Delhi District Court
Sc No: 300/17 State vs . Kallu Ram & Ors on 12 April, 2018
SC No: 300/17 State Vs. Kallu Ram & Ors
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 300/17
FIR No. 682/16
Police Station Dabri
Under Section 323/376/354B IPC
State
Versus
1. Kallu Ram S/o Sh. Bhullan
2. Dinesh @ Ravi S/o Sh. Kallu Ram
3. Smt Santosh W/o Sh. Kallu Ram
4. Sanjay S/o Sh. Kallu Ram
5. Sandeep S/o Sh. Kallu Ram
6. Pooja W/o Sh. Sandeep
7. Parveen S/o Sh. Kallu Ram
All Residents of:
House No. C-7, Gali No.5,
New Janki Puri, New Delhi. ....Accused Persons
Date of institution 26.05.2017
Judgment reserved on 31.03.2018
Judgment Pronounced on 12.04.2018
Decision Acquitted
Judgment 1 of 22
SC No: 300/17 State Vs. Kallu Ram & Ors
JUDGMENT
1. Accused Kallu Ram & Dinesh @ Ravi are facing trial on allegations of committing rape and disrobing prosecutrix and all other accused persons are facing trial on allegations of beating her.
2. FIR was registered on statement of prosecutrix who alleged that on 18.09.2016 her father-in-law Kallu Ram at about 07:00 am come to her room, pulled her to vacant room and committed rape on her. When she narrated this incident to her husband (Sanjay), he told prosecutrix to abide by dictates of his father. In evening her devar Dinesh raped her and she is facing this torture for three years. On 19.09.2016, at 12 midnight her father- in-law & brother-in-law beaten her. In morning, prosecutrix called her brother and when he came at about 03:00 pm, her brother was thrown out by accused persons. Prosecutrix was attacked by knife and was beaten. Her brother then called at 100. Prosecutrix prayed for an appropriate action against accused persons.
Judgment 2 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
3. During investigations, prosecutrix was medically examined and her statement was recorded U/s 164 Cr.P.C. Accused persons joined the investigations. Inquiries were made from them and they were charge-sheeted without arresting them.
4. Charge for offence punishable U/s 354B/376 IPC was framed against Kallu Ram & Dinesh @ Ravi. Charge for offence punishable U/s 323 IPC was framed against other accused persons. They pleaded not guilty and claimed trial.
5. Prosecution examined 8 witnesses.
PW Name of witness Nature of Documents proved witness 1 Prosecutrix Prosecutrix Supported prosecution case, proved her statement recorded by police as Ex. PW1/A, her medical examination as Ex.
PW1/B and her statement recorded U/s 164 Cr.P.C as Ex.
PW1/C. Her blouse as Ex. P-1.
2 Smt S Mother of Supported prosecution case.
prosecutrix
Judgment 3 of 22
SC No: 300/17 State Vs. Kallu Ram & Ors
3 S Brother of Supported prosecution case.
prosecutrix Deposed that on 20.09.2016 he
went to matrimonial house of
prosecutrix and there accused
persons beat him & her sister.
4 Trishpal Uncle of Supported prosecution case.
prosecutrix
5 Ms Geeta Landlord Rented property to accused
Sanjay vide rent agreement
Ex. PW5/B.
6 Dr. Sanjay Rai Doctor Proved medical examination of
prosecutrix vide MLC
Ex. PW1/B.
7 Dr. Madhu Doctor Proved medical examination of
Kumari prosecutrix vide MLC
Ex. PW1/B.
8 SI Chanderkanta Investigating Prepared Rukka Ex PW8/A
Officer medically examined prosecutrix
and accused Kallu Ram &
Dinesh, collected their exhibits
and got deposited it to FSL,
collected FSL result as Ex F-1.
6. Accused persons gave a statement admitting FIR in question, medical examination of prosecutrix and medical examination of Kallu Ram & Dinesh @ Ravi. Accused persons admitted statement of prosecutrix recorded U/s 164 Cr.P.C. In view of their statement, relevant witnesses to prove the aforesaid documents were dropped from array of witnesses.
Judgment 4 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
7. Statement of accused persons were recorded U/s 313 Cr.P.C. wherein all of them stated that they have been falsely implicated by prosecutrix. Accused persons did not lead any evidence in defense.
8. It is contended on behalf of accused persons that testimony of prosecutrix in relation to incidents of sexual assault is not worthy of any evidence. It is submitted that there is no medical, forensic or corroborative evidence to substantiate allegations of sexual assault.
9. On the other hand Ld Addl. PP submits that prosecutrix in all her statements categorically stated that accused Kallu Ram & Dinesh @ Ravi committed rape upon her and other accused persons gave beatings to her. It is argued that no material contradiction has come in testimony of prosecutrix and as such the case against accused persons stands proved beyond any reasonable doubt.
Judgment 5 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
10. I have given thoughtful consideration to arguments advanced at bar and perused the entire material on record.
11. Versions of prosecutrix: Loose English Translation of statement of prosecutrix (initial complaint) as Ex PW1/A reads as under:
"My name is .... My age is 22 years. My problem is that four years have passed of my marriage. I have a two & half year child. On 18.09.2016 at about 07:00 am my father-in-law Kallu Ram came in my room, pulled me to a vacant room and after made to lie, he raped me. I cried and screamed that I am your daughter but he did not listen. Then I narrated this incident to my husband. He said that "my father is Government servant and I should obey him, otherwise I will kill you". In evening my devar raped me and said that I should make him happy and after removing my saree he raped me. I am facing this torture for three years. On 19.09.2016, at 12 midnight my father- in-law & brother-in-law gave beatings to me and misbehaved with me and harassed me throughout night. In morning, I called my brother Sumit. He came on 21st at about 03:00 pm. My mother-in-law threw out my brother from the house and closed outer gate. All family members gave beatings to me. Then I was attempted to kill by knife but I managed to come outside. Then I felt dizzy. Then I do not know. My brother was outside, at same time he called at 100 and Judgment 6 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors police came. In police station they made inquiries but we were not heard. I want an appropriate action on my complaint."
12. Loose English Translation of statement of prosecutrix recorded U/s 164 Cr.P.C as Ex PW1/C reads as under:
"I am second wife of my husband. First wife has been left. I am married for four years but since beginning my in-laws are harassing me for dowry. One year before I went to my village. For the same reason that my father-in-law had teased me. Then my father-in-law had teased me, misbehaved with me and touched on my chest & private parts. On 18.09.2016 at 07:00 am father-in-law pulled me by my hands and took me in his room. My mother-in-law bolted the door from outside. My husband stated "abide by words. My father is a Government servant and he will keep you in money" Then my father-in-law raped me. I cried a lot and told him that I am like his daughter but he did not pay heed. When I asked my husband he told that he will kill me. On the same day at about 8:00 -09:00 am my devar Ravi @ Dinesh did the same act and raped me. At that time my husband was going to his office. My room is at first floor, at that time I was alone. My devar came in my room and raped me. I screamed but inspite of my mother-in-law & devrani were at home they did not come to save me. On 19.09.2016 at 12 midnight my father-in-law & brother-in-law gave beatings to me, misbehaved with me and both tore my clothes. On 21.09.2016 at about 03:00 pm my brother came to meet me. As soon as he entered, mother-in-law and other family members threw out my brother from the house. Then after closing door all of them gave Judgment 7 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors beatings to me and attempted to kill by knife. Somehow I managed to come outside and fell unconscious. Sumit called police by calling 100. My child is two & half years old and is in matrimonial home. My child be given to me. "
13. Prosecutrix in her examination-in-chief deposed as under:
" ....... I got married to Sanjay (present in the Court, correctly identified through wooden partition) about 4 years ago. For 2-3 months, my relations with my in- laws were cordial but slowly gradually they started mal-treating and taunting me for bringing less dowry. After about one year of my marriage, I gave birth to my son but behavior of my in-laws went from bad to worse. Sometimes, my husband after beating me used to leave me at my parental house.
On 18.09.2016, at about 7 am, my father-in-law Kalu Ram (present in the Court, correctly identified through wooden partition) raped me. I cried and screamed but nobody helped. After the incident I lied down in my room. My husband came in the room at about 12 noon. I told him that his father has raped me. My husband told me to abide by dictates of his father Kalu Ram who is a Government servant and he can kill me. On the same day, at about 7-8 pm, my devar Dinesh (present in the Court, correctly identified through wooden partition) came to my room and immediately started pulling my clothes. He removed my saree and told me that if I can please his father then I should please him also. Then accused Dinesh also raped me. Thereafter he left. On next day, i.e. on 19.09.2016, my father-in-law, my mother-in-
Judgment 8 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
law Santosh (Present in the Court today, correctly identified), my brothers-in-law namely Sandeep, Praveen & Dinesh (Present in the Court today, correctly identified), my husband and my sister-in- law(devrani) Pooja came to my room and they all started beating me.
On 20.09.2016, I called my brother. At about 3 pm, my brother came to my house. My mother-in-law Santosh and other family members pushed him out of our house. My husband & Dinesh assaulted me with a knife and then I became unconscious. My brother called at 100. Police came there. I was taken to PS Dabri and the accused persons were also taken there. Then I lodged the complaint.
14. First argument of defence is that testimony of prosecutrix is wavering and she has changed her versions in different stages of trial, which renders her testimony not worthy of any credence. In order to examine the veracity of testimony of prosecutrix, it would be appropriate to scrutinize as to what she has alleged.
15. In her initial complaint Ex. PW1/A, prosecutrix alleged that on 18.09.2016 at about 7.00 am her father-in-law accused Kalu Ram came in the room and pulled her to the Judgment 9 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors adjoining vacant room and there he committed rape upon her. If we go through her statement, Ex. PW1/B (recorded by Ld. Judge u/s 164 Cr. P.C.) prosecutrix stated that when she was pulled in the vacant room then her mother-in-law bolted the door from outside and her husband stated to abide by his father and then her father-in-law raped her. In her testimony, prosecutrix deposed that at about 7.00am, her father-in-law Kalu Ram raped her and when she cried and screamed nobody helped. After the incident at about 12 noon she told her husband that accused has raped her.
16. All the three narrations given by prosecutrix of the incident of her alleged rape by accused Kalu Ram are different. In her initial complaint, prosecutrix does not mention about the presence of her husband and mother-in-law at the time of incident whereas in her statement Ex. PW1/B prosecutrix states that her mother-in-law bolted the door from outside and her husband told her to agree by the dictates of his father. In her testimony prosecutrix does not say that either of her mother-in-law or Judgment 10 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors accused were present at the spot. Rather in her cross examination, prosecutrix stated that when her father-in-law dragged her to other room and committed her rape, she raised alarm but nobody from the family came to her rescue.
17. As per prosecutrix on the same day in the evening time, she was raped by her brother-in-law accused Dinesh @ Ravi but she did not give the details about the presence of other family members at the time of incident in her complaint Ex. PW1/A. Prosecutrix testified that accused Dinesh @ Ravi came to her room and after removing her saree committed rape upon her and thereafter he left.
18. During her cross examination, prosecutrix testified that she did not make any complaint to police after her father-in- law raped her by giving the reason that she was not aware about the process to call police. Prosecutrix further deposed that her mobile was not with her as the accused persons hid her mobile.
Judgment 11 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
Prosecutrix ultimately found her mobile on 19.09.2016 at about 9- 10 am and ultimately she disclosed the incident to her brother on 20.09.2016.
19. PW-3 (brother of prosecutrix) deposed that on 18.09.2016 at about 10.15 am he received a call from prosecutrix that accused persons have committed her rape and on 20.09.2016 when he went to the house of prosecutrix, he was not allowed to enter the house and all accused persons started quarreling with prosecutrix and gave beatings to him. Brother of prosecutrix during his cross examination admitted that on 18.09.2016 prosecutrix informed him over mobile that she was raped by accused Kalu Ram & Dinesh and at that time he was in Sarita Vihar on his duty. PW-3 deposed that at that time he was not aware that a complaint could be made at 100 and failed to give any reason as to why her sister did not inform the incidents of rape to police on 18.09.2016 itself. PW-3 further deposed that at about 10.30 am, he was informed by prosecutrix that her father-in-law Judgment 12 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors Kalu Ram committed rape upon her and she was crying and testified that as he was alone he did not come to the house of prosecutrix at that time.
20. From testimony of PW-3 (brother of prosecutrix) it is evident that as per him, prosecutrix disclosed that on 18.09.2016 at about 10.30 am i.e. on the day of incident itself, accused Kalu Ram has committed rape upon her. This goes to show that prosecutrix has lie about the fact that she was having mobile phone and no reasons are appearing as to why she did not inform the police in respect of the incident of her rape by accused Kalu Ram. It is hardly unbelievable that a brother who would come to know about the commission of rape upon his sister would not even care to visit her. Since prosecutrix was having a mobile phone and his brother also became aware about the incident of rape, anyone of them could have easily reported the matter to the police.
Judgment 13 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
21. PW-3 (brother of prosecutrix) though gave an explanation that he was not aware that a complaint could be made at 100 but on the same breath, he deposed that on 20.09.2016 accused persons were quarreling with prosecutrix and were beating her. He called at 100. If PW-3 would have called at 100 on 20.09.2016 then there can be no reason that why he did not report the incident of 18.09.2016 to police on that day.
22. From testimony of PW-3 it has become clear that on 18.09.2016 prosecutrix called her brother and told him about the commission of her rape. If prosecutrix informed about the incident to her brother, there could be no reason that she could not have reported the incident to police in the morning when she was raped by accused Kalu Ram or in the same evening she was raped by her devar Dinesh.
Judgment 14 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
23. During cross examination of prosecutrix, she admitted that earlier also she lodged complaint against accused persons at Mahila Thana, District Bagpat, therefore, an explanation given by prosecutrix that she was not aware about the process to call police after her father-in-law & devar raped her is not believable.
24. More so, in her initial complaint Ex. PW1/A prosecutrix alleged that accused Kalu Ram and Dinesh @ Ravi were sexually assaulting her for past three years and in her testimony as well she deposed that accused Kalu Ram and Dinesh were sexually assaulting her for three years prior to the incident dated 18.09.2016 and she had lodged a complaint against them at Mahila Thana, PS Bagpat that they were sexually assaulting her but none of such allegations is appearing in her statement Ex. PW1/C recorded by Ld. MM .
Judgment 15 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
25. During course of her cross-examination prosecutrix admitted having executed documents Ex. PW1/D-1 & PW1/D-2 at Mahila Thana, PS Bagpat and in none of the documents prosecutrix has made any such allegation against accused persons.
26. Nonetheless, PW-8 IO WSI Chanderkanta deposed that on 20.09.2016 DD No. 48A (Ex. PW8/D-1) was recorded in respect of call that in-laws of sister of caller were beating her. IO testified that this call was marked to WSI Kirti vide DD No. 11B (Ex PW8/D-2) and admitted that on 20.09.2016, prosecutrix did not make any complaint in respect of commission of her rape by accused Kalu Ram or Dinesh @ Ravi. No reasons are appearing as to why PW-3 when called at 100 on 20.09.2016 did not straight away lodged a complaint in respect of commission of rape by accused Kalu Ram & Dinesh.
Judgment 16 of 22
SC No: 300/17 State Vs. Kallu Ram & Ors
27. In Sadashiv Ramrao Hadbe vs. State of
Maharashtra & Anr.'2006 (10) SCC 92, Hon'ble Apex Court while reiterating that in a rape case, accused could be convicted on sole testimony of the prosecutrix if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony when entire case is improbable and unlikely to have happened.
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the 'whole surrounding circumstances are highly improbable and belie the case set; up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
28. In Abbas Ahmed Choudhury v. State of Assam (2010) 12 SCC 115, observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire Judgment 17 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors story truthfully, the Hon'ble Supreme Court held :
"Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW-1."
29. Hon'ble Supreme Court in decision reported as (2012) 7 SCC 171 'Narender Kumar Vs. State (NCT of Delhi)' held :
24. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected."
Judgment 18 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
30. It is evident that at every stage of trial prosecutrix has come up with a new version which is hardly consistent with her previous versions. It is clear from the evidence that prosecutrix is not telling the truth. Deposition of prosecutrix cannot be treated as trustworthy and reliable in respect of her rape by accused Kallu Ram & Dinesh @ Ravi nor prosecutrix made allegations against them for disrobing her.
31. Second limb of allegations against all accused persons are that they gave beatings to prosecutrix on 21.09.2016.
Prosecutrix deposed that on 20.09.2016 at about 3 pm, her brother (PW3) came at her matrimonial house. Her mother-in-law Santosh and other family members pushed him out of house and her husband & Dinesh assaulted her with a knife and then she became unconscious. Thereafter, her brother called at 100. During her cross-examination prosecutrix deposed that only her husband was having knife and sustained injuries by knife.
Judgment 19 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
32. Going by testimony of prosecutrix it is evident that prosecutrix has only named her husband accused Sanjay and brother-in-law Dinesh as the persons who assaulted her. Though prosecutrix alleged that her husband was having knife and he assaulted by knife but in medical examination of prosecutrix vide MLC Ex PW1/B it is not mentioned that she sustained knife injury. History of incident as noted by Doctor also does not mention that prosecutrix mentioned about any injury inflicted on her by knife. Sequence of events suggests that family of accused persons were unhappy over the visit of brother of prosecutrix which resulted into quarrel between them. There is enough doubt as to nature of injuries sustained by prosecutrix, manner in which she sustained injury or the person by whom injury was caused.
33. From above stated discussions it emerges that :
i) Testimony of prosecutrix is inconsistent with her previous statements and is not found trustworthy.
Judgment 20 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
ii) Prosecutrix had every opportunity to make a complaint to police on the date of incident itself but she did not do so nor did she escaped from alleged place of incident after first incident of sexual assault.
iii) Brother of prosecutrix neither visited prosecutrix nor lodged complaint with police even after coming to know about incident.
iv) Even though brother of prosecutrix did call police on 20.09.2016 but on that date as well no complaint regarding sexual assault was made.
v) Evidence on record indicates disharmony in relation of prosecutrix with her in-laws and hence, their false implication cannot be ruled out.
vi) There is no medical or forensic evidence to suggest sexual assault on prosecutrix.
34. Conclusion: In the light of above discussions, it is held that prosecution has failed to bring on record clear, cogent and consistent evidence against accused persons. Hence, by giving benefit of doubt, they are acquitted of the offence they are charged with. Bail bond stands canceled. Their surety stands discharged.
Judgment 21 of 22 SC No: 300/17 State Vs. Kallu Ram & Ors
Accused persons are directed to furnish a personal & surety bond in sum of Rs. 10,000/- each under Section 437-A Cr.P.C which shall remain in force for period of six months. File be consigned to record room after due compliance. Announced in the open court on 12th day of April 2018.
Digitally
signed by
GAUTAM GAUTAM MANAN
GAUTAM MANAN
MANAN Date:
2018.04.17
Addl. Sessions Judge (SFTC)
14:55:36
+0530 South-West, Dwarka Courts, Delhi
Judgment 22 of 22