Delhi District Court
State vs . Shashi on 6 May, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 145/13)
Unique ID case No. 02404R0256322013
State Vs. Shashi
FIR No. : 301/13
U/s : 376 IPC and 3/4 POCSO Act
P.S. : Subhash Place
State Vs. Shashi
S/o Ravi
R/o House no. 100, G block,
Shakur Pur, Delhi.
Date of institution of case 07.09.2013
Date on which, judgment has been reserved 05.05.2014
Date of pronouncement of judgment : 06.05.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that the victim S, came to Delhi, for employment and got attached to placement agency by name of Sameer Enterprises. She was sent to work as a household help to the house of one Deepali Poddar, with whom, she worked for about 10 months and thereafter, she returned back to the office of Sameer Enterprises, awaiting for arrangements for her to return back to her native village. Her salary, which was collected by the agent working for S.C. No. 145/13 : State vs. Shashi : Page 1 of 21 Sameer Enterprises, is also stated to be due and payable to her, which, in turn delayed her departure back to her home. It is alleged that while victim S was staying at the premises of Sameer Enterprises, accused Shashi, one of the co owners of the Sameer Enterprises, committed penetrative sexual assault, upon her on the night of 02.07.2013. The victim reported the matter to the police on 12.07.2013, pursuant to which, the present case was registered against the accused and he was arrested in the case.
During the course of investigations, Victim S as well as the accused were got medically examined and the exhibits collected from them, by the concerned doctor, were seized by the IO and were sent to FSL. The IO also collected age proof of the victim. After completing investigations, charge sheet was prepared and filed in this court.
2. After hearing the arguments on the point of charge, charges for the offences punishable under Section 3 (a) punishable u/s 4 of POSCO Act were framed against the accused Shashi. An alternative charge u/s 376 was also framed against the accused. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined eleven witnesses. Prosecutrix and other public witnesses :
4. The PW3 S. is the prosecutrix in the present case. Her testimony shall be discussed at length in following paragraphs.
S.C. No. 145/13 : State vs. Shashi : Page 2 of 21
5. The PW6, Sh. Kishan Singh is the landlord of the house no. 100, G Block, Shakur Pur, Delhi, wherein in one of the rooms, accused Shashi and his brother Somi used to run a placement agency under the name and style of "Sameer Enterprises. He deposed that he had let out a room at fifth floor of his house to Somi and Shashi @ Rs. 3,500/ per month and that they had been running their placement agency in it since last 3 to 4 years. He further stated that he got the verification of the said tenants done before letting out his premises to them and that after the incident, he got his room vacated from them.
During crossexamination, the PW6 termed it correct that all the room of his house were having iron doors and that there was no security guard in the building/house. He further termed it correct that during the summer season, the residents of fifth floor used to go to sleep on the roof of the house. Formal witnesses
6. The PW2, Sh. Bhupinder Singh, learned Metropolitan Magistrate, Delhi, had recorded the statement of prosecutrix u/s.164 Cr.P.C and proved the proceedings conducted by him in this regard as Ex.PW2/A to Ex.PW2/D i.e. the application filed by IO for recording of statement of prosecutrix as Ex.PW2/A ; the statement of prosecutrix as Ex.PW2/B ; the certificate given by him on the statement as Ex.PW2/C ; and the application filed by IO for supply of copy of the said statement as Ex.PW2/D, respectively.
7. The PW1, HC Ranvir Singh, was posted as Duty Officer at P.S. Subhash Place on 02.07.2013 and he deposed about registration of FIR of the present case. S.C. No. 145/13 : State vs. Shashi : Page 3 of 21 He proved the computer generated copy of FIR as Ex.PW1/A and endorsement made by him on rukka as Ex.PW1/B.
8. The PW9, W/Ct. Pushpa, had joined the investigations of the present case on 07.06.2013 with IO and got the victim child medically examined and deposed regarding the same. She further deposed about the seizure of the samples taken from the victim child and proved the seizure memo of the same as Ex. PW9/A.
9. The PW11, Sh. Ashok Shah is Headmaster of Bal Shiksha Abhiyan School, at Katalguri, PO Banarhat, Distt. Jalpaiguri, West Bengal. The school is stated to be aided by National Child Project Society, under the National Child Labour Project. The PW11 deposed that he was running the above named school for children, who were otherwise working as labourers. He further deposed that the victim child S D/o Late Devanand Lohar, R/o Vill. Katalguri, PO Banarhat was a bonafide student of their school and as per the school record her date of birth was 28.12.1995. He further deposed that since most of the children were working, their team used to go to their work place to bring the children to the school and thereafter, they entered the names of said children in the school record and gave them education and that no admission form etc. was got filled as many times the parents of the children were not available. He proved the photocopy of the relevant entry of the admission register as Ex.PW11/A. He further deposed that after admission of the child in the school, her parents were contacted and they gave him photocopy of the Polio Card of the child, wherein her date of birth was mentioned as 28.12.1995. The photocopy of the office copy of the Polio Card of the child was proved as Ex.PW11/B. S.C. No. 145/13 : State vs. Shashi : Page 4 of 21 Doctor witnesses :
10. The PW5, Dr. Pankaj Shah (also examined as PW9 inadvertently), initially examined the prosecutrix S vide MLC Ex. PW4/A and referred her to SR, Gynae for further opinion and management. He also examined the accused vide MLC Ex. PW3/A and referred him to S.R Surgery for further opinion and management and deposed about the same.
11. The PW3, Dr. Nand Kishore, proved the MLC of the patient/accused as Ex. PW3/A by identifying handwriting and signatures of Dr. Farukh, and deposed that patient/accused was examined by Dr. Farukh, who after examining the patient and gave his opinion regarding the potency of accused, on MLC Ex. PW3/A.
12. The PW4 Dr. Rakhi Thakur, S.R. Gynae, had examined the prosecutrix on 12.07.2013, vide MLC Ex. PW4/A. She deposed that she could not conduct gynecological examination of the prosecutrix as patient refused for the same. IO and Other material police witnesses
13. The PW10, W/SI Sujata, deposed that on 12.07.2013, the victim child 'S' came in the PS alone and got her statement Ex. PW8/A recorded before her and that thereafter, the victim child was made to sit in ladies room in the PS and was got counseled from Ms. Priyanka Chaudhary, Welfare officer from SJPU. The PW10 further deposed that thereafter, she made her endorsement on Ex. PW8/A and prepared rukka Ex. PW10/A and produced the same before PW1/duty officer for registration of FIR. She further deposed about getting medical examination of the S.C. No. 145/13 : State vs. Shashi : Page 5 of 21 victim child conducted at Bhagwan Mahavir Hospital, Pitampura, Delhi through PW7 W/Ct. Jyoti, where, the victim child refused for her gynecological examination and that she collected the MLC Ex.PW4/A of the victim from the hospital. She further deposed that thereafter, she along with PW7 W/Ct. Jyoti, PW8/victim child and Ct. Ravi Dutt went to the spot i.e GBlock, residential area, Shakurpur, Delhi, where the PW8/victim child took them to 5th floor of a house bearing No.100 and pointed out towards a room, where the offence of rape was committed upon her and she (PW10) prepared the site plan Ex. PW8/B at the instance of victim child. She further stated that said room was being used as the office of placement agency being run under the name and style of "Sameer Enterprises" and that at that time, accused Shashi, who was present in the office, was apprehended by Ct. Ravi Dutt. The PW10 further deposed about arrest, personal search and medical examination of the accused and proved his arrest memo as Ex.PW8/C and personal search memo as Ex. PW8/D. She further deposed about getting the statement of the victim child recorded u/s 164 Cr.P.C on 15.07.2013 and proved her application for recording of the statement as Ex.PW2/A and the statement of the victim child u/s 164 Cr.P.C as Ex.PW2/B. She further deposed about getting collected the age proof of prosecutrix, through Ct. Prem Chand, from West Bengal and placing it on the file.
During crossexamination, the PW10 termed it correct that at the time of lodging of the complaint, the prosecutrix had told her age as 18 years and that she had not seized any document from Sameer Enterprises regarding the employment of the prosecutrix. She further stated that she did not cite the constable, who was sent to West Bengal to fetch the school certificate of the victim, as a witness in the case. The witness volunteered to state that concerned H.M had been cited as S.C. No. 145/13 : State vs. Shashi : Page 6 of 21 witness and so constable was not cited as a witness. During her further cross examination, the witness termed it correct that the house, where accused was running his placement agency, was a five storied building having two rooms on each floor and that families were residing in the other rooms of that building and that the landlord of the building was also residing on the ground floor of the said building and that the door of the rooms were made of iron. The witness further termed it correct that incident had taken place in Summer season, but she could not say if the residents of the building used to sleep on the roof during summer season. She further stated that clothes of the prosecutrix were not torn when she (PW10) first saw her and that there was no injury mark on the body of the prosecutrix, when she came to her (PW10).
14. The PW7 W/Ct. Jyoti joined the investigations of the present case with PW10 on 12.07.2013 and deposed about the various investigations conducted by the PW10.
15. After closing of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the allegations of the prosecution and stated that he was innocent and had been falsely implicated in the present case and that he had nothing to do with the offence in the present case. He further stated that prosecutrix had made a false complaint against him only to extort money from him, which his brother had to pay to her. He further stated that as his brother had run away, the prosecutrix pressurized him to give her the due amount and on his refusal, she made a false complaint against him only to extort money. The accused declined to lead evidence in his defence.
S.C. No. 145/13 : State vs. Shashi : Page 7 of 21
16. Arguments have been addressed by learned Amcius Curie for the accused as well as learned Additional PP for the State.
17. Learned Additional PP has contended that in the present case, the accused committed penetrative sexual assault upon a minor girl, aged about 171/2 years and in view of the testimony of PW8 prosecutrix S, prosecution has proved its case beyond reasonable doubt against the accused, and has accordingly prayed that accused be convicted for the charged offence.
18. Learned Amicus Curie for the accused on the other hand has contended that prosecution has miserably failed to prove its case against the accused and that accused is innocent and has been falsely implicated in the present case by the prosecutrix due to a monetary dispute with the brother of the accused. He further stated that the prosecutrix was major at the time of incident and as such, provisions of POCSO Act are not attracted. It is lastly submitted that no such alleged offence was ever committed by the accused and that the entire prosecution case is based on falsehood and it is thus prayed that the accused be acquitted of the charged offence. In addition to oral arguments, learned amicus curie has also filed written submissions.
19. I have heard the arguments put forward by ld. Addl. PP as well as learned Amicus Curie for accused Shashi and have carefully gone through the record of the case as well as written submissions filed on behalf of accused. I have also carefully considered the evidence adduced by the prosecution in support of its case. S.C. No. 145/13 : State vs. Shashi : Page 8 of 21
20. In the present case, the alleged incident is stated to have taken place on the night of 02.07.2013 at the office of Sameer Enterprises. The matter was reported to the police on 12.07.2013, after about 10 days of the incident. The victim is stated to be a minor girl aged about 171/2 years. Since, the accused has been charged u/s 3 (a)/4 of the POCSO Act, it would be relevant to consider the documents of age relied upon by the prosecution, to prove that victim S was less than 18 years of age as on the date of commission of offence.
21. In order to prove that the victim S was a "child", less than 18 years of age, at the time of the incident, the prosecution has examined PW11 Sh. Ashok Shah, who produced record from Bal Shiksha Abhiyan School. The PW11 deposed that as per school record, the date of birth of the prosecutrix was 28.12.1995. He also deposed that most of the children in the area of their school, were working and hence, their team went to the work place of said children and brought them to school, entered their names in school record and gave them education and that no admission form etc, was got filled as most of the times, the parents of the children were not available. The PW11 produced original admission register of the school, wherein the entry pertaining to victim child S was found entered at serial no. 50 and the photocopy thereof was placed on record as Ex. PW11/A. The PW11 further deposed that after admission of the child in the school, her parents were contacted and they gave PW11 a photocopy of the polio card of the child i.e. Ex. PW11/B, wherein her date of birth was mentioned as 28.12.1995. During his cross examination, the PW11 termed it correct that the office copy of the polio card Ex. PW11/B, was neither attested by him, nor by the parents of the child. The PW11 S.C. No. 145/13 : State vs. Shashi : Page 9 of 21 volunteered to state that the father of the child had already expired and her mother was illiterate and was further hard of hearing and hence, the polio card was not got attested. He also stated that in cases of children, whose document of birth were not available, they mentioned the age of the child by approximation in their record. The PW11 termed it correct that the polio card of the child had been collected by them later on. He however, denied that the age of the child S had already been mentioned by approximation in their record before obtaining her polio card. He volunteered to state that the date of birth of S was entered in school record after obtaining her polio card.
22. The ld. Addl. PP has contended that from the record produced by PW11, the prosecution has succeeded in proving that the victim child S was aged about 171/2 years at the time of incident.
23. On the other hand, ld. Amicus Curie for the accused has contended that the record produced by PW11, cannot be relied upon, since the polio card, on the basis of which, date of birth of victim child S was entered in the school record, could not be proved to be that of child S more particularly, since, it was not attested/countersigned/thumb impressioned by either of the parents of the victim child to certify that it was correct as per the original polio card and hence, the same cannot be taken to be the correct proof of date of birth of the victim child. It is also contended that the date of birth of the child S has been mentioned by approximation in record produced by PW11 and that she was above 18 years of age as on the date of incident and that the prosecution has failed to prove that victim was a minor child at the time of incident S.C. No. 145/13 : State vs. Shashi : Page 10 of 21
24. I find considerable force in the submissions made by ld. Amicus Curie. This is more so, as the record produced by PW11 i.e. admission register Ex. PW11/A does not find mention of name of either of the parents or address or any other particulars of the child "Sima Lohar" against the entry number 50. It is seen that there is a specific column for father's name in the admission register produced by PW11, but the said column has been left blank in the entry pertaining to the victim child S. As per the particulars mentioned in the charge sheet, the name of the father of the victim child S, is Devanand, which is not reflected in photocopy of the polio card i.e. PW11/B. Thus, in absence of the said polio card being attested/countersigned/thumb impressioned by either of the parents of the victim child S and/or by PW11 and/or the school authorities, it cannot be concluded that polio card Ex. PW11/B pertains to the victim child S only, especially when, several other children whose names are seen entered in photocopy of admission register Ex. PW11/A are having surname/caste of "Lohar" mentioned against their name. In these circumstances, the record produced by PW11 cannot be relied upon to draw a conclusion that the victim child S was less than 18 years of age as on the date of commission of offence. I am supported in my view by the judgment in the case of Birdi Mal Singhavi vs. Anand Purohit, 1988 Supp. SCC 601, wherein it was held that no evidentiary value can be given to "Date of Birth" entry in absence of material on which entry is made.
25. There is no other document placed on record by the prosecution to prove that prosecutrix was less than 18 years of age as on the date of the incident. Since, the prosecution has failed to prove that prosecutrix was less than 18 years of age at the S.C. No. 145/13 : State vs. Shashi : Page 11 of 21 time of incident, the provisions of POCSO Act are not applicable to the instant case. Whether the accused had committed rape upon the prosecutrix :
26. The next issue which arises is whether the accused had committed rape upon the prosecutrix without her consent and against her wishes on 02.07.2013, at mid night, at the office of Sameer Enterprises, 5th Floor, Shakurpur, Delhi. In order to prove its allegations, the only witness examined by the prosecution is the prosecutrix herself.
27. The incident in the present case, is stated to have taken place on the night of 02.07.2013 and was reported to the police on 12.07.2013 by the prosecutrix herself, by filing complaint Ex. PW8/A, wherein, she stated that she had come to the office of Sameer Enterprises, Shakur Pur, with her relative Babloo about a year back, for employment and had worked for about 10 months with one Deepali Dabas. On 09.06.2013, she left her work and returned back to office of Sameer Enterprises. The prosecutrix alleged that on the night of 02.07.2013, when she was sleeping in the office of Sameer Enterprises, accused Shashi entered the said room in an intoxicated condition. He further shut her mouth and forcibly raped her. The victim S did not report the matter to anyone, out of fear, but later on, she mustered courage and reported the matter to the police.
28. The victim was produced for her statement u/s 164 Cr.P.C before ld.M.M on 15.07.2013 and her statement Ex. PW2/B was recorded, wherein she stated that she had come to Delhi to work about a year ago with her brother Babloo and that she had left her house of her own free will, for going to Chandigarh and that on the S.C. No. 145/13 : State vs. Shashi : Page 12 of 21 way at Beer Pada, Bengal, she met Babloo. She further stated that she had already worked for two years in Punjab and that Babloo brought her to Delhi and left her at the office of Sameer Enterprises, from where, she was sent for work at Autrem Lines and she worked there for about 10 months. She further stated that though, she was paid her monthly salary at the said place, the same was taken by persons from Sameer Enterprises. She further stated that she wanted to return back to her home, after taking her money and so, she left her work and returned to the office of Sameer Enterprises, but despite her repeated requests, she was not paid her money by Shashi i.e. the accused and hence, she (prosecutrix) continued to reside at the office of Sameer Enterprises. On 02.07.2013, at about mid night, accused Shashi came to her room in an intoxicated condition and did Jabardasti with her and that at that time, he turned on the sound of the television at high volume, due to which, her cries could not be heard outside. Later, accused left her and went off to sleep upstairs. The victim stated that she wanted to get back her money, but she could not file a complaint and on 12.07.2013, she herself went and filed the complaint with police. She stated that she wanted to take back her money and return to her home.
29. The prosecutrix S was examined as PW8 before the court and in her testimony, she deposed as under : "We are three brothers and sisters including myself besides my mother. My father has expired 4 - 5 years ago. My mother was working in tea garden at West Bengal. I have studied upto 4th class in a primary school of my village. I was born in the year of 1995 but I do not remember the date and month of my S.C. No. 145/13 : State vs. Shashi : Page 13 of 21 birth.
One year prior to the incident, I came to Delhi with Bablu, who was related to me remotely and had worked as agent for Sameer Enterprises at Shakurpur, Delhi, a placement agency. I was employed as maid servant at Autrem Lane at the house of Pradeep Dabas and Deepali Dabas. I worked there for about 10 months. I used to give my salary to one Swami (Somi), who got employment for me and was working in Sameer Enterprises. Accused Shashi is real brother of Swami. (Somi) On 09.06.2013, I left my job after talking to Deepali Dabas and came back to the office of Sameer Enterprises. I stayed in the said office and in the midnight of 02.07.2013 when I was sleeping all alone, accused Shashi entered in the room of office and he forcibly committed rape upon me. He was under
the influence of liquor at that time. While watching the television, I went to sleep and the television was on at the time when accused entered in the room. I raised alarm but as television was playing at loud volume, no one could hear my alarm. I got scared of the incident, but I could not tell about the same to anyone. The brother of accused was not present in the office as he had gone to his native village. On 12.07.2013, I could gather courage and I myself went to the PS and lodged a report against the accused. ....."
The PW8 proved her complaint and further deposed about being S.C. No. 145/13 : State vs. Shashi : Page 14 of 21 taken for her medical examination and her refusal for her gynecological examination. The witness also deposed about pointing out of the place of occurrence to the police and about arrest of the accused at her pointing out. She also proved her statement u/s 164 Cr. P.C as Ex. PW2/B. The witness duly identified the accused.
30. During her crossexamination, the PW8 deposed as under : "I cannot tell my age at the time when I firstly got admitted in school. I cannot tell my exact age when I left my school. Vol.
Probably it was about 12 - 13 years. It is wrong to suggest that I was major at the time when I came to Delhi for job or that my family members did not object to my coming to Delhi for work as I was major. I had not given any documents regarding my age, school, etc. to the placement agency when I went there. Vol. The placement agency people themselves mention the age as 18 - 19 years. I had told my age as 14 years to the placement agency. Sameer Enterprises was run by Somi and accused Shashi. It is wrong to suggest that accused Shashi was not running this placement agency or that he was working there as a driver.
It is correct that for the last 8 to 10 months prior to the incident, I did not work at any place. It is correct that at the office of Sameer Enterprises also I was not doing any work. Vol. I was about to leave for home after taking my salary. Ali, an employee of Sameer Enterprises, and his wife were living in the adjoining room of the office of Sameer Enterprises. The room of accused Shashi is S.C. No. 145/13 : State vs. Shashi : Page 15 of 21 situated on the fifth floor of the same building. It is correct that there were two rooms on each floor of the building. It is also correct that in other rooms of the building families were residing. It is correct that I was on visiting and speaking term with the wife of accused prior to the incident. It is correct that there is no security guard of the building where the office of Sameer Enterprises is situated. It is correct that due to summer season, most of the tenants of the building used to sleep on the roof of the said building. It is correct that all the rooms of the said building were of iron.
Accused Shashi used to visit my room for taking food. On the day of incident I did not close the door as I slept while watching television. On that day, wife of accused Shashi was not present in her room. It is correct that the stairs of the building were situated adjoining my room. It is correct that at the time of incident I raised alarm on seeing accused. It is also correct that my clothes were torn during scuffle with accused.
I knew Somi, the owner of placement agency, for the last one year prior to the incident. It is also correct that Somi went to Bengal some months prior to the incident. It is correct that Somi had to pay me Rs.35,000/ as my salary used to be deposited with him only. I have heard the names of Pratap and Silvina, who were friends of Somi. It is correct that I, Somi, Pratap and his wife Silvina used to go for movies and outings. Somi had also proposed me for marriage and I had accepted his proposal. It is correct that Somi had talked to my family members regarding our marriage. It is S.C. No. 145/13 : State vs. Shashi : Page 16 of 21 correct that Somi was also residing in the same room i.e. the office of Sameer Enterprises. I was staying at the said office since 1 - 2 months prior to the incident.
It is correct that after the incident I had not told about the incident to the landlord, wife of accused Shashi or to anyone. Vol. I was scared as there was no one to look after me and support me. I did not tell about the incident to Bablu also with whom I came to Delhi. Vol. He was not residing in Delhi that is why I had not told about the incident to him. It is correct that I had not informed my family members about the incident. It is wrong to suggest that I had not informed my family members as no incident as alleged took place. It is wrong to suggest that as Somi has not given my money, I had threatened him either to pay my money or I will implicate him in a false case. It is correct that I had asked accused Shashi for my money i.e. Rs.35,000/ and accused Shashi has refused to give the same. It is wrong to suggest that I have falsely implicated the accused Shashi as he had refused to pay my money or that I had falsely named him only because to extort my money from him.
I am not aware if my marriage talks with Somi were known to other tenants of the building or not. It is wrong to suggest that I had refused for my internal medical examination as I am aware that there will be no finding as no incident as alleged by me ever took place. It is correct that I have stated in my statement u/s. 164 CrPC to learned MM Ex.PW2/B that I want to go back home after taking my money. It is wrong to suggest that accused Shashi S.C. No. 145/13 : State vs. Shashi : Page 17 of 21 was falsely implicated in the present case as his brother Somi had run away without giving my money or that he was untraceable at that time. It is wrong to suggest that no such incident took place with me.
It is correct that I had not told about the incident to anyone from 02.07.2013 to 12.07.2013. It is wrong to suggest that I had not disclosed about the incident to anyone as no incident had ever took place. It is wrong to suggest that I am deposing falsely......... "
31. From the above mentioned statement of prosecutrix i.e. her complaint Ex. PW8/A, her statement u/s 164 Cr.P.C Ex. PW2/B and her testimony and cross examination recorded as PW8, it is seen that the prosecutrix, despite her young age, had ventured out of her home at an early age to earn living and to support her family. She was comfortable in travelling alone and had already worked in Punjab for about 2 years and was going to Chandigarh, when she met one Bablu and came with him to Delhi to the office of Sameer Enterprises to seek employment at Delhi. The prosecutrix was capable of taking decisions about herself of her own, as is evident from the fact that she left her employment at Delhi and returned back to the office of Sameer Enterprises, when she decided to return back to her native village. Further, from the crossexamination of prosecutrix, it is apparent that the prosecutrix had been staying at office of "Sameer Enterprises" for some time and was familiar with everyone there i.e. accused Shashi and his wife ; Somi, brother of the accused and Pratap and Silvia, friends of Somi. Rather, the prosecutrix appears to be enjoying the status of a family member in set up of "Sameer Enterprises", since, she had been going out to watch movie etc. with Somi, brother of the accused and his S.C. No. 145/13 : State vs. Shashi : Page 18 of 21 friends Pratap and Silvia. The prosecutrix has further admitted that she had been proposed for marriage by Somi, brother of the accused and that she had accepted his proposal and said Somi had even talked to parents of prosecutrix for marriage. The prosecutrix was also well acquainted with the wife of the accused and used to talk to her. In these circumstances, the delay of ten days on the part of prosecutrix to report the matter to the police does not stand explained. I am supported in my view by judgment in case of Thulia Kali vs. The State of Tamil Nadu, 1972, Crl. L.J. 1296 (V 78 C 333), wherein it has been held that : "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report 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 the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in loading of the first information report should be satisfactorily explained. ..." S.C. No. 145/13 : State vs. Shashi : Page 19 of 21
32. In the present case also considering that the prosecutrix was no stranger in the set up of "Sameer Enterprises" and had been staying there for sometime and was even otherwise familiar with other people staying there or working there and knew the area near the office of "Sameer Enterprises" well, the delay in lodging of FIR does not stand explained at all. The delay in reporting the matter to the police as well as the other facts, which are borne out from the testimony of the prosecutrix viz the fact that the victim was having monetary dispute with Sameer Enterprises, run by Somi, brother of accused, as the salary which accrued to the prosecutrix, during her employment at Delhi, had been taken by agent of Sameer Enterprises and the fact that on the one hand, Somi, brother of accused, had proposed to prosecutrix for marriage, but on the other hand disappeared 23 months prior to the incident, without giving the money due to prosecutrix to her, due to which, the prosecutrix was compelled to demand said money from accused Shashi, made it desirable that the statement of prosecutrix be corroborated by some independent evidence, however, it is not so in the present case. There is no witness examined by the prosecution to prove that on the day of the incident, accused had consumed liquor or that there was a television in the office of Sameer Enterprises, as stated by the prosecutrix. The MLC of the prosecutrix also does not support the allegations of rape as prosecutrix had herself refused for her medical examination. There is no explanation forth coming from prosecutrix as to why, she refused for her gynecological examination. In fact, the testimony of prosecutrix, in the present case, does not stand corroborated by an independent ocular or documentary evidence on record. This coupled with unexplained delay in lodging of FIR and monetary dispute between prosecutrix and Sameer Enterprises, a placement agency run by accused and/or his brother Somi, create doubt as to the genuineness S.C. No. 145/13 : State vs. Shashi : Page 20 of 21 of the case put forth by prosecution and accused is entitled to be given benefit of doubt in the present case.
33. I am supported in my view by judgment in a case cited as Jai Krishna Mandal & Anr. Vs. State of Jharkhand, (2010) 14 SCC 534, wherein it has been held that : "The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
34. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has failed to prove its case against the accused, beyond the reasonable doubts. Accordingly, I acquit the accused Shashi from the charged offence.
35. File be consigned to Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 06.05.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 145/13 : State vs. Shashi : Page 21 of 21