Delhi District Court
State vs Mohd. Sanaullah. -:: Page 1 Of 69 ::- on 22 November, 2013
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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 : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
State
Versus
Mr. Mohd. Sanaullah
Son of late Mr.Seikh Isrial,
Resident of G 1/341, Dall Mill Road, Uttam Nagar, Delhi.
First Information Report Number : 267/11
Police Station Khayala,
Under sections 376,328, 384, 506, 420 of the Indian Penal Code.
Date of filing of the charge sheet before : 19.04.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 26.04.2012.
in the Sessions Court
Date of transfer of the file to this Court : 07.02.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 22.11.2013.
Date of judgment : 22.11.2013.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr.A.U.Khan and Mr.Vikas
Padora.
Ms.Shubra Mehnidiratta, counsel for the Delhi Commission for
Women.
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Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala,
Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code.
State versus Mohd. Sanaullah. -:: Page 1 of 69 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self- sacrificing, has she not greater powers of endurance, has she not greater courage? 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. This is a case in which a tantric (godman) has allegedly raped the prosecutrix several times on the pretext of giving a solution (totka) of her problems and has cheated her into giving her property in the name of his wife besides the other offences which he has allegedly committed.
2. 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 becomes inhuman and barbaric when the victim, who reposes trust in the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult on the pretext of finding a solution to her problems.
Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 2 of 69 ::-
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3. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr.Mohd Sanaullah, the accused, has been charge sheeted by Police Station Khayala, Delhi for the offence under sections 376/328/384/506/420 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 24.03.2011 at C-199, Khayala, New Delhi, he administered to prosecutrix (name withheld to protect her identity) certain stupefying material mixed in a drink with the intention to commit the offence of rape upon her; on 24.03.2011 and thereafter continuously for six months at C-199, Khayala, New Delhi, accused repeatedly committed rape upon the prosecutrix; between the period of 24.03.2011 and 31.10.2011, accused Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 3 of 69 ::-
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intentionally put prosecutrix in fear of ruining her life by showing her nude photographs to the public and thereby dishonestly induced her to transfer the property situated at G-1/341, Dal Mill Road, Uttam Nagar in the name of his wife and also induced her to deliver a cash of Rs. 12,00,000 (Twelve Lacs) to him; on 23.03.2011 at C-199, Khayala, New Delhi, accused being a tantrik cheated prosecutrix and induced her to deliver a cash of Rs.12,00,000(Twelve Lacs) promising to take care of her problems; and on 31.10.2011 in the morning at C0199, Khyala, New Delhi, the accused threatened to kill the prosecutrix if she did not maintain physical relationship with him.
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 19.04.2012 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 26.04.2012 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 07.02.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
6. After hearing arguments, charge for offence under sections 328, 376, 384, 420 and 506 of the IPC was framed against the accused by the learned predecessor vide order dated 03.07.2012 to which he pleaded not guilty and claimed trial.
Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 4 of 69 ::-
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CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
7. The prosecution story unveils with the prosecutrix (PW3), her husband Mr. Praveen Kumar Batra (PW9) and her brother Mr.Subhash (PW8) going to the Police Station Khyala with written complaint (Ex.PW3/B) on which IO SI Bimla Devi (PW10) had made endorsement (Ex.PW10/A) and handed over to the Duty officer ASI Bal Krishan (PW5) who made an endorsement (Ex.PW5/A) and lodged the FIR (Ex.PW5/B). He also issued the certificate under section 65 B of the Evidence Act (Ex.PW5/C) and recorded Kyami DD (Ex.PW5/D). Thereafter. The IO took the prosecutrix to Guru Govind Singh Hospital for her medical examination where she was medically examined by Dr. Shweta (PW1) vide MLC (Ex.PW1/A) and Dr. Adarsh (PW2) vide MLC report (Ex.PW2/A). The clothes and samples pertaining to the prosecutrix were handed over by the doctor to IO and was seized by the IO SI Bimla vide seizure memo (Ex.PW10/B). The IO along with Ct.Tilak Raj (PW11) and the prosecutrix went to C-199, Khayala i.e. the place of occurrence and at her instance prepared the site plan (Ex.PW3/D). Thereafter, on the same day, the accused was arrested from House No.G-1/341, Dali Mill Road, Uttam Nagar, Delhi on the pointing out of the complainant vide arrest memo (Ex.PW3/C) and his personal search was conducted vide personal search memo (Ex.PW10/C). Disclosure statement (Ex.PW10/D) of accused was also recorded. The accused had handed over the photocopy of sale deed (Ex.PW3/A) of property No.G-1/341 Dal Mill Road, Uttam Nagar, New Delhi executed by complainant in favour of his wife. Mr.Ravinder Singh (PW4) produced the Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 5 of 69 ::-
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sale deed of property No.G-1/341, Second Floor without roof rights, area 60 square yards, Khasra No.76/20/1, Uttam Nagar, New Delhi executed by seller (the prosecutrix) in favour of Ms.Sarmila Khatoon for an amount of Rs. 6,85,000/- (Ex.PW4/A) which was registered in the office of the Sub- Registrar-II, Janakpuri vide registration number 15770 in Book No.1, Volume No.18847, pages 150-156 dated 30.06.2011. Accused was taken to Guru Govind Singh hospital where he was medically examined by Dr. Adarsh (PW2) vide MLC (Ex.PW2/B). After medical examination doctor did not collect any exhibit pertaining to him. Thereafter, the accused was again produced for medical examination at DDU Hospital for Potency Test, where he was medically examined. On 01.11.2011, IO SI Bimla Devi deposited one sealed pullanda and one sample seal with the seal of GGSG Hospital in the malkhana with HC Mast Ram MHC (M) (PW6) vide entry No.998 in register No.19 (Ex.PW6/A). On 30.11.2011, the MHCM sent one sealed pullandas and one sample seal to Ct. Rajender Singh (PW12) to the FSL vide RC No. 149/21/11 in register No.21 (Ex.PW6/B) and after deposit of the same he handed over the acknowledgment (Ex.PW6/C). The exhibits of this case were examined by Ms. Poonam Sharma (PW7) in the FSL vide her reports (Ex.PW7/A and Ex.PW7/B).
8. On 21.05.2013, before the Court, the counsel for the accused made a statement that the MLC of the accused prepared by Dr.Sajid Hassan may be exhibited and read against you as the evidence of Dr.Sajid Hassan and the MLC are admitted and then Ex.PX3 was put on the MLC.
Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 6 of 69 ::-
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9. On 21.05.2013, before the Court, the counsel for the accused made a statement that the FSL reports prepared by Ms.Sunita Gupta who had examined the exhibits may be exhibited and read against you as the evidence of Ms.Sunita Gupta and the FSL Reports are admitted and then Ex.PX1 and Ex.PX2 were put on the FSL reports.
10. As per the allegations of the prosecution, accused Mr. Mohd Sanaullah, on 24.03.2011 at C-199, Khyala, New Delhi, administered to the prosecutrix (PW3) certain stupefying material mixed in a drink with the intention to commit the offence of rape upon her. On 24.03.2011 and thereafter continuously for six months at C-199, Khyala, New Delhi, he repeatedly committed rape upon the prosecutrix. Between the period of 24.03.2011 and 31.10.2011, he intentionally put the prosecutrix in fear of ruining her life by showing her nude photographs to the public and thereby dishonestly induced the prosecutrix to transfer her property situated at G-1/341, Dal Mill Road, Uttam Nagar in the name of his wife and also induced her to deliver cash of Rs.12,00,000/-. On 23.03.2011 at C-199 Khayala, New Delhi, the accused being a tantrik cheated the prosecutrix and induced her to deliver a cash of Rs.5000/- and also induced her to transfer her property in the name of his wife and cash of Rs.12,00,000/- on the pretext of improving business of her husband and promising to take care of her ailment. On 31.10.2011 in the morning time at C-199 Khyala ,New Delhi, he threatened to kill prosecutrix, if she did not maintain physical relationship with him.
Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 7 of 69 ::-
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PROSECUTION EVIDENCE
11. In order to prove its case, the prosecution has examined as many as 12 witnesses i.e. Dr. Shweta who had medically examined the prosecutrx, as PW1; Dr. Adarsh, who had medically examined the prosecutrix as well as accused, as PW2; the prosecutrix as PW3; Mr.Ravinder Singh, UDC, Sub Registrar as PW4; ASI Bal Krishan, the Duty Officer who had recorded the formal FIR of the case, as PW5; HC Mast Ram, MHC (M), as PW6; Mr. Narender Jain, as PW7; Mr. Subhash Chander Maken, brother of the prosecutrix, as PW8; Mr. Praveen Kumar Batra, husband of the prosecutrix , as PW9; SI Bimla, the investigation officer of the case, as PW10; Ct.Tilak Raj, witness of investigation, as PW11; and Ct. Rajender Singh, who took the case property from Mal Khana and deposited the same to FSL, as PW12.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
12. In his statement under section 313 of the Cr.P.C., recorded on 29.05.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case.
13. He has stated that he did not know prosecutrix prior to the purchase of property G-1/341, Dal MiIl Road, Second Floor, Uttam Nagar, Delhi. On 28.06.2011, he got registered the property G-1/341, Dal MiIl Road, Second Floor, Uttam Nagar, Delhi in the name of his wife and since then, they all were residing there. On 19.10.2011, the prosecutrix with her husband Mr. Praveen Batra, Mr. Karan Batra, Mr. Mohit Batra, Mr. Jatin Batra and Mr. Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 8 of 69 ::-
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Subhash Chand came to his home and asked to return back the above said property or give Rs.5 lacs more. He stated that due to loss in transport business, he had sold the property in lesser amount. They threatened and abused them and had beaten him and his wife. They had also forcibly taken out the property documents from his almirah. Thereafter, he made a call to police on 100 number. PCR officials came and took all of them in PS Uttam Nagar. On enquiry, he told everything to the SHO. However, still despite being innocent, he has been falsely implicated in this case. He has not committed any offence. He preferred to lead defence evidence.
DEFENCE EVIDENCE
14. In his defence, the accused has examined Mr.Harsh as DW1; Mr.Noor Mohd. Ansari as DW2 (he was subsequently dropped vide statement dated 21.08.2013); and Mr.Mohd. Gafar Alam as DW2.
ARGUMENTS
15. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused.
16. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 328, 376, 384, 420 and 506 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable. Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 9 of 69 ::-
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17. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which otherwise is also without the details. The evidence of the prosecutrix is unreliable and unbelievable. There is no medical and forensic evidence against the accused. He has been falsely implicated in this case due to the property dispute as she wanted him to return the sold property or give Rs.5 lacs more.
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 Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
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circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
19. Under this sphere, I now proceed to test the submissions of both the sides.
TESTIMONIES OF THE PROSECUTION WITNESSES
20. It is necessary to discuss and analyse the testimony of the witnesses of the prosecution.
The Most Material Witness-Prosecutrix
21. PW3, the prosecutrix, has deposed that her husband is engaged in the work of transport. Last year (evidence recorded on 22.08.2012), the business of her husband was not going on well and she was also not keeping well. Some one familiar to them suggested to go to some tantrik to have some solution for this. Someone known to them had given the address of one Mohd Sanaullah, who was residing at C-199, Khayala and suggested to them to visit him as he was a Tantrik. On 23.03.2011, she along with her husband had Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 11 of 69 ::-
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visited Mohd. Sanaullah at his residence on the top floor (third floor) having one room. They narrated their problem to accused Mohd. Sanaullah and he said this that he would solve their problem and demanded Rs.5000/- for the same. Her husband confirmed from the accused Mohd. Sanaullah, if they pay Rs.5000/- to him, will it solve their problem on which accused assured her husband that his business will be OK and she will also recover from her ailment. Her husband gave Rs.5000/- to the accused. The accused asked her husband to send his wife (prosecutrix) to him (accused). The next day i.e. 24.03.2011 at about 4.00/4.30pm, she visited the accused alone. The family of the accused resides on the ground floor and accused asked her to come to the third floor as certain Pooja (rituals) ceremony was to be performed. When she reached the room at the third floor, the accused offered her some liquid in a glass asking her to take the same in order to improve her health. She consumed the same and after that he fell unconscious. When she regained consciousness, she did not find any cloth on her body. "MEI APNI HAALAT DEKHKAR RONE CHILANE LAG GAYI KE YE KYA HO GYA, TO YE BOLA KE TERI YE HAALAT MAINE KI HAI, CHIKHNE CHILLANE SE KUCH NAHI HOGA, JO HONA THA WOH HO GAYA, OR AGAR CHIKHI OR CHILLAYI TO MAINE APNE MOBILE MEIN TUMHARI PHOTO KHINCHI HAI, OR SHOR MACHAYA TO MEIN TUMHE BARBAAD KAR DOONGA OR TUMHARI BHALAI CHUP REHNE MEIN HI HAI". Thereafter, the accused showed her nude photographs to her in his mobile phone. She wore her clothes and left for her house. Thereafter, whenever the accused wished, he called her on phone and raped her. She had not narrated the incident to anyone as the accused had clicked her nude photographs in his mobile and she was very much scared. She was having Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
FIR No. 267/2011, Police Station Khayala, Under sections 376, 328, 384, 506 and 420 of the Indian Penal Code. State versus Mohd. Sanaullah. -:: Page 12 of 69 ::-
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three sons so she kept mum. During her visits to the accused, he asked her about her property at G-1/341, Uttam Nagar, Dal Mill Road, whether she wanted to sell the same or not. She told the accused that she would talk to her husband. Thereafter, the accused convinced her stating that " TERI YE JO PROPERTY HAI ISKE UPPAR KUCH TOTKA KARNA PADEGA TO SARI ADCHANE KHATAM HO JAYENGI TO YE PROPERTY BI SELL HO JAYEGI OR JO TERE NAAM HAI WOH TUJHE MERI WIFE KE NAAM KARWANI PADEGI, JAISE HI TOTKA KHATAM HOGA,MEIN YE PROPRTY TERE KO WAPAS KAR DUNGA". On this pretext, the accused had taken Rs.12,00,000/- in toto from her in installments of Rs. One lac, sometimes Rs.50,000/- etc. Thereafter, the accused got her said property transferred in the name of his wife Ms. Sharmila Khatoon. The accused did not give her any money for this property. The certified copy of the sale deed running in to seven pages is Ex.PW3/A. First page of the sale deep which is E-stamp bears her photograph at point X and the photograph of Ms. Sharmila Khatoon, the wife of accused at point Y. Thereafter, 15-20 days of this registry, she asked the accused return her property as she told him that "AB TO TOTKA POORA HO GYA HAI". The accused said " NA TO MEIN TUJHE PROPERY DOONGA OR NA PAISE DOONGA". Till date neither she has been returned her property nor given back her money. With the sale deed neither any DD nor any cheque is annexed/mentioned. Thereafter, she understood that the accused had cheated her ISNE MERI PROPERTY BHI LOOT LI HAI AUR MERI IZZAT BE LOOT LI HAI JO KHABHI WAPAS NHI AA SAKTA. She narrated the incident of sale of property except the incident of rape to her husband who called her eldest brother Mr. Subhash Chand Makan and consulted him. She along with her husband and brother Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
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visited the accused on 19.10.2011. They rang the bell and called the accused downstairs and asked to return the property as well as money. Accused asked them to wait for 4-5 days stating that he would return the property and money but the accused did not respond thereafter and did not return the property as well as money. When accused did not return the property as well as the money, she told to her husband that AGAR MUJHE KUCH HO JATA HAI TO PLEASE BACCHO KA KHAYAAL RAKHNA, MERE HUSBAND NE KHA KE PROPERTY KE KAARAN T ITNI TENSION KYU LETI HAI, JAROOR KUCH OR BAAT HAI, MUJHE BATA. PHIR MAINE APNE HUSBAND KO BATYA KE YE MUJHE BULA BULA KE RAPE BHI KARTA THA". On 31.10.2011, she along with her husband and eldest brother visited the house of the accused and called him downstairs and asked to return the property, money as well as her nude photographs clicked by him. Accused refused to return anything and also stated that MERE PAAS PHOTO HAI TUJHE BAAR BAAR AANA PADEGA JAB BHI BULAUNGA. They returned back and the same day, she lodged the complaint (Ex.PW3/B) in the police station. Accused was arrested vide memo (Ex.PW3/C). She was medically examined in Guru Gobind Singh Hospital. She had shown the place of occurrence to the police and site plan (Ex.PW3/D) was prepared by the police at her instance. During the evidence, the witness had started weeping and stated that 'MADAM IS AADMI KO SAJA JAROOR DENA, ISKI WAJAH SE MERE AADMI NE MUJHE KHARCHA DENA BAND KAR DIYA HAI, MEIN SADAK PAR RAIDY LAGA KAR ROTI BECH RAHI HU,APNE BHOLEPAN MEIN MAARI GYI'. She has been cross examined at length on behalf of the accused.
Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
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Public Witnesses
22. PW7, Mr.Narender Jain, is hostile and has not deposed anything incriminating against the accused.
23. PW8, Mr. Subhash Chander Maken, had deposed that the prosecutrix is his younger sister. On 19.10.2011, it was evening time, he had accompanied his sister and her husband to her property no.G1/341, Dalmil Road, Uttam Nagar, New Delhi. They had told him that one Mohd Sanaullah is residing on their property forcibly. They had gone there to have a talk with Sanaullah to return the property of his sister as per his commitment. The property was taken away by the accused from his sister on the pretext of some solution (Dharmik Totka). Accused was earlier residing at C-199, Khayala. Accused told them that he will return the property of his sister within 5-7 days and thereafter they returned back. His brother in law told him later that the accused had forced his sister to have physical relations with him and had threatened and blackmailed her with the photographs which he had taken. In year 2009, his brother in law had sold out some portion of his ancestral property and he had purchased Flat No. G1/341, Dalmil Road, Uttam Nagar and some other properties in lieu of the said amount. Accused had also taken amount to the tune of lacs of rupees from his sister for getting her solution. Accused did not return the said amount. Police interrogated him during investigation and also recorded his statement to the aforesaid facts.
24. PW9, Mr. Parveen Kumar, husband of the prosecutrix, has deposed that on 23.03.2011, he along with his wife (prosecutrix) had gone to the house of accused Mohd. Sanaullah at C-199, Khayala. Someone had told Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
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him that accused was a Tantrik (Godman) and he could help him since his business was not doing well. He told him to send his wife on 24.03.2011 with Rs.5,000/- and there was no requirement of his coming there. His wife went to the house of the accused on 24.03.2011 and gave him Rs.5,000/-, as demanded by him. He had assured that his business would do well. After about 4-5 months, he along with his wife again went to the house of the accused. On 19.10.2011, they had gone to G-1/341, Dal Mill Road, Uttam Nagar and had called the accused from the second floor by ringing the bell which was installed on the ground floor. They told him that his business was still not doing well despite his taking Rs.5,000/- from them. He told them to wait for two days. On her return, his wife told him that the accused had raped her several times. On 30.10.2011, they called the police and got the accused arrested. As he was hostile, he has been cross examined by Additional Public Prosecutor for the State. He has been cross examined on behalf of the accused.
Medical Witnesses
25. PW1, Dr. Shweta, Medical Officer, had medically examined the prosecutrix and has proved the MLC of prosecutrix (Ex.PW1/A).
26. PW2, Dr. Adarsh, Medical Officer, had medically examined the prosecutrix and has prepared the MLC of prosecutrix (Ex.PW2/A). He also medically examined the accused Mr. Md. Sanaullah and has proved the MLC of the accused (Ex.PW2/B).
Official Witness
27. PW4, Mr. Ravinder Singh, UDC, Sub-Registrar-II, had brought Sessions Case Number : 81 of 2013.
Unique Case ID Number : 02401R0177682012.
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the summoned record i.e. registered documents i.e. sale deed of property no. G-1/341, Second floor without roof rights, area 60 Sq yards, Khasra No. 76/20/1, Uttam Nagar, New Delhi. The said sale deed was registered in the office of Sub Registrar -II, Janakpuri vide registration no.15770 in Book No. 1, Volume No.18847, pages no.150 to 156, dated 30.06.2011. The name of the seller is prosecutrix (name deposed in evidence but withheld here to protect her identity) in favour of Ms. Sarmila Khatoon. The Sale deed was executed of the aforesaid property for an amount of Rs. 6,85,000/-. The certified copy of the sale deed duly attested by Sub Registrar Mr. Kamljeet Singh Talwar is Ex.PW4/A, which runs into 07 pages, upon which he has identified the signatures of Sub Registrar at point A on all pages.
Police Witnesses-Formal
28. PW5, ASI Bal Krishan, duty officer who had recorded the formal FIR (Ex.PW5/B) in the present case, made endorsement on the rukka (Ex.PW5/A) and issued the certificate under section 65 B Evidence Act regarding correctness of contents of FIR (Ex.PW5/C). Prior to registration of FIR, he recorded the Kyami DD regarding recording of FIR (Ex.PW5/D).
29. PW6, HC Mast Ram, is the MHC (M). He has proved the relevant entries in register number 19 and 21 (Ex.PW6/A to Ex.PW6/C) pertaining to the FIR No. 267/2011, PS Khayala regarding the deposit of the case property.
30. PW12, Ct.Rajender has deposed that on 30.11.2011, he took one sealed pulenda and one sample seal of Guru Govind Singh Hospital from Mal Sessions Case Number : 81 of 2013.
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Khana and deposit the same to FSL, Rohini vide RC No.149/21/11. After depositing the same, he handed over the acknowledgment receipt to MHCM.
Police Witnesses-Material
31. PW10, SI Bimla, is the Investigation Officer of the case and has deposed that on 01.11.2011, the investigation of this case was assigned to her. The prosecutri, her husband and her brother had come to the PS with the written complaint on which she made her endorsement (Ex.PW10/A) and took it to the Duty Officer for getting the FIR lodged. After lodging the FIR, she took the prosecutrix to Guru Govind Singh Hospital where she was medically examined and the doctor handed over MLC, clothes and the samples pertaining to the prosecutrix to me which were seized vide seizure memo (Ex-PW10/B). The prosecutrix and Ct. Tilak Raj accompanied her to C-199, Khayala i.e. the place of occurrence and at the instance of the prosecutrix, the site plan (Ex.PW3/D) was prepared. Thereafter, on the same day, he arrested the accused from House No. G-1/341, Dal Mill Road, Utttam Nagar on the pointing out of the complainant vide arrest memo (Ex-PW3/C) and personal search memo (Ex-PW10/C) and recorded his disclosure statement (Ex-PW10/D). Accused also handed over the photocopy of sale deed exhibited by complainant in favour of the wife of the accused (Ex- PW3/A). Thereafter, the accused was taken for his medical examination at Guru Govind Singh Hospital and from where he was got medically examined but the concerned doctor at the said hospital did not collect any exhibit of the accused at the time of his medical examination. Thereafter, accused was again produced for medical examination at DDU hospital for his potency test where he was medically examined. Thereafter, the exhibits of prosecutrix Sessions Case Number : 81 of 2013.
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were sent to FSL Rohini. She recorded statement of witnesses during investigation.
32. PW11, Ct Tilak Raj had deposed that on 01.11.2011, he along with IO went to C-199, JJ Colony, Delhi where they met the prosecutrix and on her instance, IO prepared site plan (Ex.PW3/D). Thereafter, they went along with the prosecutrix to G-1/341 Dal Mill Road, Uttam Nagar and arrested the accused vide arrest memo (Ex.PW3/C). IO also prepared personal search of accused (Ex.PW10/C) and recorded his disclosure statement (Ex.PW10/D). Thereafter, he along with IO took the accused for his medical examination at Guru Govind Singh Hospital and for where he was got medically examined. Thereafter, they all came back to PS and accused put in the lock up. IO recorded his statement at PS.
33. The accused and his counsel have preferred not to cross examine PWs 1, 4, 5, 6, 7 and 12. Their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
TESTIMONIES OF THE DEFENCE WITNESESS
34. It is essential also to elaborate in brief the evidence of the witnesses of the defence.
35. DW1, Mr. Harsh, has deposed that he knows the prosecutrix and her husband as both of them came to his office at Ram Vihar, Uttam Nagar, Om Vihar-I, Delhi on 16.6.2011 to sale their property bearing no. G-1/ 341, Sessions Case Number : 81 of 2013.
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Dalmil Road, Uttam Nagar, Delhi. He is doing work of the property dealer for the last 5-6 years. After that he contacted his several clients and informed regarding the said property for purchase. One of them was Mohd. Sanaullah. After that he had introduced Mohd. Sanaullah to the prosecutrix and it was agreed between them that the prosecutrix would sell her property in the name of the wife of the accused for a sum of Rs. 6,85,000/- and he was to get 1% each of the same amount as the commission from both the sides. The sale deed was executed and registered in the office of Sub-Registrar. The commission was paid to him in cash by both the sides but he did not issue receipt of the same. The accused and his wife had made the payment to the prosecutrix and her husband in his presence and thereafter the possession of the property was also handed over by the prosecutrix to the wife of the accused. Thereafter, both the sides did not meet him for about a month. Later, after one month, the prosecutrix came to him and alleged that he had got the property sold at a lesser price and she wanted Rs. 5 lacs more for the same or the return of the property to her. She also threatened him with dire consequences that in case he did not get Rs. 5 Lacs more paid to her or return of the property and also threatened to get him and Mohd. Sanullah implicated in false case. She has not filed any case against him.
To his knowledge, accused Mr. Mohd. Sanaullah had not committed any offence and has been falsely implicated in this case by the prosecutrix. He has been cross examined at length by the Additional Public Prosecutor.
36. DW2, Mr.Mohd Gafar Alam, has deposed that he is a friend of accused Mohd. Sanaullah. In the year 2011, he did not remember the exact Sessions Case Number : 81 of 2013.
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date and month and on asking of accused Mohd. Sanaullaha, he accompanied him and his wife Sharmila Khatoon to District Centre Janakpuri. There they met the prosecutrix and her two sons namely Karan and Rohit. They were to get registration of a sale deed done in respect of a house near Uttam Nagar owned by the prosecutrix in favour of Mohd. Sanaullaha for consideration of Rs. 6,80,000/-. It was a floor at Dalmil road. As the sons of the prosecutrix had not brought their identity proof, she requested him to become a witness as he was carrying his electoral card. He had become a witness and signed on the relevant documents. The Sub Registrar had inquired from him whether the payment had been payment to which he replied in affirmative. He had met the maternal uncle (mama) of accused Mohd. Sanaullah in District Centre but he did not know his name. One dealer by the name of Mr. Harsh was also present and he had got the same materialized between the prosecutrix and accused. After the registration was done, the prosecutrix and her sons had gone with the accused, his family and him for handing over the possession of the floor to the accused. Mohd. Sanaullah is a tailor by profession in Vishnu Garden, Khyala. He has been cross examined at length by the Additional Public Prosecutor for the State.
IMPORTANT ISSUES
37. The important issues and the points in dispute are being discussed hereinafter.
IDENTITY OF THE ACCUSED
38. There is no dispute regarding the identity of the accused Mr.Mohd. Sanaullah. It is also not in dispute that he was known to the prosecutrix prior Sessions Case Number : 81 of 2013.
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to the lodging of the FIR. He is also named in the FIR. He has been identified in the Court by the prosecutrix (PW3), her husband (PW9), her brother (PW8) as well the police witnesses of investigation.
39. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
40. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident as she has herself stated in her evidence that she is 47 years old. The MLC (Ex.PW1/A and Ex.PW2/A) also shows her age as 48 years.
41. Therefore, it is clear that the prosecutrix was a major on the date of alleged offence.
VIRILITY OF THE ACCUSED
42. The accused has been medically examined by Dr.Sajid Hassan (evidence of Dr.Sajid Hassan and MLC of accused were admitted by him vide statement 21.05.2013) vide MLC (Ex.PX-3).
43. In the MLC of accused (Ex.PX-3), it is opined that "It cannot be said that he cannot perform sexual intercourse." It is also not the defence of the accused is that he is impotent.
44. This report indicates that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape. Sessions Case Number : 81 of 2013.
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MLC OF THE PROSECUTRIX
45. The MLC of the prosecutrix (Ex.PW1/A and Ex.PW2/A) shows that there is no external injury seen. It mentions the history in the Casualty as "sexual assault by known person on 17th Oct'2011 [continuously from March 2011]". In the Gynecology Department, the history is mentioned as "sexual assault by a known person from March 2011 to 17th Oct 2011". The prosecutrix was conscious, co-operative and well oriented. She did not have any injuries. There is a mention of hysterectomy being done 7 years back. There is also a mention of her being diabetic -DM on RX 4-5 yrs (on insulin presently).
46. 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), the probability is that rape is not committed.
47. These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would Sessions Case Number : 81 of 2013.
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have received some injuries, maybe minor.
48. It also reveals on the perusal of the MLC of the prosecutrix that there is a mention of hysterectomy being done 7 years back and of her being diabetic but no such record has not been produced before the Court.
49. Therefore, in such a situation, when the prosecution has not produced nor proved that there was hysterectomy done 7 years back on the prosecutrix and that she is diabetic or on insulin presently, it cannot be said with certainty that the prosecutrix was indeed diabetic or had undergone hysterectomy since no such test was conducted by the doctor when she was examined by the doctor.
50. Even in her evidence, she did not produce any proof of her being a diabetic or undergoing hysterectomy. Although supposedly the same were disclosed by the prosecutrix before PWs 1 and 2 but as the same was not produced by the prosecutrix and the prosecution in evidence despite being a vital piece of evidence to prove her medical condition (it was not even collected during investigation), it cannot be said that she was indeed diabetic or had undergone hysterectomy.
51. There is no medical evidence on the record to show that the prosecutrix was diabetic or had undergone hysterectomy or had been raped.
FORENSIC EVIDENCE Sessions Case Number : 81 of 2013.
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52. The FSL reports (Ex.PX1 and Ex.PX2) prepared by Ms.Sunita Gupta, Senior Scientific Officer (Biology) FSL (accused and his counsel have admitted the evidence of Ms.Sunita Gupta and the FSL reports on 21.05.2013) also do not find mention of any finding against the accused.
53. Human semen was not detected on any of the exhibits. The blood which was detected on exhibit 'A-4a' i.e. one dark brown foul smelling liquid described as 'blood sample kept in a Test tube' was examined using various serological techniques and as the sample was putrified no opinion could be given. Nothing incriminating against the accused was detected from the samples of the prosecutrix.
54. There is nothing incriminating against the accused in the forensic evidence produced by the prosecution.
DELAY IN FIR
55. The contention of the advocate for the accused that there was an unexplained delay in lodging of the FIR which is fatal is now being taken into consideration.
56. It is claimed by the accused that the FIR has been lodged on 01.11.2011 at 21:35 hours while the date of alleged offence of continuous rape is 24.03.2011 till 31.10.2011. The nude photographs with which she was blackmailed were also taken on 24.03.2011. During this period, the accused extorted Rs.12 lacs from the prosecutrix. He cheated her of transferring her flat in the name of hiswife without paying any consideration. On 19.10.2011, Sessions Case Number : 81 of 2013.
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the prosecutrix told about the entire incident to her husband and brother who went with her to the house of the accused and he told them that he would return the flat, the money and the photographs to her in 2-4 days. On 31.10.2011, the accused refused to return anything and threatened to kill the prosecutrix and that she will have to continue to maintain physical relations with him. It has been argued on behalf of the accused that the delay in lodging of the FIR has been not explained by the prosecution which shows the version of the prosecutrix is false.
57. The Additional Public Prosecutor, on the other hand, 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 since the prosecutrix was under the fear of the accused. She was already under his influence since he was giving a solution (totka) to her problems being a tantric. The delay has been logically explained.
58. I find on perusal of the file that the prosecutrix has stated in her complaint (Ex.PW3/B) made on 01.11.2011 that period of continuous rape is 24.03.2011 till 31.10.2011. The nude photographs with which she was blackmailed were also taken on 24.03.2011. During this period, the accused extorted Rs.12 lacs from the prosecutrix. He cheated her of transferring her flat in the name of his wife without paying any consideration. On 19.10.2011, the prosecutrix told about the entire incident to her husband and brother who went with her to the house of the accused and he told them that he would return the flat, the money and the photographs to her in 2-4 days. On 31.10.2011, the accused refused to return anything and threatened to kill the Sessions Case Number : 81 of 2013.
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prosecutrix and that she will have to continue to maintain physical relations with him.
59. In her evidence before the Court, the prosecutrix has deposed that on 24.03.2011, the accused made her consume some intoxicated liquid and then raped her and took her nude photographs in his mobile phone. He continued to rape her. During this period, he made the prosecutrix give him Rs.12 lacs on the pretext of giving a solution (totka) to her problems. He got her property transferred in the name of his wife Ms. Sharmila Khatoon without paying any consideration as a solution (totka). After 15-20 days despite her request, he refused to return her property and money. She then told everything to her husband who called her brother and on 19.10.2011 all of them went to the house of the accused and asked to return the property as well as money. Accused asked them to wait for 4-5 days stating that he would return the property and money but the accused did not respond thereafter and did not return the property as well as money. When accused did not return the property as well as the money, she told to her husband about the rape. On 31.10.2011, she along with her husband and eldest brother visited the house of the accused and called him downstairs and asked to return the property, money as well as her nude photographs clicked by him. Accused refused to return anything and also stated that MERE PAAS PHOTO HAI TUJHE BAAR BAAR AANA PADEGA JAB BHI BULAUNGA. They returned back and the same day, she lodged the complaint (Ex.PW3/B).
60. Here it maybe mentioned that as per the sale deed (Ex.PW3/A and Ex.PW4/A), the transfer of the property was made on 28.06.2011. In her Sessions Case Number : 81 of 2013.
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cross examination, the prosecutrix has mentioned that "I did not tell anyone about 24.03.2011 and the subsequent events for six months." PW7, the husband of the prosecutrix has deposed that "I do not remember the date when my wife told me about the rape by the accused. Vol. it was after 19.10.2011 and it may be after about two days."
61. The FIR has been lodged on 01.11.2011 which is a considerable delay.
62. 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.
63. 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. 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 Sessions Case Number : 81 of 2013.
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follows:
"The unusual circumstances satisfactorily explained the delay in 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.
64. 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.
65. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, 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.
Sessions Case Number : 81 of 2013.
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66. 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 show 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."
67. 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, such type of delay would certainly be regarded as fatal to the prosecution case"
68. 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"
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69. I find on perusal of the record that indeed the criminal action was swung into motion on 01.11.2011 after about ten days of 19.10.2011 and after about eight and a half months of 24.03.2011. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged incident, she was not confined by the accused or under his control. She was also visiting the accused alone. She preferred not to inform the police.
70. The prosecutrix has deposed that after 15-20 days of the sale deed (which is dated 28.06.2011) despite her request, he refused to return her property and money, she then told everything to her husband who called her brother. No reason is furnished y the prosecution why the prosecutrix waited till 01.11.2011 to make the complaint. Further, no explanation is coming forth from the prosecution as to why she did not tell anyone about the rape on 24.03.2011 with whom she may have come in contact after the alleged incident. She was not under the control of the accused between this period and could have easily disclosed about the incident if she wanted to. The prosecution has also not been able to explain as to why after disclosing to her husband about the rape on 19.10.2011 (as deposed by her husband PW9 that on return on 19.10.2011, his wife told him that the accused had raped her several times) or even after 4-5 days (as accused asked her to wait, as deposed by her), the prosecutrix did not immediately lodge the FIR. What was the reason to wait from 19.10.2011 (after telling her husband about the rape) till 01.11.2011 has not been explained at all by the prosecution.
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71. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out as the delay in lodging the FIR has neither been explained nor logically justified.
72. Therefore, it can be said that the FIR was lodged after a considerable delay which is unexplained and is fatal to the prosecution story.
OFFENCE UNDER SECTION 328 OF THE IPC-INTOXICATION
73. Section 328 of the IPC is elaborated herein under as follows:
Causing hurt by means of poison, etc., with intent to commit an offence.-whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
74. The prosecutrix, in her complaint (Ex.PW3/B), has stated that the accused gave her an intoxicated drink on 24.03.2011 and then raped her. He had taken her obscene photographs on his mobile phone. In her evidence before the Court, the prosecutrix, as PW3, has deposed on similar lines.
75. However, no intoxicating or stupefying substance has been recovered from the possession of the accused. Neither any incriminating intoxicant has been recovered from the possession of the accused nor the gastric lavage of the prosecutrix was taken and sent for forensic examination Sessions Case Number : 81 of 2013.
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(since there is a gross delay in lodging of FIR).
76. It may be mentioned here that the hon'ble Delhi High Court in the case reported as Santosh Kumar v. State, 2008 (4) JCC 2919 has observed that no conviction can simply be on the basis of the statement of the witness that he became unconscious because of eating the biscuit or drinking tea offered to him by the accused as there had to be medical evidence to the effect that the victim had become unconscious because of consuming any drug or intoxicating substance etc. mixed with tea or biscuit. No such substance had been recovered from the accused.
77. In the absence of any incriminating substance and evidence, the allegation of the prosecutrix that she was served with a laced drink is not believable as it remains a bald assertion with any substantiation.
OFFENCE UNDER SECTION 376 OF THE IPC-RAPE
78. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the Sessions Case Number : 81 of 2013.
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administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
79. The prosecutrix, in her complaint (Ex.PW3/B) made on 01.11.2011, has stated that the accused had raped her on 24.03.2011 and then continuously for six months. In her evidence before the Court, she has deposed that the accused had raped her on 24.03.2011. Thereafter, whenever the accused wished, he called her on phone and raped her. She has not given the duration in her examination in chief. However, in her cross examination, she has deposed that "After that the accused used to phone me whenever he wanted to and used to call me and I was compelled to go to him due to his threats. In a period of six months, I had gone to him about 15 times whenever he phoned me."
80. Here, it may be mentioned that the prosecution has failed to show by leading any positive evidence that the prosecutrix was indeed in touch or acquaintance with the accused w.e.f. 23.03.2011 (day of alleged first meeting) till next six months. Neither any call detail record of the phones-
mobile and landline of the prosecutrix and the accused have been produced and proved nor there is any other ocular evidence to prove the same.
81. The prosecutrix, in her evidence, has clearly deposed about the phone numbers which were with the accused and her . She has deposed that "Accused used to call from telephone no. 7838158624. It is correct that I Sessions Case Number : 81 of 2013.
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did not furnish this telephone no. of accused in the police complaint(Vol. Police did not ask me about the same.) I did not tell the specific telephone number on which accused used to cal me(Vol. I am having only one telephone no. with me which I have mentioned in my complaint(Ex.PW1/3) and the number is 9971950884 and accused used to call me on this number)." However, no logical reason is furnished by the prosecution as to why the phone numbers were not given to the IO during investigation so as to enable her to collect the call detail records.
82.Further, the prosecutrix, in her evidence has not furnished the dates on which she was allegedly raped. She has deposed that "I did not tell the different dates to police as to when accused had called me and raped me(Vol. I had mentioned in my complaint that for the last six months I was being sexually assaulted)..... In a period of six months, I had gone to him about 15 times whenever he phoned me. I did not tell anyone about 24.03.2011 and the subsequent events for six months."
83. PW9, husband of the prosecutrix, has deposed that on her return on 19.10.2011, his wife told him that the accused had raped her several times.
84. The conduct of prosecutrix does not appear to be natural as when on 24.03.2011 she was allegedly raped, she did not tell about the same to her husband or brother and instead preferred to continue to go to the accused for the next six months. When on 24.03.2011, she was allegedly raped, being a mature woman aged about 47-48 years, she must have under stood the gravity Sessions Case Number : 81 of 2013.
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of the situation as well as the fact that the accused was just a fraud and she would not have allowed the accused to exploit her.
85. If six months is calculated from 24.03.2011, then six months would be till 24.09.2011. There is no reason shown why the prosecutrix would remain silent if the accused was exploiting her for such a long duration of time.
86. Also no reason is shown by the prosecution why the prosecutrix did not tell the police on 19.10.2011 about her rape when the police had arrived and taken both the sides to the Police Station. The prosecutrix has admitted that "I had not told the police on 19.10.2011 that the accused had forcibly established physical relations with me."
87. No reason is shown by the prosecution why the prosecutrix continued to talk to the accused after the first instance of alleged rape. If she had been raped, there was no justification in her talking to him several times. She has admitted in her cross examination that "I had telephoned the accused several times to enquire from him about the solution since my medical problem was not being treated."
88. As already discussed above, there is no medical or forensic evidence to prove that the prosecutrix was actually raped by the accused. Prosecution has failed to prove rape and failed to show any other convincing circumstances evidence through prosecutrix like places of rape, manner of Sessions Case Number : 81 of 2013.
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rape, inner physical attributes of accused person, or any other call details of particular dates to prove the location of both prosecutrix or accused together.
89. Further, the evidence of the prosecutrix appears to be unreliable and unbelievable when she has deposed that even after the alleged incident, she continued to go to the accused and be allegedly raped for next six months. She failed to shout for help or make any attempt to run away when the alleged incident was committed was repeatedly committed. Had she been actually raped, she would have made some effort to save herself by shouting for help, hitting the accused or running away but she did not do anything.
90. The prosecutrix did not call the police even after leaving the house of the accused after the incident when she was not under his control. She did not disclose about the alleged incident to anyone which also makes her version doubtful.
91. It is also surprising to note that the prosecutrix does remember the phone numbers, her own as well as of accused but she did not give the same to IO for collection of incriminating evidence.
92. The prosecutrix has failed to give the name of the accused in her MLC (Ex.PW1/A and Ex.PW2/A) despite knowing his name fully well and only told both the doctors (PWs 1 and 2) that she was raped by a known person. No explanation is given by the prosecution as to why the prosecutrix deliberately withheld the name of the accused.
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93. In her examination in chief, the prosecutrix has deposed that she had gone to the third floor on 24.03.2011 when she was intoxicated and raped. In her cross examination, she has deposed that "I cannot tell the number of rooms in premises where accused used to live. There were four floors, ground, first, second and third. Vol I know that there was only one room at third floor." However, subsequently, she deposed that "We had gone to the top floor from where the accused used to operate. I did not make any enquiries from the neighbours as to who reside in the house." The evidence of PW3 is in contradiction to the evidence of PW9 who has deposed in his cross examination that "I met the accused on the fourth floor. The other floors were occupied by the residents." The prosecutrix has not been able to tell the floor number clearly as if she had gone to the third floor, then it was not the top floor since there was also as a fourth floor. If the prosecutrix had actually been continuously raped for six months, she could have atleast told the number of floor correctly where the offence was allegedly committed.
94. Here it may be mentioned that the prosecutrix, in her cross examination, has deposed that "The police did not take me to the spot to prepare the site plan." which falsifies the prosecution version that the site plan (Ex.PW3/D) was prepared at the instance of the prosecutrix.
95. Even the clothes of the prosecutrix which she was wearing at the time when she was raped were neither seized by the doctor nor the IO nor sent for any forensic examination which also indicates that the rape may never have been committed, as alleged.
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96. The prosecution has failed to furnish any explanation in respect of the discrepancies and improvements 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 that the present rape case was lodged probably for some extraneous reasons.
97. It can be seen from the evidence of the prosecutrix that the allegations leveled by her of rape by the accused are false and unbelievable. It appears that she has not been raped by the accused. It also cannot be ignored that the husband of the prosecutrix (PW9) and Mr.Narender Jain (PW7) were hostile to the prosecution case and had to be cross examined by the Additional Public Prosecutor to elicit certain facts which also throw a doubt on their version.
98. 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 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 Sessions Case Number : 81 of 2013.
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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."
99. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
100. Consequently, no inference can be drawn that the accused is guilty of the charged offence of rape as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
101. 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 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. Sessions Case Number : 81 of 2013.
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(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).
102. 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).
103. 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.
104. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness.
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105. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (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).
106. Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 376 of the IPC 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 the prosecutrix was raped by the accused.
107. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is Sessions Case Number : 81 of 2013.
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favorable to the accused should be adopted......"
108. This brings me to the final question as to whether it was she was raped and threatened by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been raped by the accused but there are several contradictions, inconsistencies and discrepancies in her statements which remain unexplained and indicate that no such offence was ever committed by the accused.
109. 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.
110. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses 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.
111. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not Sessions Case Number : 81 of 2013.
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supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
112. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of rape and the accused merits to be acquitted for the offence under section 376 of the IPC.
OFFENCE UNDER SECTION 384 OF THE IPC-EXTORTION
113. Sections 383 of the IPC defines extortion as follows:
Extortion.-- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits" extortion".
114. Section 384 of the IPC provides for punishment for extortion. It reads as follows:
Punishment for extortion-Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
115. The prosecutrix, in her complaint (Ex.PW3/B) has stated that the accused put fear of ruining her life by showing her nude photographs to public and dishonestly induced her to transfer her property situated at G-1/341, Dal Mill Road, Uttam Nagar in the name of his wife and also induced her to deliver a cash of Rs.12 lacs. In her evidence, she has deposed on similar lines.
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116. Here, it may be mentioned that neither the mobile phone of the accused with which the nude photographs of the prosecutrix were taken nor any other camera nor any such photographs nor negatives of such photographs were recovered from the possession of the accused or at his instance. Prosecution has failed to prove existence of such pictures as neither pictures are recovered nor any Camera nor any mobile phone with camera, and neither any other mobile or devise was ever sent to CFSL for any data recovery. These facts falsify that any such nude photographs or any other obscene material pertaining to the prosecutrix were taken by the accused.
117. The fact that the transfer of property i.e. G-1/341, Dal Mill Road, Uttam Nagar is not in dispute in view of registered sale deed but prosecution has failed to prove its transfer by cheating, distress or in duress or by undue influence or any other illegal method, and moreover prosecution has failed to prove delivery of Rs. 12 lakhs by prosecutrix to accused in absence of bank account statement of prosecutrix or her husband and in view of then alleged prevailing financial crunches in family of prosecutrix. The prosecutrix has not explained source of Rs. 12 lakhs being a house wife.
118. The prosecutrix has claimed that she had gone alone to the Office of the Sub-Registrar for execution of the sale deed. The prosecutrix, in her cross examination has deposed that "When the registration of the sale deed was done on 28.06.2011, one lady was present whom the accused had introduced as his wife, but I do not know whether or not she actually was his wife. The registration was done in the office of Sub- Registrar at about Sessions Case Number : 81 of 2013.
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11.00am -12.0noon....I had gone alone for the registry. I did not tell my husband and children that I was going for registration of the sale deed."
119. Here the evidence of the husband of the prosecutrix (PW9) would be relevant. He has deposed in his cross examination by the Additional Public Prosecutor that "It is correct that I had stated to the police in my statement that on 19.10.2011, I along with my wife went to the accused and told him that he had taken the money as well as the property from my wife but there is no improvement in his business and accused told me that I should wait for 4-5 days if my business will not improve he will return the amount as well as the property to me......Accused also got executed property documents of house No. G-1/341, Dal Mill Road, Uttam Nagar in his name." He has deposed in his cross examination by the accused that "It is correct that a sale deed was executed by my wife in favour of the wife of the accused regarding sale of house no. G-1/341, Dalmill Road, Uttam Nagar, New Delhi. Vol. it was only a "Totaka" (solution)for making my business flourish......"
120. On careful perusal of the testimonies of PWs 3 and 9, it is clear that the evidence of the prosecutrix is false that she had not disclosed to her husband about the transfer since her husband apparently was fully aware of the same.
121. It is also clear on perusal of the sale deed dated 28.06.2011 (Ex.PW3/A and Ex.PW4/A) that the property in question G-1/341, Dal Mill Sessions Case Number : 81 of 2013.
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Road, Uttam Nagar was sold by the prosecutrix in favour of Ms.Sarmila Khatoon for a consideration of Rs.6,85,000/-. On the rear side of page 2, which is the endorsement of the Sub -Registrar, there is signature of the prosecutrix as the presenter and that the admission of the vendor (prosecutrix) that the entire consideration of Rs.6,85,000/- has been paid to her. All the details of the consideration amount, stamp duty paid, value of registration, pasting fee etc. are also clearly mentioned.
122. PW10, SI Bimla, IO has also deposed that she had verified the sale deed and found the same to be genuine. It contained all the relevant documents prepared at Janak Puri Authority.
123. On perusal of the certified copy of the civil suit filed by the prosecutrix against the wife of the accused, accused and office of Sub- Registrar which is for declaration, permanent injunction and possession filed on 24.01.2012, it transpires that in paragraph number 7, it is mentioned that on 30.06.2011, defendant number 2 (accused) performed some tantric trick due to which she became unconscious. When she regained consciousness, she found that she was brought by the accused, his wife and their relative to some Court type place. On inquiry, she was told that it was the office of the Sub-Registrar and in this office, the accused made her sign some documents in semi conscious condition and immediately removed her from that place. She had signed mechanically without going through the documents and knowing the consequences.
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124. This story is different from the prosecution version on material aspects as there is no mention in the complaint (Ex.PW3/B) and evidence of the prosecutrix of the accused doing some tantrik trick on her, her loosing consciousness, regaining it in office of Sub-Registrar and signing on documents in semi conscious condition. More importantly, it cannot be ignored that the sale deed (Ex.PW3/A and Ex.PW4/A) was executed on 28.06.2011 and not 30.06.2011. No explanation is coming forth from the prosecution about this contradiction.
125. Also, when the Sub-Registrar had registered the sale deed, he is assumed to have followed the legal procedure, making the necessary enquiries etc. and the prosecutrix as well as the prosecution have failed to show otherwise.
126. All these facts indicate that there was no dishonest inducement by the accused to the prosecutrix to transfer her property situated at G-1/341, Dal Mill Road, Uttam Nagar in the name of his wife nor any inducement by the accused for giving Rs.12 lacs nor Rs.12 lacs were given to him by the prosecutrix.
OFFENCE UNDER SECTION 420 OF THE IPC-CHEATING
127. Before discussing the offence of cheating allegedly committed by the accused, it is necessary to understand the concept and meaning of cheating.
128. Section 415 of the IPC explains cheating as follows:
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Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.
129. The punishment of cheating is provided in section 420 of the IPC which is elaborated below:
Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
130. In her complaint (Ex.PW3/A) and evidence before the Court, the prosecutrix has claimed that the accused being a tantric cheated her of Rs.
5,000/- and thereafter induced her to deliver her property and cash of Rs.12 lacs on the pretext of improving the business of her husband and promising to take care of her ailments.
131. Here the discussion of the offence under section 384 of the IPC is also relevant and same also be read under the heading of section 420 of the IPC.
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Whether or not the accused is a tantrik
132. First of all, under this heading, it is necessary to ascertain whether or not the accused is a tantric (Godman).
133. A Tantrik baba is the person practicing the art of tantric. A tantra is a Hindu or Buddhist mystical or magic text, dating from the 7th century involving mantras, meditation, yoga and ritual. It is the most controversial branch of Indian spiritual studies as it involves black magic. It is neglected by most people in the society. Despite of all the accusations, tantric represents the practical aspect of the Vedic tradition. Tantrik baba is the one who performs black magic on people or things to change the fate of it completely..........http://vashikaranguru.net.in
134. In her examination in chief, the prosecutrix (PW3) has deposed that someone known to them had given the address of one Mohd Sanaullah, who was residing at C-199, Khayala and suggested to them to visit him as he was a Tantrik.
135. In her cross examination, the prosecutrix has deposed that "I was told by a passenger, whose name I do not remember today, to consult a Tantrik for treatment of my illness. My husband runs a business of transport and had trucks and in the course of his work some one who were associated in his work and was passenger in his truck had told me to consult a Tantrik and had told me the name of accused Sanaullah... I was told by a passenger, whose name I do not remember today, to consult a Tantrik for treatment of my illness. My husband runs a business of Sessions Case Number : 81 of 2013.
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transport and had trucks and in the course of his work some one who were associated in his work and was passenger in his truck had told me to consult a Tantrik and had told me the name of accused Sanaullah. ...I was not keeping well and my husband was not doing well in his business and for this reason, we had gone to the Tantrik for a solution(Upaai).."
136. PW9, husband of the prosecutrix, has deposed in his examination in chief that someone had told him that the accused was a Tantrik (Godman). In his cross examination, he has deposed that "Some tempo driver whose name I do not recollect, had told me about the accused... I do not remember the name of the person who had told me that I should visit a Tantrik for making my business flourish."
137. PW3 has deposed that she had been told by someone-a passenger that accused was a Tantrik and she should visit him. On the other hand, PW8 has deposed that someone-some tempo driver had told him about the accused being a tantric. Both have not been able to tell the details and the particulars of the person who allegedly told them that the accused is a Tantrik.
138. PW10, SI Bimla, has deposed that "Nothing incriminating was recovered while searching the premises of the accused."
139. PW11, Ct.Tilak Raj, a witness of investigation, has deposed in his cross examination that "Nothing was found from the place of occurrence. I do not remember whether there was any Masjid, temple or Pooja House of tantrik. The place of occurrence was a residential accommodation." Sessions Case Number : 81 of 2013.
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140. It is clear that from the premises of the accused nothing incriminating was recovered which could indicate that the accused was a tantrik (Godman). There was nothing which could suggest that the accused was practicing any occult sciences, mystic or magical practices, paranormal activities or spiritual or religious activities.
141. On perusal of the certified copy of the civil suit filed by the prosecutrix against the wife of the accused, accused and office of Sub- Registrar which is for declaration, permanent injunction and possession filed on 24.01.2012, it transpires that in paragraph number 3, it is mentioned that on 23.03.2011, on recommendation of a family friend, the plaintiff (prosecutrix) and her husband contacted defendant no.2 (accused) at his place i.e. C-119, Khyala, New Delhi, as he claimed himself to be a Tantrik capable of changing fortunes of the people in need by super natural tricks generally as Jadu Tona. Plaintiff and her husband wanted a boost in their business.
142. No explanation is coming forth from the prosecution about this "family friend" and about the accused himself claiming to be a tantric which are otherwise also in contradiction to the evidence of PWs 3 and 9.
143. Here the evidence of DW1 is relevant when he has deposed that "As told by Mr. Mohd. Sanaullah, he is doing garment business in Vishnu Garden. I never visited the said business premises." He had also stood surety for the accused. DW2 has also deposed that "Mohd. Sanaullah is a tailor by profession in Vishnu Garden." Except for a negative suggestion Sessions Case Number : 81 of 2013.
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being given to DW2, he has not been cross examined regarding the profession of the accused.
144. All these facts in totality indicate that the accused was not a Tantrik (Godman).
Whether or not the prosecutrix was keeping unwell.
145. It is the case of the prosecution that as the prosecutrix was not keeping well, she had gone to the accused who was Tantrik.
146. PW3, the prosecutrix has deposed, in her examination in chief that the business of her husband was not going on well and she was also not keeping well. They narrated their problem to accused Mohd. Sanaullah and he said this that he would solve their problem and demanded Rs.5000/- for the same. Her husband confirmed from the accused Mohd. Sanaullah, if they pay Rs.5000/- to him, will it solve their problem on which accused assured her husband that his business will be OK and she will also recover from her ailment. In her cross examination, she has deposed that "I was not keeping well and my husband was not doing well in his business and for this reason, we had gone to the Tantrik for a solution(Upaai)..... I am diabetic since last 5-6 years. I am no longer have menses. I did not have any conception during the period of 6 months , the accused was having physical relations with me. Vol. My uterus was removed 7-8 years ago."
147. She has not produced any document or proof to show that at the relevant time, she was not keeping well. Her medical condition has also been Sessions Case Number : 81 of 2013.
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discussed above while considering her MLC. She has also not produced any proof that she was diabetic or that her uterus had been removed.
148. PW9, husband of the prosecutrix has not even deposed an iota about the prosecutrix not keeping well due to which they had gone to the accused. In his cross examination by the Additional Public Prosecutor (as he was hostile), he has deposed that "It is correct that my wife started living in depression." However, this part of the evidence relates to after 19.10.2011 when she had told him about the alleged rape. It does not show in any manner that prior to 24.03.2011, the prosecutrix was not keeping well.
149. The fact that the husband of the prosecutrix has not supported the prosecutrix regarding her not keeping well, indicates that there was nothing wrong in her medical condition.
150. On perusal of the certified copy of the civil suit filed by the prosecutrix against the wife of the accused, accused and office of Sub- Registrar which is for declaration, permanent injunction and possession filed on 24.01.2012, it transpires that in paragraph number 3, it is mentioned that on 23.03.2011, on recommendation of a family friend, the plaintiff (prosecutrix) and her husband contacted defendant no.2 (accused) at his place i.e. C-119, Khyala, New Delhi, as he claimed himself to be a Tantrik capable of changing fortunes of the people in need by super natural tricks generally as Jadu Tona. Plaintiff and her husband wanted a boost in their business.
151. No explanation is coming forth from the prosecution about the Sessions Case Number : 81 of 2013.
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failure to mention about the prosecutrix going to the accused for finding a solution as she was not keeping well (which is a very important and material issue). This fact is otherwise also in contradiction to the evidence of PW3.
152. All these above facts indicate that the prosecution has failed to show that the prosecutrix was not keeping well.
Whether or not the business of husband of the prosecutrix was not doing well
153. It is the case of the prosecution that as the business of the husband of the prosecutrix was not doing well, they had gone to the accused who was Tantrik.
154. PW3, the prosecutrix has deposed, in her examination in chief that the business of her husband was not going on well and she was also not keeping well. They narrated their problem to accused Mohd. Sanaullah and he said this that he would solve their problem and demanded Rs.5000/- for the same. Her husband confirmed from the accused Mohd. Sanaullah, if they pay Rs.5000/- to him, will it solve their problem on which accused assured her husband that his business will be OK and she will also recover from her ailment. In her cross examination, she has deposed that "I was not keeping well and my husband was not doing well in his business and for this reason, we had gone to the Tantrik for a solution(Upaai)"
Sessions Case Number : 81 of 2013.
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155. PW9, husband of the prosecutrix has deposed that someone had told him that accused was a Tantrik (Godman) and he could help him since his business was not doing well. In his cross examination, PW9 has deposed that "I am doing transport business but my business was not doing well... I am doing business of transport since December 1995. I have two Tata 407 and one Mahindra Jeep which are used for commercial purposes. Sometimes I earn Rs.2,000/- in a day per vehicle and some times there is no earning in a day. There is no fixed income."
156. The prosecution has neither produced any documents to show the nature of the business done by the husband of the prosecutrix and that the business was not doing well. Even PW9 has not furnished the registration numbers of his vehicles. It remains only a mere bald assertion without any corroborative evidence that the business of the husband was not doing well and therefore makes the prosecution version doubtful that the business of PW9 was not doing well. Even other, it is clear from his evidence that he was maintaining two Tata 407 and one Mahindra Jeep which are used for commercial purposes and he sometimes earned Rs.2,000/- in a day per vehicle and some times there is no earning in a day. There is no fixed income. Earning Rs.6,000/- per day cannot be said to be business loss or low income in any manner. PW9 has also failed to produce documents of his income to show that his business was not doing well or running in losses.
157. All these above facts indicate that the prosecution has failed to show that the business of the husband of the prosecutrix was not doing well.
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Whether or not Rs.5,000/- Rs.12 lacs and property given by inducement
158. It has already been discussed above that there is no evidence o the record to show that the prosecutrix had given any money- Rs.5,000/- and Rs. 12 lacs to the accused. It is also clear that the sale of the property of the prosecutrix in favour of the wife of the accused was validly, legally and properly made. There was no cheating done with the prosecutrix.
159. It has not been proved by the prosecution that the accused was a tantric, the prosecutrix was not keeping well and the business of her husband was not doing well for which they had gone to the accused and he cheated them of Rs.5,000/-, Rs.12 lacs and the property of the prosecutrix by giving them a solution (totka) on the pretext of improving the business and taking care of her ailments.
OFFENCE UNDER SECTION 506 OF THE IPC- THREAT
160. Section 506 of the IPC is elaborated herein under as follows:
Punishment for criminal intimidation.-Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with both;
If threat be to cause death or grievous hurt, etc. - And ift he threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or {imprisonment for life}, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Sessions Case Number : 81 of 2013.
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161. In her complaint (Ex.PW3/B) and her evidence, the prosecutrix has claimed that the accused threatened to kill her on 31.10.2011 in the morning at C-199, Khyala New Delhi if she did not maintain physical relations with him.
162. In her examination in chief, the prosecutrix (PW3) has deposed that "On 31.10.2011, I along with my husband and eldest brother visited the house of the accused and called him downstairs and asked to return the property, money as well as my nude photographs clicked by him. Accused refused to return anything and also stated that MERE PAAS PHOTO HAI TUJHE BAAR BAAR AANA PADEGA JAB BHI BULAUNGA."
163. PW9 has not deposed anything about the incident of 31.10.2011 in his examination in chief. He was declared hostile by the prosecution and in his cross examination by the Additional Public Prosecutor but nothing material came forth. In fact he deposed that "It is wrong to suggest that I had told the police in my statement dated 09.12.2011 under section 161 of the Cr.P.C. that on 31.10.2011, I along with my wife had gone to the accused but he did not hear us and also refused to hand over the possession of the flat." He has not mentioned anything at all about the alleged threat on 31.10.2011 by the accused which falsifies the evidence of the prosecutrix
164. As already discussed above, the prosecution has failed to prove that the accused had nude photographs of the prosecutrix and therefore there was no question of the accused threatening her with them and telling her to continue to maintain physical relations with him. Even earlier, there had not Sessions Case Number : 81 of 2013.
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been any instance of rape or physical relations.
165. Also, the effect of the alleged threat, has not been disclosed anywhere nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused as she allegedly remained in his association for a very long time i.e. six months and there was no reason why she could not have disclosed about the alleged threat to the neighbours, family, police, doctors and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Also, when it has been observed that neither any intoxicating substance was administered to her nor she was raped nor any extortion was done nor any cheating was done, the question of her being threatened also does not arise.
166. Therefore, the prosecution has failed to prove that the accused had threatened the prosecutrix at any point of time.
DEFENCE OF THE ACCUSED
167. In his statement under section 313 of the Cr.P.C., the accused has given mainly brief answers by saying "It is wrong" to most of the questions or has denied the evidence against him or projected ignorance by saying "I do not know". He has stated that he is innocent and has been falsely implicated in this case. He has stated that "I do not know prosecutrix prior to the purchase of property G-1/341, Dal MiIl Road, Second Floor, Uttam Nagar, Delhi. On 28.06.2011 I got registered the property G-1/341, Dal MiIl Road, Sessions Case Number : 81 of 2013.
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Second Floor, Uttam Nagar, Delhi in the name of my wife. From that time we all were residing there. On 19.10.2011, Prosecutrix with her husband Mr. Praveen Batra, Mr. Karan Batra, MR. Mohit Batra, Mr. Jatin Batra and Mr. Subhash Chand came to my home and asked to returned back the above said property or gave Rs.5 lacs more. He stated that due to loss in transport business, he had sold the property in lesser amount. They threatened and abused us and beaten me and my wife. They had also forcibly taken out the property documents from my almirah. Thereafter, I made a call to police on 100 number. PCR officials came and took all of us in PS Uttam Nagar. On enquiry I told everything to the SHO. However, still despite being innocent , I have been falsely implicated in this case. I have not committed any offence."
168. Although suggestions on the lines of his statement under section 313 of the Cr.P.C. have been given to PWs 3 and 9 but no such suggestion has been given to PW8. The accused has himself failed to step into the witness box to substantiate his stand and has also not led any evidence to prove his claim.
169. The prosecutrix has admitted about filing a civil suit against the accused which is pending before the Court of learned Additional District Judge, West. On perusal of the certified copy of the same, it transpires that it is a suit for declaration, permanent injunction and possession filed on 24.01.2012. It is also clear from the certified copies of the order sheets especially of 24.10.2013 that the matter is now listed for 10.12.2013 for admission/denial of documents, framing of issues and disposal of interim Sessions Case Number : 81 of 2013.
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application. There is no interim stay in favour of the prosecutrix.
170. The accused has although failed to show any motive or malafide intention on the part of the prosecutrix for implicating him in a false case due to lack of his evidence, but the same does not in any manner give any support to the prosecution case. In fact, as the complaint (Ex.PW3/B) was made on 01.11.2011 and the civil suit was filed by the prosecutrix on 24.01.2012, the same only indicate that the prosecutrix is making ddesperate and unsuccessful attempts in either return of the property which she has validly and legally sold to the accused or is trying to extort moeney from the accused, may for enhanced price or retune of Rs.12 lacs giving of which otherwise is also not proved.
171. The evidence of DWs 1 and 2 is of no help to the accused as DW1 has not been able to show that he was the property dealer through whom the prosecutrix had sold her property in favour of the wife of the accused for a consideration of Rs.6,85,000/- and that he had taken any commission from both the sides and DW2 has deposed that the property was sold in favour of the accused (which is contrary to the facts as the sale deed is in favour of the wife of the accused).
172. 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. The prosecution cannot take advantage of the weakness of the defence of the accused.
However, the defence of the accused does appear to be probable. Sessions Case Number : 81 of 2013.
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173. Although the defence of the accused has not been proved but more importantly, the version of the prosecutrix and the prosecution cannot be relied upon, as discussed above.
MENS REA / MOTIVE
174. Regarding the motive of crime, it may be observed that in a case based on circumstantial 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 circumstantial 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.
175. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial 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 unnameable 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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176. In the present case there is sufficient evidence on record to show that the accused did not have motive to commit the offence. A witness is normally to be considered independent unless he or she springs from 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.
Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. 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.
177. In the present case, a story has been projected by the prosecution that the accused, being a tantric, had continuously raped the prosecutrix for six months, dishonestly induced her to give him Rs.5,000/-, Rs. 12 lacs and her property, and threatened to kill her. However, none of the allegations have been proved by the prosecution. The evidence of the prosecutrix is also not reliable.
178. All these facts in totality indicate that there was no criminal intention and mens rea on the part of the accused.
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INVESTIGATION
179. The investigation conducted in the present case has been deposed by police witnesses. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
180. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.
181. 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, then the investigation becomes less important. Inversely, when the version of the prosecutrix is unreliable and unbelievable, then the investigation is not too material.
182. 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.
183. Therefore, the investigation is not being taken into consideration although it is material but not very relevant as the evidence of the prosecutrix Sessions Case Number : 81 of 2013.
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itself is not reliable. However, there is nothing on the record to indicate that the investigation has not been fair or proper.
CONCLUSION
184. Since the prosecutrix as PW3 is neither reliable nor believable and there are overwhelming contradictions and discrepancies in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
185. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish the following facts:
i.that the accused was a tantric;
ii.that on 24.03.2011 at C-199, Khayala, New Delhi, he administered to prosecutrix (name withheld to protect her identity) certain stupefying material mixed in a drink with the intention to commit the offence of rape upon her; on 24.03.2011 and thereafter continuously for six months at C-199, Khayala, New Delhi, accused repeatedly committed rape upon the prosecutrix;
iii.that between the period of 24.03.2011 and 31.10.2011, accused intentionally put prosecutrix in fear of ruining her life by showing her nude photographs to the public and thereby dishonestly induced her to transfer the property situated at G-1/341, Dal Mill Road, Uttam Nagar in the name of his wife and also induced her to deliver a cash of Rs. 12,00,000 (Twelve Lacs) to him;
iv.that on 23.03.2011 at C-199, Khayala, New Delhi, accused being a tantrik cheated prosecutrix and induced her to deliver a cash of Rs.12,00,000/- (Twelve Lacs) promising to take care of her problems; Sessions Case Number : 81 of 2013.
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v.and that on 31.10.2011 in the morning at C0199, Khyala, New Delhi, the accused threatened to kill the prosecutrix if she did not maintain physical relationship with him.
186. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The evidence of the prosecutrix is neither reliable nor believable and is not worthy of credence. The prosecution has failed to prove any/all of the offences with which the accused has been charged.
187. 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:
1. 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;
2. 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;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. 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.
188. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Mohd.Sanaullah stands established. It also stands established that the prosecutrix was not a minor. It Sessions Case Number : 81 of 2013.
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also stands established that the accused is not a tantric.
189. It is also clear that there is an inordinate unexplained and unjustified delay in making the complaint of rape and in lodging the FIR. It also stands established that the accused had not raped the prosecutrix at any point of time. There is no medical or forensic or circumstantial evidence to show that such an offence has ever been committed. There is nothing to prove that the accused extorted or cheated the prosecutrix od Rs.5,000/-, Rs.12 lacs or her property. There is nothing to show that the accused had threatened the prosecutrix in any ammer, with her nude photographs or to be killed. 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 an incident ever took place.
190. Therefore, there is no force is the contention of the Additional Public Prosecutor that the accused has committed any offence.
191. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has miserably failed to bring home the charge against the accused.
192. Accordingly, Mr.Mohd. Sanaullah, the accused, is hereby acquitted of the charge of the offences punishable under sections 328, 376, 384, 420 and 506 of the IPC.
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COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
193. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
SOME OBSERVATIONS REGARDING THE RAPE CASES
194. 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 unreliable and not worthy of credence, 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.
195. Under these circumstances, the task of both the Investigating Agency and the Court becomes onerous so as to ensure that on one hand the existing penal provisions are not abused so as to implicate innocent persons whereas on the other hand, to ensure that no guilty is left scot free.
196. This case is just one of the many cases in this Court where the evidence of the prosecutrix is not reliable due to which an innocent man has to undergo the rigours of investigation and trial before he is declared innocent holding that the allegations against him are false. In my considered view, it is time that we as a Civil Society stand up not to only protect, shelter and rehabilitate a victim of rape but also to protect and shelter an accused against Sessions Case Number : 81 of 2013.
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whom false allegations of rape have been levelled.
SOME FORMALITIES
197. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
198. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
199. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 22nd day of November, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
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