Delhi District Court
State vs Accused on 15 September, 2011
IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL
SESSIONS JUDGE-II:EAST DISTRICT:KARKARDOOMA
COURTS: DELHI
SC NO. 59/08 Date of Institution :22.02.2008
FIR No. 337/07 Date of Argument :25.08.2011
PS Mayur Vihar Date of Order :15.09.2011
U/S 452/392/324/376(2)(g)/307/506/34 IPC
State Versus Accused
1 Leelu Ram @ Sonu
S/o Sh. Mohar Singh
R/o 33/204, Trilok Puri, Delhi.
2 Sunil Pandey
S/o Sh. Raman Pandey
R/o 33/319, Trilok Puri, Delhi.
3 Kamal Kishore @ K.P.
S/o Sh. Raj Kishore
R/o 23/459, Trilok Puri, Delhi.
4 Chanchal @ Neetu
W/o Kamal Kishore @ K.P.
R/o 33/297, Trilok Puri, Delhi.
5 Vidya
W/o Sh. Mohar Singh
R/o 33/204, Trilok Puri, Delhi.
JUDGMENT
The facts in brief of the prosecution case are that on 09.09.2007 at about 3 a.m./3:30 a.m. on first floor of H.No.33/310, Trilok Puri accused Sunil Pandey, Kamal Kishore @ K.P., Leelu Ram @ Sonu in furtherance of their common intention and having armed with knives not only SC No. 59/08 State Vs. Leelu Ram etc. Page 1 of 56 committed house tress pass by entering into the above mentioned house belonging to Smt. Vijay Laxmi and committed robbery of money, silver tagri, silver pajeb, four gold bangles, one gold necklace, one gold chain, one ear ring but also obtained the signatures of complainant Smt. Vijay Laxmi on her cheque book of SBI. Besides, they committed gang rape on Smt. Vijay Laxmi and also threatened to kill her and caused injuries on her body. Soon after leaving said house by the accused persons, Smt. Vidya, mother of accused Leelu Ram and Smt. Chanchal @ Neetu W/o Sh. Kamal Kishore @ K.P. Entered into house of Smt. Vijay Laxmi and poured kerosene oil upon her with the intention to set her on fire and attempted to commit her murder. Ms. Kiran, daughter of Smt. Vijay Laxmi informed the police by dialing No.100. Police arrived at the spot. Police recorded statement of Smt. Vijay Laxmi (PW3). FIR No.337/07 (Ex.PW2/A) was registered. Police conducted investigation. Smt. Vijay Laxmi was got medically examined in LBS Hospital vide MLC Ex.PW8/A. During the medical examination of Smt. Vijay Laxmi, doctor has prepared a pullinda of her petticoat, blouse, pubic hair, vaginal swab and handed over to IO in sealed pullinda which were taken into possession. IO prepared site plan. Accused persons were arrested. They were interrogated and their disclosure SC No. 59/08 State Vs. Leelu Ram etc. Page 2 of 56 statements were recorded. Leelu Ram @ Sonu, Sunil Pandey and Kamal Kishore @ K.P. were also got medically examined. After completion of investigation police filed the charge sheet before the Ld. Magistrate for their trial for the offences punishable U/s 452/392/324/376(2)
(g)/307/506/34 IPC.
2. Ld. Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to my Ld. Predecessor.
3. Charge against Sunil Pandey, Kamal Kishore @ K.P. And Leelu Ram @ Sonu for the offences punishable u/s 452/392/397/376(2)(g)/506(II)/324/34 IPC and separate charge against accused Vidya and Chanchal for the offences punishable u/s 452/307/34 IPC were framed and read over to all of them in vernacular language as my ld. Predecessor was of the view that prima-facie case for said offences was made out against them. All of them pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Ct. Satvir as PW1; HC Fateh Mohd. as PW2; complainant Smt. Vijay Laxmi as PW3; ASI K.P. Singh as SC No. 59/08 State Vs. Leelu Ram etc. Page 3 of 56 PW4; HC Vijay Singh as PW5; Ct. Ramvir Singh as PW6; HC Mahesh Chand as PW7; Dr. Subodh from LBS Hospital as PW8; SI Omkar Singh as PW9; Ms. Kiran daughter of complainant as PW10; Ct. Gajender as PW11; Inspector Ashok Kumar as PW12; and SI Surender Dalal as PW13.
5. After closing of prosecution evidence statements of all the five accused persons were recorded u/s 313 Cr. P.C. All the material and incriminating evidence was put to them. All the accused persons denied the correctness of prosecution evidence.
6. Accused Leelu pleaded that his mother had taken a shop on rent from Smt. Vijay Laxmi at the rental of Rs.1,000/- per month in the beginning of year 2007. Her mother had also given an amount of Rs.1,50,000/- to Smt. Vijay Laxmi on credit basis. He has been falsely implicated in the present case due to that reason.
7. Accused Sunil Pandey pleaded that he was innocent and has been falsely implicated. Complainant resides in the same gali in which he resides. He had given Rs.1,30,000/- to complainant on credit basis. In February 2007 he had taken two shops from complainant on rent of Rs.1,000/- each and an agreement to that effect was SC No. 59/08 State Vs. Leelu Ram etc. Page 4 of 56 executed. He started his business of STD in one of the shop and another was closed by him. Complainant asked him for giving Rs.1,50,000/- for starting her business in other shop which used to remain closed. He refused for the same. Complainant offered that she will stop taking rent of STD shop if other shop will be given to her alongwith Rs. 1,50,000/-. She also offered to hand over cheques for the amount received and also executed documents in that regard. She had also offered him to call the witness of the gali for that transaction. He had given the amount of Rs. 1,30,000/- to her in the presence of witnesses and his brother on 13.04.2007. She also handed over four signed cheques of Rs.32,500/- each to him. An agreement to that effect was also executed which was duly signed by them. Thereafter, he came to know that complainant had taken an amount of Rs.1,50,000/- from Smt. Vidya and Rs. 40,000/- from Smt. Chanchal. On asking, complainant replied that when he will vacate the shop then she will discharge her liability. He asked her to pay his money before vacating the shop. On that account there was a quarrel between him and complainant. She threatened him to implicate him in some case if he did not vacate the shop and so she implicated him in the present case in conspiracy with some neighbour who want to purchase her house. After one month his nephew, aged about 13 years SC No. 59/08 State Vs. Leelu Ram etc. Page 5 of 56 was burnt by her.
8. Accused Kamal Kishore @ K.P. also denied the prosecution evidence and pleaded that he had given Rs. 40,000/- to Smt. Vijay Laxmi on credit basis on 05.06.2007 in the presence of Smt. Indra and Smt. Geeta vide agreement which was signed by both the parties and witnesses. A receipt of that amount was issued by Smt. Vijay Laxmi. She also handed over possession slip of her house. She did not want to return the amount. She falsely implicated him in the present case.
9. Accused Chanchal pleaded that on 05.06.2007, her husband had given an amount of Rs.40,000/- to Smt. Vijay Laxmi on credit basis in the presence of Smt. Indra and Smt. Sita. An agreement was executed which was signed by Smt. Vijay Laxmi and witnesses. She had also delivered the receipt/possession slip of her house. She has been falsely implicated in the present case due to that reason.
10. Accused Vidya pleaded that she had taken a shop from complainant @ Rs.1,000/- per month. Complainant asked her to give Rs.1,50,000/- and she will not take rent from her. She had given Rs.1,50,000/- to her SC No. 59/08 State Vs. Leelu Ram etc. Page 6 of 56 one year prior of registration of this case. She had not paid the rent thereafter. Shop is in her possession and locked by her. Complainant filed a case against her for recovery of rent and the same was dismissed. She has been falsely implicated by the complainant due to that reason.
11. In support of their defence accused persons examined Sh. Jai Bhagwan Sharma resident of district Bulland Shahar as DW1; Sh Sanjay, a neighbour as DW2; Lady Ct. Sushma of PS Madhu Vihar as DW3; Sh. Sanjay Sharma, Superintendent (Sales), Mother Dairy as DW4; Lady ASI Asha of PCR as DW5; Sh. Y.S. Negi, Inspector, Food & Supply Circle as DW6; Sh. Vinod Kumar Singh, Inspector, LG Secretariat as DW7; Sh. Ravi Kant, LDC, Record Room (Civil) as DW8; Sh. Anil Kumar, Ahlmad in the court of Sh. D.K. Garg, M.M. as DW9; Sh. Virender Kumar, Ahlmad in the court of Sh. S.K. Arora as DW10; Sh. Ravi Kant, LDC Record Room (Civil) as DW11; Sh. Anuj Verma, Ahlmad in the court of Sh. Ajay Gupta, JCC cum ASCJ cum GJ, Karkardooma as DW12; SI Nagender Singh of PS Mayur Vihar as DW13; Ct. Rajesh Kumar of PS Mayur Vihar as DW13; Ct. Rajesh Kumar of PS Mayur Vihar as DW14; Sh. Sanjay Sharma, Superintendent (Sales), Mother Dairy as DW15; Smt. Usha a neighbourer as DW16; Smt. Ram Murti, SC No. 59/08 State Vs. Leelu Ram etc. Page 7 of 56 a neighbourer as DW17; Sh. Ram kishan, a neighbour as DW18; Sh. Inder Pal a neighbourer as DW19; Sh. Kuldeep Shastri, a neighbourer as DW20; Sh. Leelu Ram @ Sonu, a neighbourer as DW21; HC Satbir of PS Mayur Vihar as DW2; Sh. Kishan Lal a neighbourer as DW23; Sh. Anil Kr. Pandey, brother of Sh. Sunil Pandey accused as DW24; HC Manoj Kumar from the office of DCP (East) as DW25; Smt. Indra, a neighbourer as DW26; and Smt. Sita another neighbour as DW27.
12. After closing of evidence of both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and lengthy arguments addressed by Ld. Defence Counsels for accused persons.
13. The defence witnesses proved documents as detailed in the TABLE A. TABLE A S. Proved Proved Details of document Remarks No. by As Ex. (Prior or After 09.09.2007) 1 DW3 DW3/A PCR FORM Dated 09/09/07 09.09.2007 2 DW 4 DW4/A Allotment Mother Diary PRIOR 3 DW 4 DW4/B Application Form dated PRIOR 6.11.06 SC No. 59/08 State Vs. Leelu Ram etc. Page 8 of 56 4 DW 4 DW4/C Survey Report dated PRIOR 5.12.06 5 DW 4 DW4/D Grounting Report dated PRIOR 5.12.06 6 DW4 DW4/E Sales Statement dated AFTER 30.09.07 7 DW5 DW5/A PCR FORM Dated 09/09/07 09.09.2007 8 DW5 DW5/A PCR FORM Dated 09/09/07 09.09.2007 9 DW6 DW6/A Copy of F.P.S.Register PRIOR August 07 10 DW6 DW6/B Copy of F.P.S.Register PRIOR August 07 11 DW6 DW6/C Copy of F.P.S.Register AFTER October 07 12 DW6 DW6/D Copy of F.P.S.Register PRIOR August 07 13 DW6 DW6/E Copy of F.P.S.Register PRIOR September 07 14 DW6 DW6/F Copy of F.P.S.Register AFTER October 07 15 DW6 DW6/G Copy of F.P.S.Register PRIOR October 07 16 DW6 DW6/H Copy of Ration Card Vijay PRIOR 17 DW7 DW7/A Complaint of Sh. Anil Kr. AFTER 18 DW7 DW7/B Copies of complaints, AFTER photograph of shop, complaint of Sh. Surajmal Pandey 19 DW7 DW7/C Copies of documents AFTER annexed with letter SC No. 59/08 State Vs. Leelu Ram etc. Page 9 of 56 20 DW8 DW8/A Certified copy of eviction AFTER petition titled as Vijay Laxmi v. Vidya Devi 21 DW8 DW8/B Written Statement filed by AFTER Smt. Vidya 22 DW8 DW8/C Legal Notice of Sh. H.K. AFTER Mahor 23 DW8 DW8/D Proceedings of court AFTER 24 DW9 DW9/A Certified copy of cheque AFTER No.833235 25 DW9 DW9/B Certified copy of cheque AFTER No.833234 26 DW9 DW9/C Certified copy of AFTER complaint u/s156 (3) Cr.PC 27 DW10 DW10/A Certified copy of cheque AFTER No.833236 28 DW10 DW10/B Certified copy of cheque AFTER No.833237 29 DW11 DW11/A Copy of WS in Suit for AFTER Permanent Injunction 30 DW11 DW11/B Copy of FIR dt. 17.08.07 PRIOR 31 DW11 DW11/C Copy of Complaint dt. PRIOR 17.08.07 32 DW11 DW11/D Copy of statement of AFTER defendant Vijay Laxmi dt.
25.10.10 33 DW11 DW11/E Order of Court dated AFTER 25.10.10 34 DW12 DW12/A Certified copy of judgment AFTER and decree dt. 07.10.10 35 DW12 DW12/B Order dated 01.11.10 AFTER 36 DW13 DW13/A Certified copy of Status AFTER Report dt. 18.02.10 SC No. 59/08 State Vs. Leelu Ram etc. Page 10 of 56 37 DW14 DW14/A Copy of relevant page AFTER from Complaint Register of complaint filed by Sunil Pandey dated 12.09.07 38 DW14 DW14/B Copy of relevant page After from Complaint Register of another complaint filed by Sunil Pandey received on 20.11.09 39 DW15 DW15/A Authorization Letter dt. AFTER 07.02.11 40 DW15 DW15/B Agreement dt. 01.12.06, PRIOR 41 DW15 DW15/C Copy of declaration form -- 42 DW15 DW15/D Copy of surety bond PRIOR attested on 30.11.06 43 DW15 DW15/E Certified copy of sales PRIOR statement, for the period 01.09.07 to 30.09.07 44 DW22 DW22/A Copy of DD Entry, for the PRIOR period 13.08.07 to 15.08.07 45 DW22 DW22/B Copy of DD Entry, for the PRIOR period 13.08.07 to 15.08.07 46 DW22 DW22/C Copy of DD Entry No.7A 09.09.07 dt. 09.09.07 47 DW22 DW22/D Copy of DD Entry No.11A 09.09.07 dt. 09.09.07 48 DW22 DW22/E Copy of DD Entry No.4A AFTER dt. 10.09.07 49 DW22 DW22/F Copy of DD Entry No.35A AFTER dt. 13.09.07 50 DW22 DW22/G Copy of DD Entry No.3B, AFTER dt. 14.09.07 SC No. 59/08 State Vs. Leelu Ram etc. Page 11 of 56 51 DW22 DW22/H Copy of DD Entry No.24A AFTER dt. 15.09.07 52 DW22 DW22/F Copy of DD Entry No.44A AFTER dt. 13.09.07 53 DW22 DW22/G Reply to RTI Application AFTER 54 DW22 DW22/H Certified copy of DD AFTER Entries provided under RTI 55 DW23 DW23/A Copy of Medical Papers PRIOR 56 DW24 DW24/A Complaint to Police AFTER Commissioner,dt.20.09.07 57 DW24 DW24/B Another complaint to AFTER Police Commissioner, dt.
25.09.07 58 DW24 DW24/C Another complaint to AFTER Police Commissioner,dt.
29.10.07 59 DW24 DW24/D Copy of FIR dt.28.10.07 AFTER 60 DW24 DW24/E Report dt. 31.10.07 AFTER lodged to DCP 61 DW24 DW24/F Report dt. 03.11.07 AFTER lodged to SHO, Mayur Vihar 62 DW24 DW24/G Complaint dt. 06.11.07 AFTER made to Police Commissioner 63 DW24 DW24/H Copy of letter dt. 07.12.07 AFTER received from Sh. Ram Niwas 64 DW24 DW24/I Original reply dt. 14.12.07 AFTER of letter dt. 07.12.07 65 DW24 DW24/J Copy of gate pass dt. AFTER 20.12.07 calling & visiting Sh. Raj Niwas 66 DW24 DW24/K Complaint to LG AFTER SC No. 59/08 State Vs. Leelu Ram etc. Page 12 of 56 67 DW24 DW24/L Copy of letter dt. 20.12.07 AFTER received from LG House 68 DW24 DW24/M Letter to PM dt. 30.01.08 AFTER 69 DW24 DW24/N Copies of orders dt. AFTER 04.02.08 of case relating to Crime Branch 70 DW24 DW24/O Copies of orders dt. AFTER 11.02.08 of case relating to Crime Branch 71 DW24 DW24/P Certified copy of AFTER dishonoured cheque dt.
16.06.08
72 DW24 DW24/Q Certified copy of AFTER
dishonoured cheque dt.
13.05.08
73 DW24 DW24/R Original Legal Notice dt. AFTER
16.05.11
74 DW24 DW24/S Envelop of Original Legal AFTER
Notice
75 DW24 DW24/T Copy of notice of Special AFTER
Executive Magistrate dt.
30.12.10
76 DW24 DW24/U Copy of notice of Special AFTER
Executive Magistrate dt.
30.12.10
77 DW25 DW25/A Copy of complaint dt. AFTER
11.09.07
78 DW25 DW25/B Copy of Declaration letter PRIOR
dt. 13.04.07
79 DW25 DW25/C Application dt. 10.10.07 to AFTER
Joint Commissioner,
Vigilance
SC No. 59/08 State Vs. Leelu Ram etc. Page 13 of 56
80 DW26 DW26/A Document dt. 05.06.07 PRIOR
executed between Vijay
Laxmi & Chanchal
14. On perusal of the file, scrutinizing and
evaluating the evidence on record and on considering the arguments, I have formed my opinion which are discussed here in below in this judgment.
15. It has been argued on behalf of Ld. Defence Counsel that testimony of prosecutrix, Smt. Vijay Laxmi is not believable and trustworthy as firstly she did not support the prosecution case and subsequently she deposed inconsistently.
16. On the other hand Add. Public Prosecutor argued that arguments of the of defence counsels are not convincing and the case of the prosecution has been proved beyond reasonable doubt.
17. In order to convict accused persons for the offence punishable U/s 324/34 IPC, the prosecution has to prove firstly that all the three accused namely Sh. Sunil Pandey, Sh. Leelu Ram @ Sonu, and Sh. Kamal Kishore @ K.P., in furtherance of their common intention voluntarily caused simple hurt by sharp object on the person of Smt. SC No. 59/08 State Vs. Leelu Ram etc. Page 14 of 56 Vijay Laxmi.
18. For the offence punishable u/s 452/34 IPC, the prosecution has to prove that all the three accused namely Sh. Sunil Pandey, Sh. Leelu Ram @ Sonu, and Sh. Kamal Kishore @ K.P., in furtherance of their common intention entered into the house of Smt. Vijay Laxmi; and secondly, that they committed any of the offence punishable with imprisonment.
19. In order to prove its case for the offence punishable u/s 392/34 IPC, the prosecution has further to prove that these accused namely Sh. Sunil Pandey, Sh. Leelu Ram @ Sonu, and Sh. Kamal Kishore @ K.P., in furtherance of their common intention committed robbery of money, silver tagri, silver pajeb, gold bangles, one gold necklace, gold chain and gold ear rings/cheque book of SBI belonging to Smt. Vijay Laxmi and secondly, that articles were snatched by these accused persons from Smt. Vijay Laxmi by putting her in fear. In order to prove its case for the offence punishable u/s 397/34 IPC, the prosecution has further to prove that these three accused namely Sh. Sunil Pandey, Sh. Leelu Ram @ Sonu, and Sh. Kamal Kishore @ K.P., in furtherance of their common intention either used deadly weapon or caused hurt on the body of Smt. Vijay SC No. 59/08 State Vs. Leelu Ram etc. Page 15 of 56 Laxmi.
20. In order to prove its case for the offence punishable u/s 376(2) g/34 IPC, the prosecution has further to prove that accused Sunil committed sexual intercourse with Smt. Vijay Laxmi against her will and secondly, that remaining two accused persons Sh. Leelu Ram @ Sonu and Sh. Kamal Kishore @ K.P. assisted accused Sunil Pandey in commission of sexual intercourse. The prosecution in order to prove its case for the offence punishable u/s 506- II/34 IPC has further to prove that these accused persons in furtherance of their common intention threatened Smt. Vijay Laxmi to kill her.
21. The prosecution in order to prove its case against Smt. Vidya and Smt. Chanchal @ Neetu for the offence punishable u/s 452/34 has further to prove that Smt. Vidya and Smt. Chanchal @ Neetu had tress passed into the house of Smt. Vijay Laxmi with the preparation of causing hurt. The prosecution in order to prove its case against Smt. Vidya and Smt. Chanchal @ Neetu for the offence punishable u/s 307/34 IPC has further prove that both these accused in furtherance of their common intention poured kerosene oil on the body of Smt. Vijay Laxmi with the intention of setting her on fire. Let us SC No. 59/08 State Vs. Leelu Ram etc. Page 16 of 56 examine the prosecution evidence on this aspect.
22. My attention goes to a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, the Apex Court observed:
"The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-
(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-
importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
SC No. 59/08 State Vs. Leelu Ram etc. Page 17 of 56(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
23. Let us examine the testimonies of the prosecutrix and her daughter in the light of principles laid down in case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (supra), to see whether prosecution could prove all the ingredients of above mentioned offences against accused persons.
24. PW-3 Smt. Vijay Laxmi deposed that she has been doing the work of milk booth of mother dairy at her house no. 33/310 Trilok Puri for the last four years. Kiran aged about 13 years, his daughter. On 09.09.2007 at about 3/3.30 a.m. she was sleeping with her daughter. Three assailants entered into her room. They had taken away all her jewelery and other things. She became unconscious. One of the assailants committed rape on her. She made SC No. 59/08 State Vs. Leelu Ram etc. Page 18 of 56 alarm. On hearing two women came and then she informed the police at 100 number. She became unconscious. She could not identify any of the two women and three men assailants and she could not say if the accused standing in the court were the same persons who had committed rape on her and who poured kerosene oil on her. At the request of Ld. Addl. P.P. she was declared hostile. During cross- examination conducted by Ld. Addl. P.P. she admitted that she made a statement EX.PW3/A to the police bearing her signature at point X. She knew accused Sunil who has been residing in her street. She knew accused K.P. @ Kamal Kishore who lives in B block. She knew accused Sonu who used to live in her street. She knew Neetu who is his wife of accused Kamal Kishore @ K.P. She knew Vidya the 5th accused who is mother of accused Sonu. She further stated that accused Sunil, Kamal Kishore @ K.P. and Sonu entered into her room and they had taken out her money box (paise ki gullak), tagdi, silver pazeb, four golden bangles, one gold necklace, one gold chain, ear ring of gold (jhumki). She admitted that she stated to the police that on 09.9.2007 accused persons obtained his signatures on the five blank cheques of SBI at the point of knife and before taking her signatures on cheques and blank stamp papers accused Sunil committed rape on her while Sonu helped him by holding her legs and accused K.P. torn out SC No. 59/08 State Vs. Leelu Ram etc. Page 19 of 56 her clothes, bite on her both arms. Thereafter, accused Vidya came having a cane containing kerosene oil and accused Neetu was with her and they poured kerosene oil on her and tried to set her on fire but stick of the match box could not lit. She was medically examined in LBS hospital and she told the names of assailants who committed rape on her as Kamal Kishore, Sonu and Sunil. Her clothes were sealed by doctor at the time of her medical examination. Police had also taken into possession plastic can containing kerosene oil. Police arrested the accused Leelu Ram in the same night and she had identified him in the P.S. His arrest memo and personal search memo EX.PW3/B and EX.PW3/C were prepared which were signed by her at point X. She also identified petticoat blouse as the same which were sealed at the time of her medical examination. Clothes were exhibited as EX.P1.
25. PW-10 Kiran deposed that on 09.9.2007 she was studying in class IV. At about 3.30 a.m. in the night she was sleeping with her mother in a room. She heard a noise of cry and voice of Sunil Pandey, K.P. and Sonu. All the accused persons were seen by her when they were taking out her mother out of the room. These persons were giving beating to her mother and she asked them as to why they SC No. 59/08 State Vs. Leelu Ram etc. Page 20 of 56 were giving beating to her mother. Accused Sunil Pandey threatened her to keep quite otherwise her mother would be killed. She was also declared hostile at the request of Ld. APP. During cross-examination conducted by Ld. APP she stated that police came in her house at about 3.30 a.m. and she had given her statement to the police. She had stated to the police that Smt. Vidya and Smt. Neetu were pouring kerosene oil from plastic can upon her mother and then they ran away. She had seen the bite mark on the right shoulder but she did not state this fact to the police in her statement. She had made telephone call to the police on number 100. Firstly her mother was taken to the police station and thereafter she was taken to LBS hospital by the police.
26. It has been argued on behalf of the defence counsel that there was previous enmity between the prosecutrix and the accused person and therefore the testimony of the prosecutix may be analysed with great care and caution.
27. Ld. Defence Counsel relied on a case Ramchit Rajbhar v. The State of West Bengal, 1992 CRI.L.J. 372. It was held by Kolkata High Court that where previous enmity is alleged, the Court has to scan evidence with SC No. 59/08 State Vs. Leelu Ram etc. Page 21 of 56 great circumspection.
28. Ld. Defence Counsel further relied on a case Kishan Lal v. State, 83 (2000) DLT 42. The Delhi High Court observed that:
"Eliminating the evidence of Smt. Saroj (PW 3) there remains the sole testimony of the prosecutrix Kumari Rajani (PW 1). In her evidence in-chief, she has supported the prosecution case but in her cross-examination she has unequivocally admitted that since the appellant had threatened to oust her from his house, she had concocted a false case against him. In my opinion, the aforesaid admission of prosecutrix knocks the bottom out of the prosecution case. Unfortunately, the learned Additional Sessions Judge has over-looked the said admission of the prosecutrix and unjustifiably accepted the prosecution case. However, in view of the aforesaid admission of the prosecutrix, the impugned order of conviction and sentence cannot be sustained in law."
29. On scrutinizing the testimony of the prosecutrix I find that in her cross examination she admitted that accused Vidhya was her tenant in respect of a shop and a civil case for her eviction in pending in the civil court on the ground of non payment of rent. Her second shop is in occupation of accused Sunil Pandey on rent vide rent agreement Ex. PW3/DA. She deposed that her signature were obtained by Sunil Panday prior to the incident. She admitted that Sunil pandey had filed a civil suit in Karkardooma Court for permanent injunction restraining her for one of the shop occupied by him. She also admitted SC No. 59/08 State Vs. Leelu Ram etc. Page 22 of 56 that in her WS filed on 14.08.2007 she alleged that the plaintiff and his associates came to her house and obtained her signatures forcibly on five blank cheques bearing Nos. 833233 to 833237 along with documents and stamp papers. PW 9 deposed on this aspect that during investigation he came to know that there was a dispute between the parties on some money matter. PW 10 daughter of the prosecutrix on this aspect deposed that left shop at ground floor is in possession of the Vidya, the middle shop is in possession of Sunil Pandey and third shop is in possession of her mother in which she has been carrying on business of Milk. DW1 deposed that there were three shops in possession of his Bhabhi PW3 and out of those one shop was in possession of his Bhabhi, another in possession of Sunil Pandey and third was in possession of Vidya. DW8 proved copy of eviction petition filed by the prosecutrix against Sunil Pandey as Ex. DW8/A, WS as Ex. DW8/B, Legal Notice as Ex. DW8/C and proceedings as Ex. DW8/D. On perusal of Ex.DW8/A I find that it is dated 04.11.2008 and Ex.DW8/B is dated 28.02.2009, proceedings dated Ex.PW8/C is dated 04.12.2008. DW9 proved copy of cheque dated 13.05.2008 as Ex.DW9/A; cheque dated 13.04.2008 as Ex.DW9/B; and certified copy of complaint dated 07.01.2010 is Ex.DW9/C. DW10 proved certified copy of cheque dated 16.06.2008 as Ex.DW10/A SC No. 59/08 State Vs. Leelu Ram etc. Page 23 of 56 and another cheque of the same date as Ex.DW10/B. DW11 proved copy of written statement dated 07.05.2008 to the suit titled Sunil Pandey v. Vijay Laxmi as Ex.DW11/A; copy of FIR of the present case dated 09.09.2007 as Ex.DW11/B and copy of complaint of Vijay Laxmi dated nil filed on 16.08.2007 before the DCP as Ex.DW11/C; copy of statement of Vijay Laxmi dated 25.10.2010 made before the Ld. Civil Judge in a civil suit filed by Sh. Sunil Pandey against Vijay Laxmi as Ex.DW11/D and copy of order dated 25.10.2010 is Ex.DW11/E. DW12 proved certified copy of judgment and decree dated 07.10.2010 as Ex.DW12/A and copy of order dated 01.11.2010 of Ld. JSCC/ASCJ as Ex.DW12/B. DW13 proved status report dated 18.02.2010 on the complaint dated 11.09.2007 of Sh. Sunil Pandey filed in the court of Sh. V.K. Gautam Ld. M.M. as Ex.DW13/A. DW14 proved copy of register regarding filing of complaint dated 12.09.2007 as Ex.DW14/A and copy of relevant page showing the entry of complaint of Sh. Sunil Pandey filed on 20.11.2009 as Ex.DW14/B. DW15 proved the copy of agreement executed between Vijay Laxmi and Mother Dairy dated NIL notarized on 30.11.2006 as Ex.DW15/D; certified copy of sales statement for the month of September 2007 as Ex.DW15/E. DW15 also deposed that Smt. Vijay Laxmi did not take milk from mother dairy from 07.09.2007 to 09.09.2007. DW19 SC No. 59/08 State Vs. Leelu Ram etc. Page 24 of 56 proved rent deed as Ex.PW3/DA. On perusal of this deed I find that it is dated 28.02.2007 in between Sunil Pandey and Vijay Laxmi in respect of shop. DW19 also proved declaration deed as Ex.DW3/DX1. On perusal of this document, I find that this is dated 13.04.2007. DW21 inter alia deposed that Sh. Sunil Pandey handed over a cheque of Rs.1,30,000/- to Smt. Vijay Laxmi on 13.04.2007 at 7 p.m. in his presence. DW22 proved copies of various DD entries as mentioned in the Table-A. DW23 deposed that there used to be a quarrel between Smt. Vijay Laxmi and Sunil Pandey on account of some money transaction. His son Dinesh had been suffering from mental illness and he proved documents regarding his treatment as Ex.DW23/A. DW24 stated that his brother had given Rs. 1,30,000/- to Smt. Vijay Laxmi on 13.04.2007 and a declaration Ex.DW3/DX1 was executed. The possession of a shop was given to Sunil Pandey his brother and Vijay Laxmi wanted to sell that shop and for that purpose she wanted that his brother should vacate the shop and on that account there was a quarrel and ultimately his brother was involved in the false case of rape by Smt. Vijay Laxmi. He proved various complaints etc. as mentioned in the Table- A. DW25 proved copy of complaint dated 11.09.2007 of Sh. Sunil Pandey as Ex.DW25/A. Copy of another report dated NIL delivered in the office of DCP on 10.10.2007 as SC No. 59/08 State Vs. Leelu Ram etc. Page 25 of 56 Ex.DW25/C. DW26 stated that on 05.06.2007 Smt. Chanchal paid a sum of Rs.40,000/- to Smt. Vijay Laxmi and a document was executed and she proved that document between Vijay Laxmi and Smt. Chanchal as Ex.DW26/A. This document is dated 05.06.2007. DW27 also deposed on the same document and inter alia deposed that she had also signed it as witness.
30. The evidence on record including copy of complaint of Vijay Laxmi dated nil filed on 16.08.2007 before the DCP as Ex.DW11/C; rent deed dated 28.02.2007 as Ex.PW3/DA; declaration deed dated 13.04.2007 as Ex.DW3/DX1; and declaration dated 05.06.2007 as Ex.DW26/A discussed here in above has established that there was enmity between the parties prior to the date of alleged incident. Therefore, the testimony of the PW 3 Prosecutrix has to be evaluated with great care and caution.
31. It has been argued on behalf of the defence counsel that although corroboration of the allegation of rape is not essential yet it desirable. In support of his arguments, Ld. Defence Counsel on behalf of accused Sunil Pandey, Vidya and Leelu Ram relied on a case State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658. The Apex Court on this aspect observed SC No. 59/08 State Vs. Leelu Ram etc. Page 26 of 56 that:
"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is infact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as it attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Sec.114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception SC No. 59/08 State Vs. Leelu Ram etc. Page 27 of 56 has rightly been taken to the approach of the High Court as it reflected in the following passage:
"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case is would be safe to act on her testimony if there is independent evidence lending assurance to her accusation."
[Emphasis supplied]
32. Ld. Defence Counsel further relied on a case Rameshwar v. The State of Rajasthan, AIR (39) 1952 SC 54. The Apex Court held that:
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be SC No. 59/08 State Vs. Leelu Ram etc. Page 28 of 56 allowed to stand." [Emphasis supplied]
33. Ld. Defence Counsel further relied on a case Madho Ram and another v. The State of U.P., AIR 1973 SC 469. It was held by Apex Court that:
"We are not inclined to accept any of the contentions of Mr. Mulla. The principles that have to be borne in mind by courts when considering evidence of the prosecutrix, have been clearly laid down by several decisions of this court. It has been held that the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the court is of the opinion that it is not safe to dispense with that requirement, it has also been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged."
[Emphasis supplied]
34. Ld. Defence Counsel further relied on a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031. The Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole SC No. 59/08 State Vs. Leelu Ram etc. Page 29 of 56 testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
35. Ld. Defence Counsel further relied on a case Balia alias Balaram Behera and another v. State of Orissa, 1994 CRI. L.J. 1907. It was held by Orissa High Court that:
"It is well settled that the conviction can be maintained even on the sole testimony of the prosecutrix if believed to be true being wholly reliable and in such a case corroboration is not sought for. Corroboration becomes necessary when such evidence is neither wholly reliable nor wholly unreliable. It is in such case, "the court has to circumspect and (sic) look for corroboration in material particulars by reliable testimony, direct or circumstantial." (refer decision AIR 1957 SC 614: (1957 Cri LJ 1000), Vadivelu Thevar v. State of Madras).*** So far as the victim in the rape case is concerned, generally speaking she is not an accomplice. She is the victim of outrage. In such cases corroboration is not essential if her testimony is believed for securing a conviction. But the court normally looks for corroboration of her testimony to satisfy its conscience that she is telling the truth (vide decision reported in AIR 1972 SC 2661: (1973 SC LJ 179), Gurucharan Singh v. State of Haryana, following the decision in AIR 1952 SC 54: (1952 Cri LJ 547); but the SC No. 59/08 State Vs. Leelu Ram etc. Page 30 of 56 nature of corroboration should be such so that it lends assurance that the evidence of the prosecutrix can be safely acted upon (vide decision AIR 1958 SC 143: (1958 Cri LJ 273), and this is not with regard to the act of rape alone but such testimony should be corroborated in some matter to connect the appellants (vide decision 1971 (III) SCC 927). Further, corroboration as a matter of prudence becomes necessary in a rape case since as has been held in AIR 1957 SC 614:(1957 Cri LJ 1000) (supra) that such cases of sexual offences are of exceptional nature since according to the apex court "these cases are, cases in which the oral testimony is by its very nature suspect being that of participators in a crime.*** It is well settled in law that in case of rape and similar offences against females, the fact that the prosecutrix made a complaint soon after the outrage confirms her testimony so as to destroy the fact of consent. This is considered as a corroboration to her evidence in Court. But care must be taken not to consider all previous statements corroborative statements. The circumstance under which it was made the motive and all other facts must be carefully scruitinised in each particular case. The witness may have had sufficient motive for making false assertions. She may have done so with a distinct object of creating evidence. In such cases corroboration of such previous statements would be of varying character dependent upon circumstances of such case and a person may equally and persistently adhere to falsehood once uttered. In the present case, P.W. 1 had a motive to false implicate the appellants. It might have been a case of consent and being exposed she might have resorted to this course.*** Besides, of my own I would like to point out that that there is a reason to believe that P.W.1 had a motive to implicate the appellants and this was because of the vexed issue of nonpayment of dues by appellant Balia inspite of repeated demands for which is must be held that P.W. 1 was harbouring a smouldering bitterness against the appellants.***"
[Emphasis supplied] SC No. 59/08 State Vs. Leelu Ram etc. Page 31 of 56
36. Ld. Defence Counsel further relied on a case Ramcharan v. The State of M.P., IX-1986(3) Crimes 165. The Madhya Pradesh High Court observed that:
"In a rape case, the oral testimony of the prosecutrix particularly when she is a married and grown up woman must be scrutinized with abundant caution and care to ensure that it is not concocted or embellished to any extent.*** Another circumstance, to discredit Mst. Phullibai's oral testimony, is the negative nature of medical evidence. The prosecutrix has stated that she was felled to the ground by the appellant- accused who had also given a tooth bite on her right cheek, but there are no external injuries on the person of the prosecutrix as is amply clear from P.W. 8 Dr. Phuspa's evidence. Therefore, the prosecution story regarding the alleged rape is not free from doubt. As such, the appellant-accused deserved to be acquitted of the offence in question by giving him benefit of doubt.***"
[Emphasis supplied]
37. Ld. Defence Counsel further relied on a case Hari and another v. State of Madhya Pradesh, IX-1988(3), Crimes 63 wherein Madhya Pradesh High Court held that:
"16. Injury on the person of the victims, especially on private parts, and her complaint to her parents, has a corroborative value. Presence of blood and seminal stains on clothes, meeting of hair are such piece of evidence which warrant credence.*** The medical opinion about rape having being committed, is not positive. The doctor had prepared slides, seized the clothes and handed them over to the police. Prosecution has not produced the report of SC No. 59/08 State Vs. Leelu Ram etc. Page 32 of 56 the Chemical Examiner.*** It was entirely the duty of the prosecution to have produced the Chemical Examiner's report.*** It is not for the Court, to search for explanation, which ought to have been afforded by the Investigating Agency.*** The irresistable conclusion in such circumstances would be that the prosecution has failed to produce and place on record a material piece of corroborative evidence.*** Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instance of self-preservation, or when the 'probabilities-factor' is found to be out of time.
In the instant case the evidence of victim suffer from such infirmities and the probabilities-factor rendered their testimony of credence.
24. Prosecution has come out with a story, which is highly improbable.***"
[Emphasis supplied]
38. It has been further argued by Defence Counsel that conviction is not sustainable in cases where the allegation of rape has not been corroborated by medical evidence.
39. Ld. Defence Counsel further relied on a case Suk Bahadur Subba v. State of Sikkim, 1988 CRI.L.J. 1453. The Sikkim High Court observed that:
"6. Medical examination of the victim was conducted by Doctor Tapan Sarbajna (PW-9) on 30.08.85. In his opinion the age of the victim was about 11 years on the date of the medical examination and medical examination disclosed "slight discharge (whitish) around external vaginal orifice"SC No. 59/08 State Vs. Leelu Ram etc. Page 33 of 56
and hymen was intact but "slightly reddened and deep seeded." The vaginal walls were pinkish-red and cervic within normal size with some whitish discharge. Aspiration of whitish discharge and swab were taken in normal saline vials and slides for pathological examination. He proved his report Ex. P-4 where he also stated that there was no mark of physical laceration, contusion or trauma. He could not conclusively suggest whether there was any kind of sexual assault on the victim.
8. It is thus clear that the medical evidence does not support the oral evidence.***
-There is no report of chemical examination about it to support the prosecution's case.***"
40. Ld. Defence Counsel further relied on a case Sanya alias Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784. It was observed by Orissa High Court that:
"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no independent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical evidence is also absent with regard to the opinion as to the fact of rape. For the SC No. 59/08 State Vs. Leelu Ram etc. Page 34 of 56 reasons above the conviction is liable to be set aside."
[Emphasis supplied]
41. Ld. Defence Counsel further relied on a case Om Parkash v. State of Haryana, 1999 CRI. L.J. 94 wherein, the P&H High Court set aside the conviction and one of the ground for setting aside of conviction was that the statement of prosecutrix was not corroborated by the medical evidence.
42. Ld. Defence Counsel further relied on a case Ashwin Jayantilal Shah v. The State of Gujarat, X-1986(3) Crimes 237 wherein, Gujarat High Court observed that:
"Under the circumstances, the only evidence is that of prosecutrix Nirmala and when we find that Nirmala's version suffers from so many infirmities and coupled with the fact that she was used to sexual intercourse we feel that in the instant case it would be hazardous to convict the accused on the solitary testimony of such a prosecutrix.*** We are rejecting the same because the version of the prosecutrix receives negative corroboration from the testimony of the medical expert.***"
43. Ld. Defence Counsel further relied on a case Chidda Ram v. State, VIII-1992(2) Crimes 1142. It was held by Delhi High Court that:
"In the absence of medical report of vaginal and cervical swabs it cannot be said that the petitioner committed SC No. 59/08 State Vs. Leelu Ram etc. Page 35 of 56 sexual intercourse with the prosecutrix on the night of 28th May, 1975. Even otherwise the story given by the prosecutrix after being handed over by the police to her mother does not inspire confidence nor any credence can be attached to the same. Her version vary from stage to stage and from point to point. Therefore, no much reliance can be placed on the testimony of the prosecutrix particularly when there is no corroboration for the same."
44. Ld. Defence Counsel further relied on a case Lachhman and another v. State, 1973 CRI. L.J. 1658. The Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged o have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused it would be most dangerous to base a conviction on her uncorroborated testimony alone."
[Emphasis supplied] SC No. 59/08 State Vs. Leelu Ram etc. Page 36 of 56
45. Ld. Defence Counsel further relied on a case Sakariya v. State of M.P., 1991 CRI.L.J. 1925. The M.P. High Court set aside the conviction and sentence awarded by Trial Court on the grounds inter alia that the Chemical Examiner's repot was negative so far as seminal stains and presence of spermatozoa are concerned, nothing of the sort, was detected on chemical examination.
46. Ld. Defence Counsel further relied on a case State of Orissa and etc. v. Nrusingha Charan Barik, 1990 CRI.L.J. 1676. The Orissa High Court acquitted the accused for the offence of rape observing inter alia that doctor was not categorical in his opinion that deceased was raped before being killed.
47. Ld. Defence Counsel further relied on a case Omi alias Om Prakash v. State of U.P., 1994 CRI. L.J.
155. The Allahabad High Court set aside the order of conviction and inter alia observed:
"The medical report coupled with the statement of the lady Dr. Upreti clearly shows that the girl Km. Suhawati was minor and aged between 10-12 years but she had ceased to be virgin long long ago. Her hymen had been torn and the tears had healed edges. Private parts were smooth and healthy. There was no bleeding and no laceration. The vagina permitted more than one finger. It was used and smooth. She was used to sexual intercourse as the vagina permitted more than one finger easily and it was quite loose. There was no resistance in penetrating the SC No. 59/08 State Vs. Leelu Ram etc. Page 37 of 56 fingers. No laceration was detected. The smear examination as well as spermatozoa examination revealed negative. There was no fresh sign of sexual inter course. This type of condition of the vagina could not be obtained only after 3 or 4 inter courses and that too quite recent."
48. Ld. Defence Counsel further relied on a case Ramcharan v. State of Madhya Pradesh, 1993 CRI. L.J. 1825. The Madhya Pradesh High Court observed that:
"When a grown up and married woman gives evidence in Court that she was raped, it is not proper judicial approach to disbelieve her, if only because of absence of the medical evidence that she was forcibly violated, as may be found in the case of an unmarried virgin girl. A woman will not ordinarily stake her reputation by levelling a false charge of rape which tends to soil her own chastity. If, therefore, a woman comes forward and says that she was raped, her evidence should carry the same weight as is attached to the evidence of an injured person who is victim of violence. She is certainly not an accomplice or even akin to accomplice. She is a victim of crime which has caused her deathless shame. An Indian woman attaches maximum importance to her chastity and would not easily be a party to any move which would jeopardise her reputation and lower her in the esteem of others. Corroboration to the evidence of prosecutrix, albeit a grown-up married woman, is not necessary either as a requirement of law or even as a rule of practice. That is not to say that her evidence even if seemingly incredible and exaggerated should be readily accepted. The test as to whether corroboration is necessary to her evidence lies in the naturalness of the story deposed to by her. If there be any doubt as regards its genuineness, there is need of caution and therefore of corroboration. Corroboration would also be necessary if the evidence discloses that the prosecutrix had a motive to falsely involve the person charged. As already observed, the evidence of the prosecutrix, Mst. Kalia (P.W.2) is all make believe. The SC No. 59/08 State Vs. Leelu Ram etc. Page 38 of 56 story given out by her is unnatural and makes a heavy demand on credulity. It is not improbable that she was falsely implicating the accused having motive against him because her husband wanted the accused to be removed from the post of Chowkidar. It is also not improbable that if at all the accused had sexual intercourse with her, it was with her tacit consent. There is no corroboration by proof of any clear circumstance which may lend assurance that she had spoken the entire truth. It would be proper to give benefit of doubt to the accused."
[Emphasis supplied]
49. Ld. Defence Counsel further relied on a case Zahoor Ali v. State of U.P., 1989 CRI.L.J. 1177 wherein, the doctor who medically examined the prosecutrix could not give any definite opinion about the commission of rape upon her. The Allahabad High Court set aside the conviction and sentence of accused for the offence punishable U/s 376 IPC.
50. It has been further argued by Defence Counsel that in the present case no semen or blood stains were found on the clothes of the prosecutrix and therefore accused are entitled for acquittal.
51. Ld. Defence Counsel relied on a case Sukhram v. The State of Rajasthan, V-1987(2) 187 Crimes. The Rajasthan High Court observed that:
"8. P.W. 6 Dr. Kailash Nath Markandey has stated that on April 5, 1977, he examined Mst. Shanti at about 12.20 SC No. 59/08 State Vs. Leelu Ram etc. Page 39 of 56 noon and found that there was no seminal or blood stains on the pubic hair and on external genitals and thighs.***
-No semen was detected on her Ghaghra. The absence of semen marks on the ghaghra clearly belies the story of rape.***
-On the basis of the discussions of the evidence I disagree with the findings of the learned lower court that Mst. Shanti is a reliable witness.
-Rather the absence of semen and blood marks on her pubic hair, external genitals and thighs belies the theory of rape put forward by her.
9. P.W. 4 Sheoram is her neighbourer and is a very independent witness. He is neither siding with the accused-persons nor he is inimical to the prosecutrix. This witness has stated that he did not see Sukhram there when Mst. Shanti was crying.***
-The case of the prosecution appears to be highly doubtful and, therefore, the accused-appellants deserve acquittal by giving them the benefit of doubt."
52. It has been further argued by the Defence Counsel that accused persons have suceeded in creating doubt in the prosecution case and therefore they are entitled for getting benefit of doubt.
53. Ld. Defence Counsel relied on a case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424. It was held by P&H High Court that:
"7. As to whether the prosecution story as put forth is believable or not, the conduct of P.W. 10 Rajesh is also worth consideration. No doubt, he is a child aged about 11/12 years and it would be risky to rely upon his statement to base conviction of the appellants. Even if it is considered that he could understand what was being done, SC No. 59/08 State Vs. Leelu Ram etc. Page 40 of 56 the least which was expected of him was that he would have also raised alarm when Saroj Bala herself was raising alarms at the time she was being raped.***
9. In view of the statement of Saroj Bala, as referred to above, no manner of doubt is left that the accused persons has resented the visits of Roshan P.W. 11 to the house of Saroj Bala and on that account Roshan P.W. 11 as well as Saroj Bala felt annoyed. It was on that account that the accused have been raped in this case. It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
54. It has been further argued by Defence counsel that there are material contradition in the testimonies of material witnesses. Therefore, the accused persons should get benefit of doubt.
55. Ld. Defence Counsel relied on a case Labh Singh v. State of M.P., IX-1986(3) Crimes 176 wherein, the accused was acquitted for the offence punishable u/s 376 IPC on the ground that there were material contradictions in the prosecution case which were causing doubt on the prosecution story.
56. It has been further argued by Defence counsel that medical evidence has falsified the oral evidence and therefore the prosecution case is not beyond any shadow of doubt.
57. Ld. Defence Counsel relied on a case Mohd.
SC No. 59/08 State Vs. Leelu Ram etc. Page 41 of 56Habib v. State, 1988(2) Crimes 677, wherein central point for consideration before the court was whether the medical evidence falsifies the evidence of the two eye-witnesses as well as of the prosecutrix. Delhi High Court held that medical evidence falsifies the evidence of eye witnesses and the prosecution observed:
"6. There can be no doubt that in a case where ocular evidence inspires confidence and is reliable, it would not be safe to hold that the medical evidence falsifies the testimony of the witnesses. Thus, in the present case, because of the medical evidence which establishes that the rape could not have been committed on the day alleged, the testimony of the eye-witnesses has to be carefully scrutinised.***
16. After giving our careful consideration to the prosecution version, as discussed above, we are of the view that the true picture of the incident is not being disclosed. The medical evidence goes to show that the prosecutrix was not raped on 19th August 1980. As the oral testimony does not inspire complete confidence, we are unable to hold that the prosecution has been able to prove the charges as framed against the appellant. We may notice another fact. According to the medico-legal certificate (Exhibit P.W. 8/B), a swab was taken from the vagina of the prosecutrix. That swab was sent to the chemical examiner for analysis. The reports of the Central Forensic Laboratory, Exhibits P.W. 9/D ad P.W. 9/E do not show that any seminal stain was found there. The underwear of the prosecutrix also did not contain any blood or semen. But that might be because the allegations are that the underwear had been taken off and thrown on the ground. However, the prosecution was expected to seize the frock, which was worn by the prosecutrix at the time of the alleged rape because that could have shown some seminal stains. The underwear of the appellant taken into custody at the hospital also did not show any SC No. 59/08 State Vs. Leelu Ram etc. Page 42 of 56 semen stains. In fact, there is no corroboration at all of the evidence of P.W. 2 and P.W. 3."
58. It has been further argued by Defence counsel that accused persons are entitled to get benefit of those prosecution documents which have not been proved.
59. Ld. Defence Counsel relied on a case Bharat v. State of M.P., III-1992(1) Crimes 880. The M.P. High Court observed:
"5. It is no doubt true that the lady doctor who gave that report could not be produced by the prosecution and the trial Court closed the prosecution's right. In that sense the report, although exhibited as Ex.P.7 in other evidence, could not be said to be proved.
6. With respect to a document which is a prosecution document but remains unproved, the legal position appears to be that the prosecution cannot utilize that document for proof of its story but it would be wrong to deny the defence its usser, if it supports the defence in any manner."
60. It has been further argued by Defence counsel that prosecution case has not been supported by any public person. Therefore the truthfulness of the prosecution case is doubtful.
61. Ld. Defence Counsel further relied on a case Tameezuddin @ Tammu v. State of (NCT of) Delhi, 2009 (4) C.C. Cases (SC) 282. The Apex Court observed that:
SC No. 59/08 State Vs. Leelu Ram etc. Page 43 of 56"6. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.*** As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in Court as witnesses though their statement had been recorded during the course of the investigation. In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co- related to the appellant as his blood samples had not been taken."
62. Ld. Defence Counsel further relied on a case Lalliram & Anr. v. State of M.P., (SC) 2008 [4] JCC 2813. It was held by Apex Court that:
"As rightly contended by learned counsel for the appellants a decision has to be considered in the background of the actual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar's case (supra) it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on higher pedestal then the injured witness.In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value it may search for evidence direct or circumstantial." [Emphasis supplied] SC No. 59/08 State Vs. Leelu Ram etc. Page 44 of 56
63. On scrutinizing and evaluating the testimonies of Prosecutrix PW 3 and her daughter PW 10 and other witnesses I come to the conclusion that prosecution has failed to prove its case against all or any one of the accused persons beyond any shadow of doubt. The reasons which support my conclusion are firstly that Prosecutrix herself failed to support her case. When her statement was recorded she stated that On 09.09.2007 at about 3/3.30 a.m. she was sleeping with her daughter. Three assailants entered into her room. They had taken away all her jewelery and other things. She became unconscious. One of the assailants committed rape on her. She made alarm. On hearing two women came and then she informed the police at 100 number. She became unconscious. She could not identify any of the two women and three men assailants and she could not say if the accused standing in the court were the same persons who had committed rape on her and who poured kerosene oil on her. At the request of Ld. Addl. P.P. she was declared hostile. During cross-examination conducted by Ld. Addl. P.P. she admitted that she made a statement EX.PW3/A to the police bearing her signature at point X. She then gave positive answers to the suggestions. Thus her statement in inconsistent. It is not safe to rely and convict the accused on the basis of her statement. The principles of law laid SC No. 59/08 State Vs. Leelu Ram etc. Page 45 of 56 down in case Pardeep @ Sonu v. State, (supra) relied on by counsel for accused also support this decision.
64. Secondly, daughter of the prosecutrix, who is the only eye witness did not support the prosecution case and did not corroborate the statement of PW 3 prosecutrix on material particulars. She deposed that on 09.9.2007 she was studying in class IV. At about 3.30 a.m.in the night she was sleeping with her mother in a room. She heard a noise of cry and voice of Sunil Pandey, K.P. and Sonu. All the accused persons were seen by her when they were taking her mother out of the room. These persons were giving beating to her mother and she asked them as to why they were giving beating to her mother. Accused Sunil Pandey threatened her to keep quite otherwise her mother would be killed. She was also declared hostile at the request of Ld. APP. During cross-examination conducted by Ld. APP she stated that police came in her house at about 3.30 a.m. and she had given her statement to the police. She then gave positive answers to the suggestions. Therefore, it will be unsafe to base conviction on such a statement.
65. Thirdly, on examination of testimony of PW10, I find that she avoided to answer the material questions. For example she stated that she did not remember how much time police stayed at her house. She could not say SC No. 59/08 State Vs. Leelu Ram etc. Page 46 of 56 whether police officials stayed at her house for 10 minutes or for 10 hours or whether she arrived alongwith her mother at PS at 2 a.m. or 10 a.m. She could not remember whether she told to the police that she heard voice of Sunil Pandey, Kamal Kishore @ K.P. and Leelu @ Sonu or she had seen the plastic cane containing kerosene or what kind of clothes her mother was wearing when she was taken to hospital. In these circumstances, it will not be safe to rely, act upon and convict the accused persons on her statement.
66. Fourthly, the explanation given by the prosecutrix for not telling the true facts to the court on the first date of her examination is that she had received threat from the accused persons that acid will be thrown on her does not appear to be believable because on the date of alleged incident as mentioned in the statement Ex.PW3/A, threat was given to her even than she informed the police as soon as the accused persons left the alleged place of occurrence, as stood established by D.D. Entry 7A dated 09.09.2007, Ex. DW22/C; and D.D. Entry 11A dated 09.09.2007, Ex. DW22/D.
67. Fifthly, in her cross examination prosecutrix stated that she was made to sign on the blank documents SC No. 59/08 State Vs. Leelu Ram etc. Page 47 of 56 and stamps papers outside of room, i.e., shop. There was electric light. She was made to sign on the above documents, i.e., cheque and stamp paper after commission of rape by the accused persons. Sunil Pandey and Kamal had dragged her from room to the shop holding her leg. There were injuries on her hips on both sides from dragging. This statement of the prosecutrix is not trustworthy because in her cross examination her daughter PW 10 stated that all the accused persons were seen by her when her mother was being taken out of the room. Her statement is silent about the commission of rape. The principles of law laid down in case Sanya alias Sanyasi Challan Seth v. State of Orissa, (supra) relied on by counsel for accused also support this decision.
68. Sixthly, although in case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, it was held that rarely a girl or woman in India will make false allegations of sexual assault, yet present case come in exceptional cases. She has, in the present case, strong motive to falsely implicate accused persons. She had lodged a complaint EX. DW 11/C to the D.C.P. on 17.08.2007, i.e., three weeks prior to the date of alleged incident, levelling similar kind of allegations except rape. There is no explanation on behalf of the prosecution or the SC No. 59/08 State Vs. Leelu Ram etc. Page 48 of 56 PW-3 as to why that complaint was not pursued by the prosecutrix.
69. Seventhly, that the place of incident is thickly populated. As deposed by PW-3 electricity light was available there. There was window at the back of the room. One could see the person at the chowk from the window. There was built house left side of her house. The alleged rape was committed in open on first floor. It was a hot summer night. In spite of all these factors none supported the statement of the prosecutrix. Conversely, many inhabitants of the locality including DW-16 and DW-18 deposed that they did not see any incident of rape occurred in her locality. Brother of husband of prosecutrix DW1, even deposed against her.
70. Eighthly, there is no corroboration of commission of rape on the prosecutrix by medial or scientific evidence. PW-3 prosecutrix was medically examined in LBS Hospital vise MLC Ex. PW 8/A. Regarding commission of rape, it was reported that no opinion could be given and all will depend on HPE. In the FSL Report dated 30.05.2008, it has been mentioned that semen could not be detected on blouse, petticot, two micro slides having faint whitish smear, cotton wool swab and stands of SC No. 59/08 State Vs. Leelu Ram etc. Page 49 of 56 hair described as pubic hair. The principles of law laid down in cases Zahoor Ali v. State of U.P., (supra), Sukhram v. The State of Rajasthan, (supra), and Mohd. Habib v. State, (supra) relied on by counsel for accused also support this decision.
71. Ninthly, the statement of prosecutrix to the effect that Sunil Pandey and Kamal had dragged her from room to the shop holding her leg and there weere injuries on her hips on both sides from dragging does not finfd support by medical evidence as in MLC there is no mention about the injuries on her hips. The principles of law laid down in case Ramcharan v. The State of M.P., (supra), relied on by counsel for accused also support this decision.
72. Tenthly, there are many contradictions in the statements of the main witnesses including some on the material points. For example, on the point of visibility of the place of incident, prosecutrix PW3 deposed that there was a window in the room and one can see the place of incident from that window. PW9 deposed that place of incident was not visible from the adjoining houses. In contradiction to his statement PW4 deposed that place of incident was visible from the adjoining houses.
SC No. 59/08 State Vs. Leelu Ram etc. Page 50 of 5673. On the point of place of incident, prosecutrix in her statement Ex. PW3/A stated that rape was committed with him by accused Sunil outside the room i.e. at open place. PW1 Ct. Satvir who was amongst the officials who arrived at the place of incident, soon after the occurrence stated that prosecutrix told him that rape was committed inside the room at first floor.
74. On the point of existence of verandah near the place of incident, PW9 deposed that there was verandah on the first floor where he had recorded the statement. Statements of prosecutrix PW3 and her daughter, PW10 is silent about the existence of verandah near the place of incident.
75. On the point of existence of shops below the place of incident, prosecutrix PW3 and her daughter PW10 admitted that there were shops below the place of incident but PW9 SI Onkar Singh deposed that there was no shop on the ground floor of the place of occurrence. On the point of selling of milk, prosecutrix PW3 deposed that she did not sell the milk on 07.09.2007 and 08.09.2007 but the sold the milk on 09.09.2007 whereas it has been mentioned in the sales statement that she did not sell milk on 09.09.2007.
SC No. 59/08 State Vs. Leelu Ram etc. Page 51 of 5676. On the point of availability of light on the place of incident, prosecutrix PW3 deposed that light was available at the place of incident outside the room. In her contradiction, her daughter PW10 deposed that light was available only inside the room and not outside the room i.e. it was not available at the place of incident.
77. On the point of age of PW10, PW1 deposed that age of daughter of prosecutrix was about 6-8 years. PW3 prosecutrix mentioned age of her daughter on the date of incident as 13 years. PW10 herself deposed her age as 13 years on the date of recording her statement on 03.03.2010.
78. In view of these material contradictions, the prosecution case become doubtful and accordingly, the accused have become entitled to get benefit of doubt. The principles of law laid down in case Labh Singh v. State of M.P., (supra) relied on by counsel for accused also support this decision.
79. Eleventhly, although prosecution has proved disclosure statements of accused Leelu Ram @ Sonu as Ex.PW4/A, Kamal Kishore @ K.P. as Ex.PW12/A & Ex.PW13/C, Sunil Pandey as Ex.PW12/D yet no recovery of SC No. 59/08 State Vs. Leelu Ram etc. Page 52 of 56 robbed articles or knife could be made on the basis of disclosure statements which could have been admissible in evidence u/s 27 of the Indian Evidence Act. Therefore, these disclosure statements are hit by Section 25 of the Indian Evidence Act and are not admissible in evidence.
80. Twelfthly, on meticulous examination of prosecution evidence, I do not find any reliable evidence which could prove that accused Chanchal and Vidya arrived at the place of incident and poured kerosene oil on the prosecutrix or they or either of them attempted to commit murder of prosecutrix by putting her on fire. The investigating officer even failed to recover match box or stick of match box for putting the prosecutrix on fire. PW9 in his examination in chief stated that cane was of white plastic colour in which the kerosene was found whereas on actual examination of cane Ex.P1, its colour revealed as light yellow. Thus, investigating officer even failed to tell colour of case property correctly.
81. Thirteenthly, the investigating officer has failed to join examine any independent person in the investigation of present case for corroboration of the prosecution case. Conversely, the accused persons have examined as much as 27 witnesses to prove their SC No. 59/08 State Vs. Leelu Ram etc. Page 53 of 56 innocence.
82. Fourteenthly, as stated by PW9 Investigating Officer, Crime Team arrived on spot and chance finger prints were taken from spots. PW9 admitted that no chance finger print could be obtained with could have matched the finger prints of accused persons. This also leads to support the defence case and creates doubt in truthfulness of prosecution case.
83. Lastly, it is one of the basic principles of criminal jurisprudence that let the hundred accused may go scot- free without punishment but one innocent person should not be punished. This principle is fully applicable in the present case as the prosecution has failed to prove their case against any one or all of the accused persons beyond any reasonable suspicion or doubt. It would not be just and fair rather it would be hazardous to convict any of the accused persons on the basis of inconsistent, contradictory and unreliable prosecution evidence. The principles of law laid down in cases Sukhram v. The State of Rajasthan, (supra), Ajmer Singh and another v. State of Haryana, (supra), and Sanya alias Sanyasi Challan Seth v. State of Orissa, (supra), relied on by counsel for accused also support this decision.
SC No. 59/08 State Vs. Leelu Ram etc. Page 54 of 56CONCLUSION
84. In view of the above reasons and discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove that accused Sunil Pandey, Leelu Ram @ Sonu and Kamal Kishore @ K.P. in furtherance of their common intention either committed rape on the prosecutrix or caused injuries on her person after tress-passing into her house or robbed her articles/belongings or obtained her signatures on the cheques on the point of knife or accused Vidya and Chanchal entered into the house of prosecutrix with preparation to murder her or attempted to murder her by pouring kerosene oil on the prosecutrix and putting her on fire, beyond any shadow of doubt. Consequently, by giving benefit of doubt to the accused persons, accused Leelu Ram @ Sonu, Sunil Pandey, Kamal Kishore @ K.P., are acquitted for the offences punishable u/s 452/392/397/324/376(2)(g)/506/34 IPC and accused Vidya & Chanchal are acquitted for the offences punishable u/s 452/307/34 IPC.
However, accused persons are directed to furnish their personal bond for a sum of Rs.25,000/- with one surety of like amount as per provisions of Section 437A SC No. 59/08 State Vs. Leelu Ram etc. Page 55 of 56 Cr.P.C. for a period of six months.
85. Accused Leelu Ram @ Sonu, Kamal Kishore @ K.P. and Sunil Pandey are in J.C. They be released forthwith as per rules from the Jail.
86. Previous bail bonds/surety bonds of accused person stand cancelled and sureties stand discharged.
87. After furnishing of personal bond/surety bond, file be consigned to record room.
Announced in the open court on 15.09.2011 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District:KKD Courts:Delhi SC No. 59/08 State Vs. Leelu Ram etc. Page 56 of 56