Delhi District Court
State vs . Rajender @ Raja on 23 July, 2016
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS JUDGE (SFTC), DWARKA COURTS, NEW DELHI. SC No. 440418/16. FIR No. 733/2015 U/s.376/354D/344/506 IPC P.S. Dabri State Vs. Rajender @ Raja S/o Sh. Subhash Chand, R/o RZA/122, Nand Ram Park, Binda Pur, Uttam Nagar, New Delhi Date of Institution : 09.03.2016. Date of reserving judgment : 15.07.2016. Date of pronouncement : 23.07.2016. JUDGMENT : 1.
Accused was arrested by the Police of Police Station Dabri, New Delhi and was challaned to the court for trial for commission of the offences punishable under Sections 376/354D/344/506 IPC.
2. The case of the prosecution, in brief, is that the prosecutrix 'X' (real name withheld in order to conceal her identity), who is a married woman and mother of two children, was forcibly confined on 15.2.2012 by accused at house no. A122, Nand Ram Park, Near Transformer Wali Gali, Uttam Nagar, New Delhi within the jurisdiction of PS Dabri. The accused raped her for a period of two months under the threat to life and when she was about to be forced into prostitution by the accused, she managed to escape. It is further the case of the prosecution that the accused continued to follow her SC No. 440418 (State vs. Rajender @ Raja) Page 1 of 11 and extended threats of dire consequences and also to publicize her obscene photographs and video. On the complaint of the prosecutrix, FIR was registered and the matter was investigated by the police. During investigation, statement of the prosecutrix was got recorded u/s.164 Cr.P. Accused was arrested. The statements of the witnesses were recorded. The prosecutrix as well as accused were got medically examined. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court.
3. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions.
4. Vide order dated 28.3.2016, charge u/s 344/376/323/506 IPC against accused Rajender @ Raja was framed to which he pleaded not guilty and claimed trial. He was accordingly put to trial.
5. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined five witnesses in all. PW1 is the prosecutrix who has narrated the incident. PW2 Sh. Vikram, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded u/s 164 Cr.PC as Ex.PW1/C. PW3 Kunal is son of the prosecutrix. PW4 Chander Shekhar is the Nodal Officer from M/s Bharti Airtel Ltd who has proved the call detail records etc of the prosecutrix and accused. PW5 SI Kamlesh is the IO of the case.
6. Statement of accused was recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence SC No. 440418 (State vs. Rajender @ Raja) Page 2 of 11 against him. Accused pleaded that he has been falsely implicated in this case by the police. As per accused, he married the prosecutrix in 2013 and started living with her in a rented accommodation. However, after marriage he was harassed by the prosecutrix and, consequently, he started residing with his mother. Prosecutrix started demanding money and a house in her name and when he refused the same, prosecutrix implicated him in the present case. The accused, however, did not adduce evidence in his defence.
7. I have heard Ms. Satvinder Kaur, Ld. APP for the State; Sh. D D Sharma, Ld. Counsel for the complainant and Sh. V K Sharma, Ld. Counsel for the accused. I have also perused the entire material on record.
8. The material witnesses in this case are PW1, PW3 and PW5 on whose testimonies the prosecution case rest. PW1 has testified that she got married to Sh. Raj Kumar in the year 1997 and has two children from the said wedlock. Thereafter, due to some dispute with her husband, she started living with her parents. She knew accused as he used to visit the temple situate near the house of her parents. Accused became friendly with her children. As per PW1, on 15.2.2012 accused picked up her children from the school and took them to his house. Accused called her on phone to his house for taking her children. When she reached his house, accused bolted the door from inside. Accused placed the electricity wire on the head of her children and threatened the prosecutrix that if she did not adhere to his commands he would electrocute her children. When prosecutrix tried SC No. 440418 (State vs. Rajender @ Raja) Page 3 of 11 to raise an alarm, accused assaulted her with a blade on her forehead, nose and face. Accused locked her and her children in his house. At about 9 p.m, accused along with his mother came to prosecutrix and told her that they have pooja in their house and prosecutrix would have to attend the said pooja. On being refused by the prosecutrix for the said pooja, she was beaten mercilessly by the accused and his mother. Her children were also beaten by the accused and his mother. On 16.2.2012 she attended the pooja under threat.
9. PW1 has further deposed that on 16.2.2012, in the night, accused came to his room and raped her. She was confined in the said room by the accused for about one and a half month and during the said period, accused used to rape her daily in the night. After one and a half month, she managed to escape and reached her parental house i.e E109, Jeevan Park, Uttam Nagar, New Delhi. On the same night, accused came and threatened her of dire consequences. She narrated the entire incident to her mother who advised her to lodge a complaint against the accused. However, as she was scared, she could not dare to lodge a complaint against the accused. On 9.6.2015 from 10.30 p.m to 11.30 p.m accused abused her and threatened her of dire consequences by calling on her mobile phone. She made a complaint to the police in this regard but no action was taken. Thereafter, she went to Police Station on 11.6.2015 and gave a complaintEx.PW1/A on which the present FIR was registered. From the Police Station, she was taken to DDU Hospital for her medical examination. I.O prepared the site plan Ex.PW1/B on her pointing out and the two photographs were handed SC No. 440418 (State vs. Rajender @ Raja) Page 4 of 11 over to the IO which were seized by her vide memo Ex.PW1/D. PW1 has further deposed that her statement u/s 164 Cr.PC was recorded by the Ld. MM. She has proved the same as Ex.PW1/C.
10. During her crossexamination, PW1 has deposed that she got married to one Sh. Rajkumar only. She had identified her husband Rajkumar in the photograph Ex.PW1/DA. She has denied that she was married to six persons including one Naresh Kumar or he is the biological father of her daughterYashika. However, she had admitted the rent agreementEx.PW1/DB bearing her signatures at points A1 and A2 wherein she is shown to be the wife of one Naresh Kumar. She has also admitted the various photographsEx.PW1/DC to Ex.PW1/DJ and Ex.PW1/DK (1 to 27 collectively) wherein she is seen with the accused and their relatives. She has admitted that in photograph Ex.PW1/DF accused is seen applying vermillion in her parting. She has admitted that she has not obtained divorce from her husband Rajkumar. As per PW1, she went alone to take her children on 15.2.2012 on receiving a call from accused and she did not inform her mother or anybody else regarding the same. PW1 has feigned ignorance about the various complaints Mark X, Mark X1 to Mark X6 made by the accused and his mother. She has denied the tenant verification form Mark X7 and the photographs Mark X8, X9 and X10 to be of Naresh Kumar, Mayank and Gurdas respectively whom the defence counsel has sought to project as her husbands. She has categorically deposed that she was not married to any other person except Rajkumar. She has denied that she had voluntarily married SC No. 440418 (State vs. Rajender @ Raja) Page 5 of 11 accused and the said marriage was attended by 50 to 60 relatives. She has admitted that the house of the accused is situate in a residential colony.
11. It is the settled law that conviction in rape cases can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case the Court has reasons not to accept the version of the prosecutrix on its face value, it may look for corroboration.
12. During the investigation of the present case, the IO found that the accused and the prosecutrix got married on 15.2.2013 and there was no pressure or coercion on prosecutrix for the said marriage. The relevant portion of the chargesheet is reproduced hereinbelow:
"इसकक बबद मन SI नक ददरबनक तफततश आररपत कक आस पड़रस मम भत investigation कत जहबह तफततश पर पतब चलब कक कशकबयतकतबर ससषमब रबनत व उसकत मबह कब आररपत कक घर मम शबदत सक पहलक भत आनब जबनब थब वह दरनरन पकरवबररन नक कमलकर भगवतत कवहबर, कबनदबपसर, सनबतन धमर मनकदर मम कहनदद रतकत रतवबज़ सक दरनरन कत शबदत करवबई थत। कजसमम 50 60 लरग शबदत मम शबकमल थक। जर ददरबनक तफततश मन SI नक सनबतन धमर मनकदर कक पनकडत व शबदत मम शबकमल Photographer सक पदछतबछ कत थत कजसमम उनहरनम बतलबयब कत शबदत मम ककसत पपरकबर कत करई जबरदसतत नहतन थत। ददरबनक तफततश पतब चलब हह कक कशकबयतकतबर कत पहलक भत शबदत हर चसकत हह। मसकदमब हज़ब मम आररपत व कशकबयतकतबर कक फ़रन कत CDR हबकसल कत हह जर लफ फबइल हह। ददरबनक तफततश मन SI नक बयबनबत गवबहन U/s.161 Cr.P.C कलखक हह । जर आररपत कत मबह शतलब दकवत सक भत दरयबफत अमल मम लबयत थत कजसमम ददरबनक दरयबफत बतलबयब कक ससषमब सक मकरक बकटक कत 15/02/13 कर शबदत हसई थत कजसमक दरनरन पकरवबर शबकमल थक कजसमक ससषमब कक बहन, जतजब, मबह व अनय करशतकदबर भत शबकमल थक और ससषमब मकरक बकटक रबजमदरप कर लककर अपनक मबयकक मम भत रहत थत और जबगरण मम बतदर Singer गबनब गबनक भत जबतत थत। व अपनक पदवर पकत कक बचचरन कर भत सकदल छरडनक व लकनक आतत जबतत थत बबद ससषमब नक मकबन कब एक फलरर अपनक नबम करनक कक कलए दवबब बनबयब थब जर हमनक मनब कर कदयब थब । जर इस बबत कर लककर ससषमब झगड़ब करनक लगत थत और रबजब कर लककर अलग ककरबए पर रहनक लगत थत ससषमब कक सबथ हमनक करई जबरदसतत नहतन कत हह ।"SC No. 440418 (State vs. Rajender @ Raja) Page 6 of 11
13. The case set up by the prosecution stands demolished by the answers given by PW1 and PW5 in their respective cross examinations. The photographs Ex.PW1/DC to Ex.PW1/DJ and Ex.PW1/DK (1 to 27 colly.) clearly show that the accused and the prosecutrix were married to each other. In the photographs the prosecutrix does not appear to be under any pressure or threat and she is seen even smiling in some of the photographs. No cogent evidence has emerged from record to show that the said ceremony was not a marriage ceremony but only a pooja ceremony. Prosecutrix was already married and was mature enough to fully understand as to what kind of ceremony was being performed.
14. There is delay in lodging the FIR as the incident is of 15.2.2012 while the FIR was lodged on 11.6.2015. Nothing has come on record to show that the prosecutrix had raised any alarm/hue and cry during the period of her stay in the house of the accused to attract the attention of neighbours. She has admitted that the house of the accused is situate in a residential locality. PW3 in his examinationin chief itself has deposed that accused used to take them to the school and he also used to bring them home. However, he also did not disclose about the incident to anybody. On scruitinizing the versions narrated by the prosecutrix and her son, it seems that the prosecutrix has not presented the true facts. The testimonies of these witnesses do not inspire confidence. The defence taken by the accused in his statement u/s 313 Cr.PC is corroborated by the Investigating Officer PW5 and the photographs of marriage placed on record by the SC No. 440418 (State vs. Rajender @ Raja) Page 7 of 11 accused. PW5 has admitted that the accused and the prosecutrix got married on 15.2.2013 according to Hindu rites and ceremonies and the statements of the priestVedanand Jha who performed the marriage and the photographer Ravi who clicked the photographs were recorded during the investigation. She (PW5) has also admitted that the prosecutrix was married to one Naresh Kumar on 11.7.2015 and a baby girl was born out of the said wedlock. She has also admitted that during local enquiry from the neighbourhood of the accused, it was found that prosecutrix was never confined by the accused in his house and she used to move freely in and out of the house of the accused. As per PW5, the prosecutrix did not produce her parents or any member of her family for recording of their statements to corroborate her version.
15. The defence taken by the accused has remained consistent throughout the trial that he was married to the prosecutrix and has been falsely implicated in this case. The burden to prove its case remains upon the prosecution. The prosecution is to stand on its own legs. In case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts on the accused.
16. Considering the materials on record, as discussed above, the possibility of physical relations with consent after marriage on 15.2.2013 cannot be ruled out. No explicit reliance can be placed on the testimony of the prosecutrix to base conviction.
17. Though not referred to or relied upon, in judgment SC No. 440418 (State vs. Rajender @ Raja) Page 8 of 11 Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr., 2006 (10) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony when the entire case is improbable and unlikely to have happened. This is what has been stated:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in acepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
18. Though not referred to or relied upon, in judgment Rai Sandeep @ Deepu v. State of NCT of Delhi, (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. It held: "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It SC No. 440418 (State vs. Rajender @ Raja) Page 9 of 11 should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
19. Though not referred to or relied upon, in judgment Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Supreme Court held : "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."
SC No. 440418 (State vs. Rajender @ Raja) Page 10 of 1120. The delay in FIR, the testimonies of the prosecutrix and her son and the associated circumstances including photographs of marriage ceremony and rent agreement Ex.PW1/DB leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. As the prosecution case would show, her testimony does not inspire confidence and the circumstantial evidence do not lend any support to the same. In the absence of both, this Court is of the view that accused is liable to be acquitted.
21. Considering the facts and circumstances of this case, I am of the opinion that the prosecution has failed to prove its case against the accused. Hence, the accused is acquitted. His personal bond is cancelled and surety is discharged. Documents, if any, be released to the surety/Counsel. In terms of Section 437(A) Cr.P.C., accused is directed to furnish personal bond in the sum of Rs.25,000/ with one surety in the like amount for a period of six months for his appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Announced in open (PRAVEEN KUMAR) Court today i.e. on 23.7.2016. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
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