Delhi District Court
State vs . on 20 April, 2010
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER), ROHINI
COURTS, DELHI
SC NO.42/10
FIR NO.306/05
PS Uttam Nagar
State
Vs.
Rajiv Kumar Puri
s/o Sh. Puran Chand Puri
r/o H.No.138/13, Gurudwara Road,
Pehawa, District Kurukshetra (Haryana)
Date when case reserved for judgment : 07.04.2010
Judgment pronounced on : 20.04.2010
JUDGMENT:
1. The accused has been sent for trial on the allegations that on 7.4.2005, one Ms. Babita w/o Sh. Sanjeev Puri gave a complaint in writing to the effect that she was residing along with her son at Bharat Garden, Uttam Nagar, Delhi and that on the previous day at about 8 or 8.30 p.m the elder brother of her husband namely Rajiv Puri @ Nitu came to her house and he was offered tea etc who refused and asked for water, which was accordingly given to him and thereafter he took out a bottle of whiskey from his bag and started consuming the same but she did not object to the same as he used to take liquor daily at his house and at about 12.15 a.m, he asked to sleep in her house as he was having some work at Delhi in the morning and on this she offered him the bed in another room in which he slept after taking food and she went to her own room to sleep and at about SC No.42/10 Page 1/17 2.30 a.m she realized that someone was lying on her bed and that when she noticed, she found her said brotherinlaw namely Rajiv lying in her bed and she sat down immediately on which he took out a knife and placed the same at her neck and threatened her not to raise voice otherwise she would be killed due to which she became afraid of and was stunned and he, showing the threat of the knife, lifted her nighty up and put off her underwear and committed rape with her without her consent and that as she was frightened, she bore all the said things and he left before the sunrise along with his bag and she kept on weeping and due to feeling ashamed and due to earning bad name to the family, she did not tell anything to any one and thereafter she gave a telephonic call to her brother and brother's wife and to mother also and when she could not control the mental disturbance, she had come to the police station and reported the matter to the police.
2. On the basis of the said statement, the FIR was got registered and thereafter her statement was also recorded by the concerned Magistrate u/s 164 Cr.PC and was medically examined and her undergarments as well as vaginal swabs were sealed and sent to the FSL. The accused was arrested in the case and was medically examined.
3. My Ld. Predecessor, vide his order dated 3.8.2005, framed the charge against the accused u/s 376/506II of the IPC to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined 15 witnesses out of which the relevant witnesses have been discussed below. Thereafter the statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and produced 7 witnesses in his SC No.42/10 Page 2/17 defence besides documentary evidence.
5. I have heard Ld. APP for the state and Ld. Counsel for the accused.
6. In this case, the then Ld. APP Sh. Vinod Kumar Sharma, vide his statement dated 15.9.2005 dropped the witness Sushma, vide his statement dated 6.10.2005 dropped the witness Ct. Ranbir Singh and vide his statement dated 23.11.2005 given up the witness Mayur being unnecessary.
7. The prosecutrix has appeared as PW1. She deposed the facts on the lines of the said complaint, as reproduced above, which she proved as Ex.PW1/A and she also proved the seizure memo of her undergarments as Ex.PW1/B and her statement recorded by the Magistrate as Ex.PW1/C and exhibited her underwear as Ex.P1 which she was wearing on the night of the rape.
8. In her cross examination, the prosecutrix has admitted that she is also known by the name of Heena and that she was running a musical group and in the days of deposition, she was working as a commission agent in a factory. She admitted it as correct that in the year 1994, one FIR was registered against her, her mother and her brother u/s 376/366/354 IPC at PS Thanesar but she was not convicted in that case and the photocopy of the FIR was marked as PW1/DA. She again said that she was convicted in the said case by the Sessions Judge and they had preferred an appeal which is pending before Punjab and Haryana High Court. The prosecutrix further admitted it as correct that one case against her and her mother was registered u/s 3,4,5 and 7 of the Immoral Traffic Prevention Act at PS Thanesar, Haryana but she did not know as to what happened to the said case. She admitted it as correct that her photo SC No.42/10 Page 3/17 was published along with her mother and one girl Jyoti in the newspaper when the said case under the Immoral Traffic Prevention Act was registered.
9. In her further cross examination, the prosecutrix answered that she was married to Sanjeev Puri, the younger brother of the accused, on 14.6.1988 at Karnal, Haryana. She denied the suggestion that name of her husband was Sandeep and not Sanjeev Puri. She volunteered that Sandeep was like her younger brother who was also falsely implicated in the said case at PS Thanesar. She denied that she had filed any case against Sandeep in the court of Sr. Sub Judge, Kurukshetra for declaration and permanent injunction. She admitted her signatures at point A on Ex.PW1/DB. She denied the suggestion that she married Sandeep on 6.4.1994. She did not know as to whether she filed the appeal no.232/2001 in the court of Sh. A.K. Verma, Sessions Judge, vide Ex.PW1/DC.
10. The prosecutrix, in her further cross examination, has replied that accused Rajiv used to visit her house twice or thrice in six months and that there was no telephone at her residence and that she stayed in 19B2, Uttam Nagar, for 23 months and at the time of deposition, she was residing near Shukkar Bazaar, Uttam Nagar, but she could not tell her house number. She admitted that prior to Uttam Nagar, she was residing at Chirag Delhi. She denied the suggestion that as there was a criminal record with the police of Chirag Delhi, that was why she shifted to Uttam Nagar. She answered that at the time of incident her mother was residing at Solanki Road along with his brother and was not having any telephone at the said residence and her mother had shifted to Uttam Nagar about 23 SC No.42/10 Page 4/17 years back. She further replied that she was having a mobile phone number 9812016869 and telephone number of her brother was 9350104922. She further replied that her mother and brother's wife came to her after receiving the call and advised her not to make complaint to the police but as she could not bear the agony, she lodged the complaint. She did not call any neighbour after the incident nor her mother and brother's wife raised any alarm and did not call any person from the neighbourhood due to shame and respect. She further answered that she did not call her brother and father on that day. She further replied that during the day time before going to the police station in the evening, they had kept on discussing the matter and her mother and brother's wife were not in favour of lodging a complaint but when she kept on crying, they decided to lodge the complaint. She has categorically admitted that her husband has not sent a single penny since he left Delhi and the accused has also not helped her financially at any point of time nor she asked the accused to help her financially. She further replied that her marriage with Sanjeev Puri was solemnized in the temple and there were photographs to that effect and that Sanjeev Puri went to Italy in 1990 and since then he has not met her and she was also not having any contact with him for about 6 years. She denied the suggestion that she was not married to Sanjeev Puri. She further answered that she was having relatives living in Village Pehwa where the accused also lives. She denied the suggestion that she was blackmailing the accused and his family members in the name of Sanjeev Puri to extract money from them and that no rape was committed by the accused on the night intervening between 6.4.2005 and 7.4.2005. She further denied the suggestion that accused never visited her house on SC No.42/10 Page 5/17 6.4.2005, as alleged.
11. The prosecutrix in her further cross examination has answered that accused might have stayed at her residence for 8 or 10 times after her marriage and before the date of incident and he never had a drink/liquor at her house when he stayed earlier. She further admitted that accused was taking liquor sitting in another room nor in her bedroom. She further answered that the accused slept in a room which is on the right side of entrance to the house and that no light was on in the room where she was sleeping and that the door of the room was not bolted or locked from inside where she was sleeping and that the door was just shut. She further answered that the incident was of 2.30 a.m. She further answered that the accused was drunk when he came on her bed and the accused had taken the knife with him when he left the house and the knife was not recovered by the police. She was confronted with her statement before the magistrate Ex.PW1/C where time 2.30 a.m was not found recorded. She further answered that she tried her best to save her honour and moved her hands and legs and that accused after committing rape, went to another room and that she kept on weeping in her room and that was why she did not know as to when the accused left the house but the accused left the house before sunrise. She further answered that accused had kept the knife on one side and with one hand he removed her underwear and at that time his one hand was on his mouth and that the underwear was thrown in the room itself which was found by her in the room in the morning and that at the time of committing rape, the accused was not having knife in his hand nor her mouth was pressed by him. She denied the suggestion that she along with her mother was in the business of SC No.42/10 Page 6/17 prostitution.
12. Remaining witnesses of the prosecution had just corroborated the story of the prosecutrix in one manner or the other such as PW2 Ct. Rekha took her to the hospital for medical examination and received parcels and sample seal of the hospital which she handed over to the IO and the same were sealed vide seizure memo Ex.PW1/B. PW3 Ct. Rich Pal took the accused to the hospital for his medical examination and some parcels and sample seal of the hospital were handed over by him to the IO which were seized vide seizure memo Ex.PW3/A. PW4 Smt. Hardevi is the mother of the prosecutrix who deposed about receiving the information from the prosecutrix about her rape and thereafter reaching to the house of the prosecutrix and in her cross examination, she denied to have been convicted for the offences u/s 366/354/376 IPC vide FIR no.179/94, PS Thanesar and she further replied that she was falsely implicated in case FIR No.184/94 u/s 3,4,5 and 7 of the ITP Act. She further replied that MTNL telephone connection was not installed at her residence nor she was having mobile phone. She further contradicted the prosecutrix by answering that the complaint was reduced to writing by the police official at the PS on the statement of her daughter Babita whereas prosecutrix alleged in her deposition that she wrote the complaint herself. PW5 Ct. Naseeb Singh joined the investigation at the time of the arrest of the accused vide memo Ex.PW5/A and personal search of accused was conducted vide memo Ex.PW5/B. PW6 ASI Sarita deposited the exhibits of the case with the FSL Rohini. PW7 Dr. Rajender Kumar is the Sr. Scientific Officer from FSL Rohini who proved the reports Ex.PW7/A and Ex.PW7/B. PW8 ASI Bal Kishan was the Duty Officer who recorded the SC No.42/10 Page 7/17 FIR and copy of the same is Ex.PW8/A and he also proved his endorsement on the complaint which is Ex.PW8/B. PW9 HC Banwari Lal was the MHC(M) who deposed about the exhibits deposited with the Malkhana and sending the same to FSL Rohini and proved the relevant entry of register no.19. PW10 is the concerned MM who recorded the statement of the prosecutrix u/s 164 Cr.PC. PW11 ASI Roop Parkash is the part IO of the case who arrested the accused and got his medical examination conducted. Inadvertently the number PW11 was again given to the witness Dheeraj who is the brother of the prosecutrix and deposed about the arrest of the accused. In his cross examination, said brother of the prosecutrix admitted that the case u/s 366/376 IPC was registered against him, the prosecutrix and their mother and one Sandeep and they were convicted in the said case. He further admitted that a criminal case for Immoral Trafficking was registered at Haridwar against her mother and her sister, the prosecutrix, wherein both were acquitted. PW12 WASI Mukesh is the IO of the case. PW13 is Dr. Babita Garbiyal who proved the MLC of the prosecutrix as Ex.PW13/A. PW14 Dr. Uday Kumar Singh proved the MLC of the accused as Ex.PW14/A. PW15 is the Dr. Poonam Aggarwal who identified the signatures of Dr. Dipti as Ex.PW15/A on the MLC of the prosecutrix and as Dr. Dipti had conducted internal examination of the body of the prosecutrix.
13. The accused has produced the defence witnesses. DW1 HC Pooran Singh of PS Ambedkar Nagar proved the copy of the FIR No.179/94 dated 24.6.1994 u/s 354/366/376 IPC, PS Thanesar, Distt. Kurukshetra, Haryana and FIR No. 184/94 dated 27.6.1994 u/s 3,4,5 and 7 ITP Act, PS Thanesar, Distt. Kurukshetra. DW2 is the official from the SC No.42/10 Page 8/17 office of D.C Kurukshetra who has brought the case file of suit No.250/94 titled Babita Vs. Sandeep and proved the 21 pages of the said civil suit as Ex.DW2/A. DW3 is the Constable of PS Thanesar, Haryana who produced the original record of FIR no.179/94, PS Thanesar, Kurukshetra, Haryana, u/s 354/366/376 IPC against the prosecutrix, her mother, brother and one Sandeep and proved the copy of the same as Ex.DW3/A and FIR no.184/94 as Ex.DW3/B and he further deposed that the prosecutrix and her mother have been convicted on 24.4.1996 in FIR no.179/94 and the address given by the prosecutrix was H.No. 2/224, Dakshin Puri, Delhi and the prosecutrix has shown herself in the said case as the wife of one Sandeep. He has further deposed that in FIR no.184/94, the prosecutrix has been shown as the wife of Sanjay Kumar r/o 2803, Chandini Chowk, Delhi. DW4 is the Nodal Officer of M/s Reliance Communication who proved the record of mobile phone no.9350104922 as Ex.DW4/A and residential proof of the customer as Ex.DW4/B, transfer of the said mobile in the name of one Dheeraj Kumar vide documents Ex.DW4/C and Ex.DW4/D and print out certified copy of the ownership of the said mobile number as Ex.DW4/E and further identity proof of one Sopali as Ex.DW4/F. DW5 is the son of the prosecutrix namely Mayur Puri whose statement has been discussed in detail by me below. DW6 is the wife of the accused who deposed about the presence of the accused on the day of incident at Village Pehwa, Kurukshetra and she also proved the register whereby the daily collection of money was recorded by the accused for his icecream factory as Ex.DW6/A and she also proved the photograph in a newspaper of the prosecutrix and her mother as Ex.DW6/B. DW7 is the Nodal Officer of M/s Idea Cellular Limited who proved the certified copy of SC No.42/10 Page 9/17 subscriber's form along with residence proof/identity proof pertaining to mobile no.9812016869 belonging to one Sher Singh as Ex.DW7/A.
14. DW5 Mayur Puri, the son of the prosecutrix has deposed that photographs Ex.DW5/A to Ex.DW5/C in the court file are depicting his mother i.e the prosecutrix at point X and the person along with his mother i.e the prosecutrix, in the said photographs at point Y is one Sandeep who is known to him and said Sandeep was residing with him and his mother in the year 2005 and in the year April 2005, all the said three persons were residing at 19B/2, Bharat Garden, Uttam Nagar. DW5 has further deposed that on 6.4.2005, he was present at his house along with his mother and Sandeep and that no one had come on that day to their house and that he can identify the accused as he is the elder brother of his father and accused had never come to his house on 6.4.2005 or prior and after the said date. He has further deposed that they resided at Uttam Nagar house for 34 months only and prior to that they were residing at Chirag Delhi and thereafter they shifted to the present address. He further testified that at the time they were residing at Uttam Nagar, Delhi, his maternal grand father and maternal grand mother (Nana and Nani) were residing at Kurukshetra and on 7.4.2005 the said maternal grand parents came in the evening to his house and that as usual he went to school on 7.4.2005 and came in the afternoon at his residence at Uttam Nagar and that everything was normal on that day and that his mother and other family members were talking about the Police Station and they went to the PS and that after one or two days, he came to know that his mother had lodged a complaint against accused Rajiv Puri and that he opposed lodging of complaint, on which his mother told him that his father was not SC No.42/10 Page 10/17 meeting them (the witness and the prosecutrix) and went abroad and would come back if they implicate his brother i.e the accused in some case and that was why she lodged the complaint at PS Uttam Nagar on 7.4.2005 against the accused and that accused was a permanent resident of Village Pehwa, Distt. Kurukshetra and that the maternal aunt (Mausi) of his mother was also residing there and they used to visit there.
15. DW5 further deposed that once he and his mother went at the house of accused and asked the accused to call back his father and also asked for their maintenance which was declined by the accused and that some altercations had also taken place with the accused and due to the said reasons, his mother was very much annoyed by the accused and his family and that the suit for declaration and permanent injunction Ex.DW2/A was signed by his mother at point X which he identified as he had seen her writing and signing and that in the year 1994, they used to reside at the address mentioned in the said civil suit and that some other cases were also pending against his mother, Nani, Mama and Sandeep at PS Thanesar, Kurukshetra and in one of the case, his mother had been convicted by the court.
16. In his cross examination by the Ld. APP for the State, DW5 replied that he was 17 years of age at the time the incident took place and that his date of birth is 28.3.1988. He further admitted that on the CBSE certificate, his date of birth is mentioned as 28.3.1989. He was shown the photographs Mark X, Y, Z and Z1 wherein in photograph Mark X, depicts the accused along with mother of the witness and the photograph of the witness as a child and in the photograph Mark Y, the witness and the accused has been depicted, in photograph Mark Z, the mother and father SC No.42/10 Page 11/17 of the witness have been depicted and in photograph Mark Z1, the accused, the witness and maternal grand mother (Nani) of the witness have been depicted. The DW5 was confronted with his statement u/s 161 Cr.PC as Ex.DW5/Z2 which he denied to have made to the police. He further denied the suggestion that on 6.4.2005, he had gone to the house of his maternal grand mother where he stayed for many days. He further answered that he gave status to his parents equivalent to God and he has never lodged any complaint against any party of the present case at any point of time till date. He denied the suggestion as wrong that his mother has deposed truly. He denied the suggestion that accused often visits the house of the prosecutrix and was having close intimacy with his family as shown in the photographs. He denied the suggestion that he was deposing falsely in order to save the accused being his uncle with whom he was residing.
17. Let me discuss about the defence which the accused has raised in the present case. First and foremost defence is that prosecutrix is a woman of loose character and she is a woman of easy virtue. Some criminal cases involving sexual offences registered against the prosecutrix have been proved on record and the same are not disputed also. The question arises as to whether a person has a license to commit rape even on a prostitute. The answer to the question has been answered in negative by the Hon'ble Supreme Court in catena of judgments. One important judgment of the Hon'ble Supreme Court may be referred here titled State of Haryana Vs. Prem Chand reported as AIR 1990 SC 538 wherein it was held as follows:
"The character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused SC No.42/10 Page 12/17 or imposing punishment under section 376; such factors are wholly alien to the very scope and object of section 376 and can never serve either as mitigating or extenuating circumstances for imposing the subminimum sentence with the aid of proviso to section 376(2)."
18. In view of the said law laid down by the Hon'ble Supreme Court, the defence of the prosecutrix being of easy virtue does not help to the accused.
19. Next is the defence raised on behalf of the accused is plea of alibi. It was contended on behalf of the accused by the Ld. Defence Counsel that DW6, the wife of the accused, has appeared in the witness box and has proved the record of his business also wherein on the day of alleged incident i.e 6.4.2005, the accused was present at his residence at Haryana and DW5 Mayur Puri has also corroborated the version that none came on the day of incident to the house of the prosecutrix.
20. Plea of alibi under the law has its own characteristics. First is that it is a double edged weapon which means that if the party taking the defence of alibi fails to establish the same, it goes against the party propounding the defence. Secondly, the alibi may be of positive character such as one deposed by DW6 that the accused was at Haryana and it may be of negative character such as one deposed by DW5, the son of the prosecutrix that none came on the day of the incident so that the alleged offence could have been committed by any person. The positive character of plea of alibi is very weak in this case because the document such as the register of the business transaction Ex.DW6/A, can be created at any point of time and the distance between Village Pehwa and Delhi may be covered within a period of time so as to reach the house of the prosecutrix SC No.42/10 Page 13/17 as alleged by her. Hence, the positive aspect of plea of alibi, as deposed by DW6, in my considered opinion, is not reliable. However, the negative aspect of the said defence as given by DW5 has been discussed by me below not as a plea of defence but to ascertain the alleged motive of the prosecutrix in getting this case registered.
21. The third defence of the accused which has been established on the record is that prosecutrix married with one Sandeep against whom she filed a civil suit also which is Ex.PW2/A and she was not the wife of Sanjeev Puri, as alleged by her. In my considered opinion, this is a half hearted defence which has been attempted on behalf of the accused because one cannot be allowed to blow hot and cold in the same breath. On the one hand, it has been argued on behalf of the accused that prosecutrix married to one Sandeep and the civil suit filed by her against that Sandeep has been pressed into the service to prove the same and at the same time, DW5 has also been marshaled in the evidence who is the son of the prosecutrix and who deposed that he was the son born from the wedlock of Sanjeev Puri and the prosecutrix. Hence, the said defence is also not tenable and does not help to the accused.
22. Coming to the circumstances in which the prosecutrix has alleged her rape, the same do not inspire confidence as the story of the knife being put on her neck by the accused and subsequently keeping the knife apart while committing the actual act of rape and thereafter the accused going in another room after the act, leaving the house of the prosecutrix before sunrise, letting the accused go out of the house without any hue and cry on behalf of the prosecutrix, creates a reasonable doubt in the judicial mind as to whether the incident really happened at all as has been SC No.42/10 Page 14/17 narrated by the prosecutrix. The delayed FIR in the said circumstances also gives a jolt to the story of the prosecutrix in the said circumstances although this court is conscious of the judgment of the Hon'ble Supreme Court titled Karnel Singh Vs. State of MP reported as AIR 1995 SC 2472 wherein it was held that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person, she will not do anything without informing her husband and that merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false and that the reluctance to go to the police is because of society's attitude towards such women, it casts doubt and shame upon her rather than comfort and sympathize with her and that, therefore, delay in lodging complaints in such cases does not necessarily indicate that the version is false. But in the instant case, the prosecutrix was certainly not a woman of the nature which has been described by the Hon'ble Supreme Court in the said judgment. As per her own case, Sh. Sanjeev Puri, the alleged husband of the prosecutrix, had left her long back in the year 1990 when he settled in Italy and undisputedly she has been habitually residing separately since then and in the said circumstances, the delay in the FIR is having a material bearing on the merits of the case. It is also the case of the prosecutrix that accused has been on visiting terms prior to the day of incident and admittedly the accused did not consume liquor on earlier occasions and one fine evening, the accused consumed the liquor and raped her, is the version difficult to swallow.
23. Now one version is that of the prosecutrix which is before the court of the presence of the accused on 6.4.2005 and raping her at 2.30 a.m. on SC No.42/10 Page 15/17 7.4.2005. The second version before the court is given by DW5 and there is no law that prosecution as well as defence witnesses are to be treated on different footings or be given a preferential treatment over the other.
24. Ld. APP for the state has pointed out that DW5, the son of the prosecutrix, is a prosecution witness and was shown at Sl.No.4 in the list of witnesses and the dictum of law that once a prosecution witness, always a prosecution witness, comes to the help of the prosecution. I am not inclined to accept the said contention raised by Ld. APP for the state as I had already pointed out that the then Ld. Prosecutor dropped DW5 as unnecessary witness from the prosecution side. If DW5 would have been produced as a prosecution witness, and thereafter, even if he would have been hostile to the prosecution, the interpretation of the things or inferences would have been different because in the said state of affair, it would very well be argued on behalf of the state that DW5 had his own axes to grind as prosecution witness turning hostile. But once he is dropped from the list of witnesses for the prosecution, he is no more a prosecution witness and if he is produced as a defence witness, his testimony is to be weighed independently as that of any other witness.
25. I have already reproduced the deposition of DW5 above and Ld. APP for the state could not shake the testimony of DW5 in his cross examination. Even if it is to be taken as true that there was an intimacy of this witness with the accused and his family as shown in photographs Mark X, Y, Z and Z1, this is no ground of rejecting his testimony as a whole. DW5 has specifically deposed the motive of the prosecutrix to falsely implicate the accused in the case as she wanted to procure the presence of her alleged husband Sanjeev Puri and illwill nurtured by her towards SC No.42/10 Page 16/17 the accused and his family due to not calling back her husband from abroad. DW5 further deposed that on 6.4.2005, he was present at his house along with his mother i.e the prosecutrix, and one Sandeep and no one had come on that day to his house and he further deposed that even the accused did not come to his house on 6.4.2005 or prior and after that. This part of his statement remained almost unrebutted. His deposition with regard to the motive of the prosecutrix is also admitted by the prosecutrix herself in her cross examination regarding her alleged husband Sanjeev Puri left her for a long time. Thus, the deposition of DW5 has produced the other version of the story before the court.
26. Needless to repeat the law that the version or the inference which is favourable to the accused must be accepted. Accordingly, the possibility of the accused being falsely implicated in the case cannot be ruled out. Hence, benefit of doubt is extended to the accused. The accused is acquitted of the charges u/s 376/506II IPC. His personal bond and surety bond are hereby discharged. The file be consigned to the Record Room. (Announced in the open court on 20.04.2010) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.42/10 Page 17/17