Delhi District Court
State vs . Ashok Etc. Sc No. 57327/16; Fir No. ... on 22 January, 2020
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No. : 57327/16
State
Versus
1). Ashok
S/o Sh. Nem Singh
R/o B2, Shop No. 3, Safdarjang
Enclave, Ambedkar Market,
Delhi.
2). Sunder Singh
S/o Sh. Rajender Singh
R/o E368, MCD Colony,
Azadpur, Delhi.
FIR No. : 462/14
Police Station : Adarsh Nagar
Under Sections : 376D/506/328/420 IPC
Date of Committal to Sessions Court : 20.10.2014
Date on which Judgment reserved : 16.01.2020
Date on which Judgment announced : 22.01.2020
Present: Shri V.K. Negi, ld. Addl. PP for State.
Sh. Lokendrsa Mani, ld. counsel for accused Ashok.
Ms. Sonia Garg, ld. counsel for accused Sunder Singh.
State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 1 of 22
JUDGMENT
1. Both accused persons have been forwarded to face gang rape trial.
2. Victim went to the police station on 09.07.2014 and made statement to the effect that she used to reside with her two sons and was employed in a steel factory in Wazirpur. She had gone to Dilkhush Building, Lal Bagh 67 months prior to giving of complaint, for preparation of her Aadhar card where the guard namely Ashok helped her due to which he started visiting her house. One day, Sonu and accused Sunder came to her house with accused Ashok and took her to a hotel in Old Delhi on the pretext of arranging a job for her and served her tea laced with some stupefying substance due to which she became unconscious. She was not allowed to go home by them when she got consciousness after 45 hours. She was raped in the hotel by Sonu and accused Ashok and was left at home by Ashok next day. 1015 days after the sale of her house, Sonu and accused Ashok came to her and assured that they would get purchased land for her if she gave them Rs. 3 lacs. On that assurance, she gave that amount to accused Ashok. Three days thereafter, Ashok's wife came to her house with accused Sunder Singh armed with a knife and was about to beat her saying why she was residing with her husband, but she was saved. Whenever she demanded back money from Ashok, he used to say that he had already given earnest money for a house for her to a State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 2 of 22 relative of Sonu. When she enquired about it from Sonu, his answer was in negative. Despite asking several times, Ashok did not return her money.
3. On 31.08.2015, charge under Section 328/342/376D/34 IPC and 376D IPC was framed against accused Ashok and Sunder Singh. Separate charge under section 376/506 and 420/34 IPC was framed against accused Ashok. Separate charge under section 376D IPC and 506/34 IPC was framed against accused Ashok and Sunder Singh. Both accused pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined ten witnesses.
5. As PW5, the prosecutrix deposed that she went to Dilkhush Building, Lal Bagh about one month prior to lodging of the report for aadhar card for which she was helped by accused Ashok and Sunder Singh who used to work as security guard and cleaner there. Due to that reason, both started visiting her house frequently and they showed a jhuggi in Lal Bagh to her assuring that they would get the same for her. In order to arrange money, she alongwith both accused went to her village Ramkola, District Gorakhpur, U.P. to sell her one gattha land. The land was sold to her cousin Sheshnath in Rs. 3 lacs and the sale proceeds were received by both accused persons on the pretext that they would get transferred the ownership documents of the jhuggi in her name. The accused persons did not buy jhuggi for State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 3 of 22 her and when she demanded money back from them, accused Ashok and his wife quarreled with her for which she lodged complaint Ex.PW5/A. She next stated that her statement Ex.PW5/B was recorded by Ld. MM.
6. PW7 W/ASI Rajesh got the prosecutrix medically examined in BJRM Hospital on 19.07.2014 and after examination, the doctor handed her over victim's MLC and sexual assault evidence collection kit in sealed condition and sample seal which were seized vide seizure memo Ex.PW7/A. She deposed that accused Ashok was arrested in her presence in police station itself vide arrest memo Ex.PW5/C. PW1 Dr. Shaban Ahmad, medically examined the victim initially on 09.07.2014, found no external fresh injury on her body, prepared MLC Ex.PW1/A and referred her to S.R. Gynae fro further examination.
PW8 HC Naveen deposed that he alongwith SI Renu went towards Azadpur Flyover on 09.07.2014 in the search of accused persons. A person was apprehended at the instance of a secret informer near Azadpur Bus Terminal who disclosed his identity as accused Ashok and after identification by the victim, he was arrested vide arrest and personal search memos Ex.PW5/C and Ex.PW8/A respectively.
7. PW3 ASI Ram Avtar registered case FIR on 09.07.2014 State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 4 of 22 at 4.50 pm when SI Renu handed him over rukka.
PW6 Ld. MM Ms. Rajni Ranga recorded statement Ex.PW5/B of the prosecutrix in Rohini Court on 10.07.2014.
8. PW9 HC Babu Lal got conducted medical examination and potency test of accused Ashok in BJRM Hospital on 09.07.2014 and 10.07.2014 respectively. He deposed that he alongwith SI Renu went to the house of victim on 06.08.2014, took prosecutrix with them and moved further in the search of accused Sunder. There was a secret information that Sunder would come at Azadpur Bus Terminal. Accordingly, they reached there and thereafter, complainant pointed out towards a person who was apprehended and after interrogation, he was arrested vide arrest and personal search memos Ex.PW5/D and Ex.PW9/A respectively. He got conducted his potency test next day i.e. 07.08.2014 in BJRM Hospital.
PW4 Dr. Gopal Krishna identified signatures and handwriting of Dr. Prem Singh Bishnoi, Dr. Mohit Tiwari, Dr. Sarit Kumar, Dr. Sajjad and Dr. Vaibhav Gulati who have left the service of the hospital and their recent whereabouts are not known but he was acquainted with their handwriting and signatures as he had seen them doing so in the ordinary course of business. He deposed that MLC Ex.PW4/A of accused Ashok was prepared by Dr. Sarit Kumar in the supervision of Dr. Mohit Tiwari. He had no external injury on his body. He next deposed that MLC Ex.PW4/B of accused Ashok State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 5 of 22 Kumar was prepared by Dr. Prem Singh Bishnoi on 10.07.2014. Sunder Singh was brought in the hospital by Ct. Babu Lal. He had no fresh injury on his body and he was referred to forensic expert for potency test by Dr. Vaibhav Gulati by preparing MLC Ex.PW4/C. Dr. Sajjad had prepared MLC Ex.PW4/D of accused Sunder Singh.
PW2 HC Banwari Lal was working was MHC(M) on 09.07.2014 when SI Sanjay deposited with him sexual assault evidence collection kit in sealed condition and sample seal for which he made entry no. 3535 Ex.PW2/A in register no. 19. On 10.07.2014, SI Renu deposited in malkhana, a sealed parcel containing blood sample of the accused and the sample seal for which he made entry no. 3536 in register no. 19. On 10.07.2014, he handed over both sealed pullandas and both sample seals to Ct. Vikas vide R.C. No. 63/21/14 Ex.PW2/C for depositing in FSL and after deposit, Ct. Vikas handed him over receipt acknowledgment Ex.PW2/D.
9. PW10 IO SI Renu deposed that after recording statement Ex.PW5/A of the complainant in police station on 09.07.2014, she got the case FIR registered after preparing rukka Ex.PW10/A. Victim was sent for medical examination with WHC Rajesh and she alongwith Ct. Naveen left in the search of accused persons and reached Azadpur Bus Terminal where an informer told them that accused Ashok would arrive there after sometime. After sometime, a person was pointed out by secret informer consequent to which he State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 6 of 22 was apprehended and after interrogation, he was arrested. He was got medically examined by Ct. Babu Lal, who after returning to police station, handed her over accused's MLC. In the meantime, WHC Rajesh alongwith victim also reached the police station and the victim identified accused Ashok. HC Rajesh handed her over victim's MLC and exhibits which she seized vide seizure memo Ex.PW7/A. His potency test was got conducted by HC Babu Lal on 10.07.2014, who handed over his blood sample in sealed condition which she seized vide seizure memo Ex.PW10/C. She next deposed that the exhibits were sent to FSL through Ct. Vikas on 10.07.2014. She alongwith Ct. Babu Lal left police station in the search of accused Sunder on 06.08.2014 and reached to the house of victim. She was taken with them and they reached Azadpur Metro Station where a secret informer told that Sunder would reach at Azadpur Bus Terminal after sometime. A person came to the terminal after sometime and he was identified by victim as accused Sunder Singh consequent to which he was arrested and got medically examined through Ct. Babu Lal on the same day and his potency test was got conducted on 07.08.2014. She next deposed that she verified the sale of the property of victim to Shesh Nath and found that fact true. In that regard, she had recorded statement of one Shesh Nath and seized property papers from prosecutrix vide memo Ex.PW10/C. She next deposed about the statement of the prosecutrix U/s 164 Cr.P.C.
State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 7 of 22
10. On 26.04.2018, accused Ashok Kumar and Sunder admitted following statements/documents U/s 294 Cr.P.C.: S. Name of the documents Admitted Denied Exhibited No.
1. Proceedings u/s 164 Cr.P.C. Yes - Ex.PX1 conducted by Ms. Rajni Ranga, Ld. MM on 10.07.2014
2. The potency test of accused Yes Ex.PX3 Ashok Kumar conducted by Dr. Bhim Singh
3. The potency test of accused Yes Ex.PX2 Sunder Singh conducted by Dr. Bhim Singh On 10.10.2019, accused Ashok Kumar and Sunder admitted following statements/documents U/s 294 Cr.P.C.: S. Name of the documents Admitted Denied Exhibited No.
1. Statement u/s 161 Cr.P.C. of Ct. Yes - Ex.PX4 Vikas who had deposited the exhbits in FSL, Rohini on 17.07.2014 On 25.11.2019, accused Ashok Kumar and Sunder Singh admitted following statements/documents U/s 294 Cr.P.C.: S. Name of the documents Admitted Denied Exhibited No. State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 8 of 22
1. FSL result dated 15.05.2017 Yes - Ex.PX5 prepared by Ms. Shashi Bala Pahuja, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi
11. Under section 313 Cr.P.C., both accused took the plea of false implication.
12. Both accused did not examine even a single witness in their defence.
13. Ld. defence counsel for accused Ashok Kumar argued that five different versions of the prosecutrix are appearing in the complaint, statement u/s. 164 Cr.P.C., examinationinchief, cross examination by addl. PP and by accused Sunder Singh. She could not tell the date, month and year when she was raped in the hotel or in her house. She did not tell the name of the hotel. There is no medical record to the effect that victim was given some stupefying substance in tea in the hotel. In examinationinchief she did not depose that she was raped by any of the accused persons. But she deposed so in answer to leading questions of addl. PP. Due to that reason, her evidence is not of sterling quality and cannot be relied upon without corroboration. But no corroboration is coming from any quarter. Even the FSL report is also exonerating the accused. The IO did not collect any document to show that the victim had sold her land in village Ramkola. The prosecution did not examine victim's cousin brother State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 9 of 22 Shesh Nath Singh to prove that she had sold land to him in Rs.3 lakhs. The IO did not make inquiry from the family members of the victim in village Ramkola. Last argument is that there is a delay of 67 months in reporting the case to the police.
Additional arguments of ld. counsel for accused Sunder Singh are that Sunder was not named by the prosecutrix as rapist in complaint and statement u/s. 164 Cr.P.C. In MLC Ex.PW1/A, it is mentioned that the victim was sexually assaulted multiple times by a male. No name of any accused person is mentioned there. Moreover, she turned hostile against him in crossexamination.
14. Following five different versions of the prosecutrix are appearing in her complaint, statement u/s. 164 Cr.P.C., examination inchief, crossexamination by addl. PP and crossexamination by accused Sunder Singh.
A. COMPLAINT.
When she visited Dilkhush building, Lal Bagh, 67 months prior to reporting the matter to the police, guard Ashok helped her in preparation of Aadhaar Card and both became friends and he started visiting her house. He, Sonu and accused Sunder Singh took her to a hotel in Old Delhi in the name of employment, served tea laced with some substance after consuming of which she became unconscious and was raped by Sonu and accused Ashok. 1015 days after the sale of her house, Sonu and Ashok came to her house and State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 10 of 22 promised that they would arrange land for her if she paid them Rs.3 lakhs. She gave Ashok Rs.3 lakhs and three days thereafter, his wife alongwith Sundar came to her house armed with knife and asked why she was residing with her husband. Ashok did not return money despite asking several times.
B. STATEMENT U/S. 164 Cr.P.C.
Accused Ashok, who used to work as chowkidar in Dilkhush building, Lal Bagh, had helped in preparation of her Aadhaar Card. He became on visiting terms with her. One day, he came to her house and established physical relation with her forcibly. Then he promised her marriage saying that he and she did not have anybody to take their care and hence, would marry each other. When she asked him why he had raped her, he threatened to kill her children. After some days, he again came to her house in the company of two persons and his both friends raped her. He again came to her house after some days and promised to marry her saying that he can marry her only if she sold her land situated in the village. He obtained papers of her land by threat and sold the same and when she asked him to give back the sale proceeds, he replied that he would neither marry her nor return the sale proceeds.
C. EXAMINATIONINCHIEF.
One month prior to lodging of the report, accused Ashok and Sunder, who used to work as security guard and cleaner State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 11 of 22 respectively in Dilkhush Building, Lal Bagh, had helped her in preparing Aadhaar card. Both started visiting her house frequently and showed her jhuggi in Lal Bagh and assured that same would be arranged for her. So, she alongwith them went to her village Ramkola, Gorakhpur, U.P. and sold her one gatha land to her cousin Shesh Nath Singh in Rs.3 lakhs which were received by both accused persons on the pretext that the ownership of the jhuggi would be transferred in her name. She further deposed that the Sonu was also associate of Ashok but he did not visit her house but he had accompanied her to village Ramkola for selling her land. While returning from Ramkola, they had stayed in a hotel on the way.
D. CROSSEXAMINATION BY ADDL. PP.
It is correct that Sonu, Ashok and Sunder came to my house took me to a hotel situated in Old Delhi in the name of employment and served tea laced with stupefying substance after consuming of which, I became unconscious and was raped by accused Ashok and Sunder. It is correct that Ashok and Sonu came to my house and assured to arrange a piece of land if I gave them Rs.3 lakhs, consequent to which the amount was given to Ashok. It is correct that I owned a house in Ramkola, Gorakhpur, which was sold in Rs.3 lakhs and the amount was given to Ashok. It is correct that accused Ashok came to my house one day and established physical relations on the pretext of marriage. On another occasion, he again came to my State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 12 of 22 house with two persons and committed galatkaam. One of the person accompanying them was Ashok. In crossexamination dated 08.09.2016 by addl. PP she deposed that Ashok and Sonu had raped her. She volunteered that accused Sunder was not present at the time of the incident.
E. CROSSEXAMINATION BY ACCUSED SUNDER.
It is correct that accused Sunder did not come to my house before and after his visit in the company of wife of accused Ashok. It is correct that Sunder never came to my house with Ashok. It is correct that police did not record my statement on 01.10.2014 and 02.10.2014. It is correct that Sunder never accompanied Ashok anywhere. It is correct that Sunder never talked about sale and purchase of any land and jhuggi with her. I saw Sunder in the court second time and the first time, he was seen in my house when he came there with the wife of accused Ashok Kumar. It is correct that I mentioned the name of Sunder at the instance of police officials. It is correct that police obtained my thumb impression on blank and printed papers. It is correct that I did not mention name of Sunder in complaint Ex.PW5/A. It is correct that Sunder never left me in the company of accused Ashok. It is correct that he did not threaten to kill me and my children. It is correct that he never administered intoxicating substance in tea and he did not confine me in any room.
State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 13 of 22
15. Uncorroborated testimony of prosecutrix cannot be accepted, if it suffers from infirmities and inconsistencies. Following was held by Hon'ble Apex Court in Sadashiv Ramrao Hadbe Vs. Sate of Maharashtra and Anr. (2006) 10 SCC 92 :
9. "It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
The Hon'ble Supreme Court reiterated that paramount consideration is to be given to the evidence of the victim. Despite it, the case is to be proved beyond reasonable doubt by the prosecution. It was held in Abbas Ahmad Choudhary Vs. State of Assam (2010) 12 SCC 115 : "11. We are conscious of the fact that in a matter of rape the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 14 of 22 rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
The Hon'ble Apex Court propounded as under in Krishan Kumar Malik Vs. State of Haryana AIR (2011) 7 SC 2877 : "20. Admittedly, she had travelled certain distance in the Maruti Van after her alleged abduction but she did not raise any alarm for help. This shows her conduct and behaviour during the whole process and render her evidence shaky and untrustworthy."
"21. The statement of the prosecutrix that in all 11 persons were there in the Maruti Van renders it further doubtful as it would be extremely difficult for 11 persons to be accommodated in the Maruti Van, the seating capacity of which is only 5."
The accused can be convicted on the sole testimony of a victim if it is of sterling quality. In Rai Sandeep @ Deepu Vs. State, (2012) 8 SCC 21 , the Hon'ble Supreme Court defined the sterling quality of evidence as under: "15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 15 of 22 test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 16 of 22 can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
16. In Santosh Vs. State, Criminal Appeal No.111/17, decided by Hon'ble High Court of Delhi on 02.08.2017, the prosecutrix had given inconsistent versions in complaint, statement u/s. 164 Cr.P.C. and evidence. She had no visible sign of external injury on her body. She had remained at the place of rape for about half an hour without any resistance. The Hon'ble High Court of Delhi held that version of the victim was not believable and required corroboration which was not there. It was further held that she was a consenting party.
17. In the case in hand, applying the above law and taking into account five different versions of the prosecutrix, it is held that her evidence is not sterling quality and it requires corroboration.
18. The prosecutrix could not corroborate her version because she could not tell the date, month and year when she was raped in the hotel and in her house. She could not tell the description/name of the hotel and the place where the hotel was State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 17 of 22 situated. It is pertinent to mention that her case in complaint is that all three accused persons took her to a hotel in Old Delhi, served tea laced with some stupefying substances due to which she became unconscious and was raped by them. But there is no medical document to the effect that she had consumed stupefying tea. She did not tell the name of stupefying substance.
19. Examinationinchief of the victim shows that she nowhere deposed that any of the accused had raped her. She was declared hostile in crossexamination by addl. PP, she told only in reply to leading questions that she was raped by the accused persons. Her failure to depose in examinationinchief that she was raped by the accused persons, is also creating some doubt on the veracity of her evidence.
20. In complaint Ex.PW5/A, the prosecution case is that the victim was raped when she was under the influence of stupefying substance in hotel. But she took uturn in statement Ex.PW5/B and stated that accused Ashok came to her house and established physical relation forcibly and promised to marry her. He again came to her house with two persons and those two persons also raped her. So, as per her statement u/s. 164 Cr.P.C., incident had not taken place in the hotel. As per complaint Ex.PW5/A, the rape incident had taken place only in the hotel. She did not name the associates of accused Ashok in statement Ex.PW5/B who had raped in her house. Her version that State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 18 of 22 accused Ashok had established physical relation with her on the promise of marriage is quite new in statement u/s. 164 Cr.P.C. But she could not substantiate that allegation also because she admitted in crossexamination by accused Sunder Singh that the accused Sunder Singh came her house alongwith the wife of the accused Ashok. It means that she was well aware that Ashok was already a married man. Due to that knowledge, it cannot be said that she gave consent for sex on the promise of accused Ashok that he would marry her. Moreover, the victim admitted in crossexamination that when she alongwith Sonu and accused Ashok visited her village Ramkola to sell her land, she introduced Ashok to her family members as her neighbour. Had there been any promise by Ashok to marry her, he would have been introduced to her family members as her fiance.
21. Regarding cheating, the victim deposed that accused Ashok took Rs.3 lakhs from her in purchasing a jhuggi. He neither purchased the jhuggi nor returned the amount. In that regard, her version in complaint Ex.PW5/A is that 1015 days after sale of her house, Sonu and accused came to her and promised to arrange a land for her if she gave them Rs.3 lakhs. She gave Rs.3 lakhs to Ashok. She did not describe in detail in complaint about the land sold by her from which she had got Rs.3 lakhs as sale amount. In statement u/s. 164 Cr.P.C., her version is that accused Ashok took property papers from her by threat and sold land. But when she appeared in the State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 19 of 22 witness box, she told a different story by deposing that she alongwith accused persons had gone to her village Ramkola to sell her land. In fact, she sold land to her brother Shesh Nath Singh in Rs.3 lakhs and sale amount was retained by the accused Ashok. But the prosecution could not corroborate that version because it did not place on record documents of sale of property. As per prosecution case, the purchaser was Shesh Nath Singh, cousin brother of the prosecutrix, but he has not been examined as witness. The IO admitted in crossexamination that she did not collect from victim the documents like sale deed, khatakhatauni, transfer of property papers and receipt of payment. She further admitted that she did not visit village Ramkola and did not make inquiry from other relatives of the complainant.
22. The prosecutrix was medically examined by gynecologist after 67 months of the incident and so, it was not expected that any rape traces would be revealed by such medical examination or sample collection. As per FSL result Ex.PX5, semen was not detected on the exhibits of the victim and hence, blood of accused was not subjected to DNA finger printing analysis. So, the FSL result is also exonerating the accused.
23. Though, in rape cases, the delay is not material but where the testimony of the victim and other public witnesses, is of wavering nature, the same becomes relevant.
State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 20 of 22 In Bhaiyamiyan @ Jardar Khan & Anr. v. State of Madhya Pradesh AIR 2011 SUPREME COURT 2218 Hon'ble Supreme Court held that there was a delay of 10 hours in lodging the FIR. Offered explanation was that when the victim went to the police station which was about 7 kms. away from the place of incident, no police official was present and hence, she had to go to another police station about 22 kms. The Hon'ble Supreme Court did not believe the explanation and taking into account other circumstances acquitted the accused.
In Surjan & Others v. State of M.P. (2002) 10 Supreme Court Cases 214 it was held that the delay of ten days in lodging the complaint was not attempted to be explained. The Hon'ble Apex Court held that it cannot afford to act to uncorroborated testimony of the prosecutrix unless the said evidence was wholly reliable.
The Hon'ble Apex Court held in State of Andhra Pradesh v. Jalapathi Subbarayudu and Ors. JT 2002 (3) SC 484 held that it was no doubt true that delay in itself was not fatal in rape cases but that will depend upon other facts and circumstances of the case.
In Rajesh Patel v. State of Jharkhand (2013) 3 SCC 791 held that there was a delay of nearly 11 days in lodging the FIR and one of the explanation of delay was the threat advanced by the State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 21 of 22 accused to the victim that if she lodged any complaint she would be killed. The Apex Court held that explanation was not tenable one.
24. In the case in hand, version of the prosecutrix in complaint and statement u/s. 164 Cr.P.C., is that she was raped by the accused persons about 67 months prior to the date of reporting the matter to the police. She contradicted herself by deposing in examinationinchief that the rape had taken place one month prior to reporting the matter to the police. She has no explanation why she did not report the matter earlier to the police. Due to her inconsistent and infirm testimony and nonexplanation of delay of 67 months, it can be said that delay is inordinate one.
25. In view of above discussion, it is held that prosecution has failed to prove the case against accused persons beyond reasonable doubt. Hence, they are acquitted of the offence he was charged with.
26. The personal and surety bonds of accused is hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to him.
File be consigned to record room.
Digitally signed by UMED UMED SINGH
SINGH GREWAL
Date: 2020.01.22
GREWAL 16:39:55 +0530
Announced in the open Court (Umed Singh Grewal)
on this 22nd January, 2020 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
State Vs. Ashok etc. SC No. 57327/16; FIR No. 462/14, PS Adarsh Nagar page 22 of 22