.Vijaya alias Ameen v. State of Karnataka, 2010 Crl.L.J. 1050).

68. The prosecution has claimed that accused Lata Singh @ Promila Singh had abeted her rape by making her indulge in prostitution and accused Raju @ Rahul had raped her also. The prosecution has failed to prove that accused Lata Singh @ Promila Singh had abeted her rape by making her indulge in prostitution, as discussed above, and it is not the case of the prosecution that accused Lata Singh had made accused Raju @ Rahul rape the prosecutrix.

69. The evidence of PW7 is relevant here as he has deposed that accused Lata Singh was doing work of catering and accused Raju @ Rahul is not her husband nor resides there but only visits her.

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70. Where the evidence of the prosecutrix is found suffering from serious infirmities, contradictions and inconsistencies with other material and there being no forensic or medical evidence, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).

71. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).

72. Here, it would be relevant to mention that in DD No.24 A (Ex.PW1/A), a missing report was registered by PW12, the mother of the prosecutrix without expressing any suspicion on anyone. In her complaint (Ex.PW10/A), PW12 has expressed her suspicion on Rahul that he has, Sessions Case Number : 95 of 2013.

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with bad intention, made made her daughter elope with him for marriage. However, in her evidence as PW12, mother of the prosecutrix has not so deposed and instead had claimed that "One day a lady in the name of Ms. Lata had come to my residence. Accused Lata is present in the court today (correctly identified). She told me that my daughter ...is with her husband Mr. Rahul. Thereafter, I along with accused Lata went to P.S Uttam Nagar. Police advised Lata to lodge a report in the concerned P.S where she was living. Ms. Lata had told us her residence number of Nihal Vihar. But she did not lodge any complaint in the police station where she was living. Ms. Lata had taken my mobile phone number. One day I received a call from one Rahul stating that my daughter... was with him and if I reported the matter to the police, he will take my daughter to somewhere else and we would not be able to do any thing in this regard. I gave the mobile phone number to the police from which I received a call from Rahul on my mobile phone." The prosecutrix has not deposed at all on the lines of her mother and her version is completely different.

73. It is clear from the evidence of PWs 14 and 21, Nodal Officers of the Telecom Companies that the mother of the prosecutrix and accused Raju @ Rahul were in continuous and constant touch during the period of the alleged offence. The prosecutrix has told PWs 2 and 20 that she was with accused Raju @ Rahul with her free consent. No one was with her when she was recovered which shows that she was living freely.

74. It appears possible that after the police forcefully brought accused Raju @ Rahul and the prosecutrix to Delhi, as alleged by them, and after she came Sessions Case Number : 95 of 2013.

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in contact with her mother, she has changed her version of not supporting the accused Raju @ Rahul and implicated him falsely in the present case at the behest of her mother as the relationship between the prosecutrix and the accused was not liking to the mother of the prosecutrix.

75. It is also borne out of the record that the prosecutrix did not shout for help or raise alarm or beat the accused to save herself or escape. She did not try to escape or shout for help while she was allegedly taken by accused Lata Singh @ Promila Singh for prostitution, while being taken to Saharanpur and to the Sehgal Nursing Home. She did not disclose about any incident to the neighbours, doctors, clients, taxi drivers, etc. It is the case of the prosecution that accused Raju @ Rahul was apprehended from Saharanpur Pul and he had led the police to the place where the prosecutrix was staying with him at Saharanpur. It also shows that the prosecutrix was without acuused Raju @ Rahul but still she did not try to escape which indicates that she was living with him with her free consent.

76. Here, the judgment of the hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.

77. The prosecutrix has told PWs 2 and 20 that she was with accused Raju @ Rahul with her consent. She was fully aware of moral quality of act and Sessions Case Number : 95 of 2013.

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inherent risk involved, she had considered pros and cons of act as she is not only educated but also she was working and had a broader horizon. The participation of prosecutrix in sexual act could be said to be voluntary and deliberate. (Reliance can be placed upon Deelip Singh Alias Dilip Kumar vs. State of Bihar, AIR 2005 SC 203). It is clear from the record that the prosecutrix is now 19 years old and working privately. She is a mature girl. The prosecutrix was fully aware that she had taken of risk of having physical relations with the accused without his marring her. She was fully aware of the pros and cons of the act being working and mature.

78. The above mentioned overwhelming contradictions and glaring inconsistencies in the evidence of the prosecutrix and the other statements of the porsecutrix cannot be ignored. The veracity of the testimony of the prosecutrix stands shattered. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.

79. Prosecutrix is a consenting party qua accused Raju @ Rahul. If a full grown girl consents to act of sexual intercourse and continues to indulge in such activity, it is act of promiscuity on her part and not an act induced by misconception of fact. It appears that the prosecutrix despite knowing about all the pros and cons that the accused has not married her, she still had physical relations with him. She apparently took this step at her own risk and peril. It may be as she was in love with him and was desperate to marry him that such a major step was taken by her.

80. Despite knowing everything, the prosecutrix still preferred to be with the Sessions Case Number : 95 of 2013.

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accused and did not raise any objection or resistance. This fact clearly indicates that the prosecutrix was a consenting party. It also transpires from the evidence of the prosecutrix that she went to Saharanpur with him and stayed with him. This indicates that she herself was interested in the physical relations with the accused. It appears that the prosecutrix was aware of the acts she was indulging in and she being a major surely knew about the morality and complications attached to the act and hence the accused cannot be held liable.

81. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.

82. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the Sessions Case Number : 95 of 2013.

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prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime.

83. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.

84. Consequently, no inference can be drawn that both the accused persons are guilty of the charged offence as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that offences under sections 366, 376, 313 and 34 of the IPC and under section 4 and 5 Immoral Traffic (Prevention) Act 1956 were committed by accused Raju @ Rahul and offences under sections 109 and 376 of the IPC and under section 4 and 5 Immoral Traffic (Prevention) Act 1956 were committed by accused Lata Singh @ Promila Singh.

85. The prosecutrix is an adult. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about her conduct and Sessions Case Number : 95 of 2013.

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behaviour at any time and having established physical relationship number of times with her consent and without any resistance. She never informed her family about her relationship with the accused. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.

86. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was abducted, raped and forced to abort and forced into prostitution by accused Raju @ Rahul and that accused Lata Singh @ Promila Singh abetted her rape and forced her into prostitution.

87. The hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.

a. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. b. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

c. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

d. By and large people cannot accurately recall a conversation and Sessions Case Number : 95 of 2013.

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reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. e. In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.

f. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.

g. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.

88. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations against the accused.

Sessions Case Number : 95 of 2013.

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89. In the light of the aforesaid nature of deposition of the prosecutrix, PW3, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:

"Where witness make two inconsistent statements in their evidence 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."

90. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.

91. Consequently, no inference can be drawn that accused Raju @ Rahul and Lata Singh @ Promila Singh are guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.

92. In the judgment reported as Namdeo Daulata Dhayagude and others v.

State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.

93. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses Sessions Case Number : 95 of 2013.

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make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.

94. It is also saddening to note that when the prosecutrix, an unmarried young girl, gets involved with a man, in order to save her respect or her family's respect in society or when she may have one sided love for a man, she is projecting herself to be a victim and the accused to be culprits and guilty of committing offences against her when she herself is fully aware that the accused have not committed any offence. A case where the girl agrees to have sexual intercourse on account of her love and passion for the boy and not solely on account of the misrepresentation made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her, despite having all good intentions to do so, has to be treated as innocent.

95. The evidence of the prosecutrix suffers from several overwhelming inconsistencies and contradictions which are too major to be ignored. The same strike a fatal bow to the prosecution case. She has failed to produce any record of her alleged abduction, rape, prostitution, abortion, etc. She did not even try to escape or shout for help when the alleged offences were committed. She did not contact her family despite the mobile phone being with her. She even told the prosecution witnesses that she was with accused Raju @ Rahul with her free consent. In the light of the aforesaid nature of deposition of the prosecutrix, PW3, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated Sessions Case Number : 95 of 2013.

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as trustworthy and reliable.

96. All the above facts and the ratio of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offences allegedly committed by accused Raju @ Rahul and Lata Singh @ Promila Singh and they merit to be acquitted.

OTHER MATERIAL WITNESSES

97. As already discussed while considering the evidence of the prosecutrix, it can be held that the evidence of PW7 and PW12 is of no help to the prosecution. PW7 who is the husband of the landlady of acused Lata Singh @ Promila Singh has not deposed anything against the accused and in favour of the prosecution. The evidence of PW12 is mainly hearsay and she is the complainant of the case.

98. PW2 and PW20 have also not helped the prosecution case as the prosecutrix had told them that she was with accused Raju @ Rahul with her free consent. PW2 is the examining doctor and PW20 is a witness of recovery of the prosecutrix.

99. PWs 14 and 21, Nodal Officers of the Telecom Companies have produced the CDRs of the mobile phones of the mother of the prosecutrix and accused Raju @ Rahul which show that they were in communication during the period of the alleged offences which further indicates that the family of the prosecutrix was aware that the prosecutrix was with him with her consent.

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100. It is clear that the evidence of the prosecution witnsesses do not support the prosecution case.

PUBLIC WITNESSES NEITHER CITED NOR EXAMINED

101. The prosecution has failed to examine some very material witnesses and this lapse gives a severe blow to the prosecution case.

102. The Investigation Officer has failed to associate in the investigation, the staff and owner of Institute IIMPS, Vikas Puri, Shanker Garden, Delhi where the prosecutrix was working; the doctors and staff of Anju Sehgal Hospital, Saharanpur where an abortion was forcibly got done; relative of accused Raju @ Rahul who went with the police to search for him at Saharanpur Railway Station; the doctors and staff of Mata Chanan Devi Hospital where the parents of the prosecutrix had taken her as she had pain in her abdomen but after they declined to treat her, she was taken to Aashrwid Nursing Home, Shiv Vihar and ultrasound was conducted; Ms.Romi, neighbor of the mother of the prosecutrix who helped her by giving her money when the prosecutrix was admitted in Ashirwad Nursing Home; Ms. Kafia Begum was the owner and landlady of house no. RZ-A- 242 Satsang Road, Nihal Vihar Delhi and who had let out the second floor of the same to accused Lata Singh @ Promila; the owner / landlord of the house of someone at Sahranpur where the prosecutrix stayed with accused Raju @ Rahul; neighbours of the houe of accused Lata Singh @ Promila Singh; taxi drivers and clients when the prosecutrix was allegedly taken for prostitution, etc. They have have not been associated in the investigation nor cited in the list of prosecution witnesses nor produced nor examined by the prosecution.

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103. By not citing, producing and examining the above persons, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused.

MENS REA / MOTIVE

104. Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

105. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence.

The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and un-amenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

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106. In the present case, a story has been projected that accused Raju @ Rahul, in furtherance of common intention with co-accused, has abducted the prosecutrix, raped her, indulged her in prostitution and caused her abortion; accused Lata Singh @ Promila Singh has indulged the prosecutrix in prostitution and abetted her rape. This version appears to be untrue as there is no reason why they would do so. No reason is shown as to why the accused would jeopardize their future.

107. There is nothing on the record to show that the accused have committed any offence, as alleged by the prosecution. They are mature persons and capable of understanding the implications of their acts.

Accused Lat Singh @ Promila Singh is married and has children. She is dong work of catering. It has been revealed during trail that accused Raju @ Rahul is a musician and had participated with the Jail Rock Band "Flying Soul" vide order dated 06.07.2014. No reason is shown as to why the accused persons would jeopardize their future.

108. Here it may be mentioned that PW12 has deposed that she was informed by accused Lata Singh @ Promila Singh that her daughter, the prosecutrix, was with accused Raju @ Rahul. If Lata Singh @ Promila Singh had committed any offence, she would never have disclosed regarding the whereabouts of the prosecutrix to her mother. If accused Raju @ Rahul had committed any offence, he would never have talked on phone with the mother of the prosecutrx.

109. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from Sessions Case Number : 95 of 2013.

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sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

110. There does not appear to be any criminal intention and mens rea on the part of the accused persons namely Raju @ Rahul and Lata Singh @ Promila Singh.

DEFENCE OF THE ACCUSED

111. In his statement under section 313 of the Cr.P.C., both the accused namely Raju @ Rahul and Lata Singh @ Promila Singh have stated that they are innocent and have been falsely implicated in this case. Both the accused have controverted and rebutted the entire evidence against them submitting that they have not committed any offence.

112. Accused Raju @ Rahul has preferred to lead defence evidence and he has examined Ct.Subhash who produced the articles seized in the personal search (jama talashi) of accused Raju @ Rahul i.e. one mobile phone and two SIM cars which were contained in a polythene bag in unsealed condition. Accused Lata Singh @ Promila Singh has preferred not to lead any defence evidence.

113. It is also clear while discussing the different statements of the Sessions Case Number : 95 of 2013.

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prosecutrix, that her version is neither reliable nor believable.

114. Therefore, considering the unreliable evidence of the prosecutrix which suffers from overwhelming contradictions and glaring inconsistencies, the prosecution version is not believable and reliable, the defence is not even required to be proved.

115. The case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.

116. Therefore, as the prosecution version is unreliable and unbelievable, the defence of the accused appears to be plausible that they have not committed any offence.

INVESTIGATION

117. The investigation conducted in the present case has been deposed by police witnesses. The documents have been proved by their authors and signatories to the same. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.

118. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. There is nothing on the record to show that their testimonies are false or not reliable.

119. However, it must be mentioned here again that the Investigation Sessions Case Number : 95 of 2013.

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Officer has failed to associate some very material witnesses, as mentioned above.

120. It is the actual crime which is important than the investigation.

Where the actual crime is being elaborated and proved in the evidence of the prosecutrix and other material witnesses, then the investigation becomes less important as prosecutrix has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused.

121. 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.

122. Therefore, the investigation is not being taken into consideration although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable and believable.

FINAL CONCLUSION

123. The prosecution has failed to furnish any explanation in respect of the numerous contradictions and inconsistencies in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant Sessions Case Number : 95 of 2013.

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case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix and other prosecution witnesses is that the accused has not committed the alleged offences.

124. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had committed the offences.

125. Since the evidence of the prosecutrix, PW3, is neither reliable nor believable as there are overwhelming contradictions in her different statements as well as in totality with the other evidence on record, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.

126. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; ii. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

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iii. The circumstances should be of conclusive nature and tendency; iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

127. Applying the above principles of law to the facts of present case, it stands established that the accused have not committed any offence against her. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

128. Consequently, no inference can be drawn that the accused namely Raju @ Rahul and Lata Singh @ Promila Singh are guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.

129. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.

130. If the prosecution evidence is read and considered in totality of Sessions Case Number : 95 of 2013.

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circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.

131. It is a case of heinous crime of rape which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place. Here in the present case, is a prosecutrix who is not truthful. She has given different statements and made numerous contradictions and inconsistencies which remain unexplained.

132. The prosecution has miserably failed to prove the charges against accused Raju @ Rahul and Lata Singh @ Promila Singh that on 27.05.2012, the prosecutrix (name mentioned in file and withheld to protect her identity) was kidnapped by co-accused Sumit (Proclaimed Offender), who raped the prosecutrix and later on, he handed over her custody to accused Raju @ Rahul and his wife co-accused Lata Singh @ Promila Singh; during the period 27.05.2012 to 29.09.2012, accused Raju @ Rahul Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 51 of 55 ::-

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forcibly committed rape upon the prosecutrix against her consent and also confined her at different places, as mentioned by prosecutrix in her statement under section 164 Cr.P.C made before learned Metropolitan Magistrate as well as to the police with intention that she may be compelled to marry any person against her will or forced to illicit intercourse; during the period 27.05.2012 to 29.09.2012, accused Raju @ Rahul along with his wife accused Lata Singh @ Promila Singh forced the prosecutrix to have sex with other persons against her consent and used to take money in lieu of the same and also used to confine her against her consent at different places, as mentioned in the statement under section 164 Cr.P.C as well as before the police; during the aforesaid period accused Lata Singh @ Promila Singh abetted the prosecutrix to have sex with other persons against her consent. Accused Raju @ Rahul also got aborted the pregnancy of 3-4 months of the prosecutrix against her consent.

133. 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 accused Raju @ Rahul and Lata Singh @ Promila Singh. All the above facts indicate that there is no veracity in the prosecution case in respect of the offences allegedly committed by accused Raju @ Rahul and Lata Singh @ Promila Singh and they accused merit to be acquitted.

134. Accordingly, Mr. Raju @ Rahul, the accused, is hereby acquitted of the charges for the offences under sections 366, 376/34, 313 of the IPC and under sections 4 and 5 of the Immoral Taffic (Prevention) Act.

Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 52 of 55 ::-

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135. Ms. Lata Singh @ Promila Singh, the accused, is hereby acquitted of the charges for the offence of rape under sections sections 4 and 5 of the Immoral Taffic (Prevention) Act and under sections 109 / 376 of the IPC.

COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES

136. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

137. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

138. It would not be out of place to mention here that today there is a public outrage and a hue and cry is 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 neither reliable nor believable, 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.

Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 53 of 55 ::-

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139. Here, I would also like to mention, once again as already observed in several other similar cases, that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape, after trial, as evidence of the prosecutrix is not reliable. In the circumstances, such a man, an acquitted accused, who has remained in custody for a considerable period during inquiry, investigation and trial and who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.

140. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

141. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room and be revived as and when accused Sumit (who is a proclaimed offender) is apprehended.

Announced in the open Court on                                     (NIVEDITA ANIL
SHARMA)

this 11th day of February, 2016. Additional Sessions Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 54 of 55 ::-

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Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

****************************************************************** *** Sessions Case Number : 95 of 2013.

Unique Case ID Number : 02401R0626252012.

FIR No.396/2012, Police Station Uttam Nagar, Under sections 313, 366, 376 and 34 of the Indian Penal Code. State versus Raju @ Rahul & Ors. -:: Page 55 of 55 ::-