Delhi District Court
State vs Dilshad @ Babloo on 15 May, 2014
State Vs Dilshad @ Babloo
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 (CENTRAL): DELHI
SC No. : 72/12
ID No. : 02401R0423042012
FIR No. 53/2012
PS : Kamla Market
U/s: 342/363/366A/376/506 IPC
State
Versus
Dilshad @ Babloo
S/o Haji Nabab
R/o H.No. 14, B-2, Gali No.1
Bhagirathi Vihar,
Mustafabad, Delhi
.........Accused
Date of Institution : 28.08.2012
Date of committal : 18.10.2012
Date of judgment reserved on : 06.05.2014
Date of judgment : 15.05.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Anupam S. Sharma, Advocate, counsel for the
accused.
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JUDGMENT :-
1. Briefly stated facts of prosecution case are that on May 28, 2012 victim aged about 16 years visited PS Kamla Market and got recorded her statement Ex. PW6/D1 alleging that for the last one month she was residing at the house of her mausi (PW3). It was alleged that on May 26, 2012 at about 5 PM accused Dilshad @ Babloo came to the house of her mausi and asked her to accompany him and took her on the pretext that they were going for sight scene in Delhi but, thereafter, he took her at unknown premises. It was alleged that victim knew the accused previously as he was residing near her parent's house at Mustafabad. It was alleged after taking her at unknown premises, he told the victim that they would go for sight scene on the next day as it had already become night and thereafter, he committed rape upon her. It was alleged that on May 27, 2012 he detained her at the said room and thereafter again committed rape upon her against her willingness and consent. It was further alleged that accused had threatened her that if she did not follow his directions, he would kill her family members. It was alleged that thereafter, accused had dropped her at her house and went away. (Since complainant is the victim of sexual offence, her identity is withheld and hereinafter she is referred to as complainant or victim and in order to conceal the identity of victim, identity of her mausi is also withheld and hereinafter she is referred to as mausi of victim or PW3.) It was alleged that after reaching house, she had narrated the incident to her family members, consequently, she along with her family members came to police station on May 28, 2012 to lodge an FIR. During investigation, she was sent for medical examination. Her biological samples were taken. Her statement under Section 164 Code of Criminal Procedure (Cr.P.C in short) was got recorded. Accused was arrested. Biological samples of accused were also taken. Exhibits were S.C. 72/2012 2 of 30 State Vs Dilshad @ Babloo sent to FSL for analysis.
2. After completing the investigation, challan was filed against the accused for the offence punishable under Section 342/353/366A/376/506 of Indian Penal Code (IPC in short).
3. After complying with the provisions of 207 Cr.P.C., case was committed to the Court of Sessions on October 12, 2012. Thereafter, case was assigned to this Court on October 18, 2012. Accordingly, case was registered as SC No. 72/2012.
4. Vide order dated November 29, 2012, a charge for the offence punishable under Section 363/342/376/506 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 18 witnesses:-
PW1 ASI Jai Pal Singh, duty officer, proved the FIR PW2 mother of victim (in order to conceal the identity of victim, her identity is also withheld and hereinafter she is referred to as mother of victim) PW3 mausi of victim PW4 Deepak Fransis, employee of Krishna Lodge/hotel PW5 Saurabh Aggarwal, owner of the said lodge/hotel PW6 victim/complainant PW7 Karnail Singh, formal witness PW8 Constable Yogesh, formal witness, deposited the exhibits at FSL, Rohini PW9 Smt. Vimlesh Singh, Principal of School, proved S.C. 72/2012 3 of 30 State Vs Dilshad @ Babloo the date of birth of the victim PW10 Kiran Pal, formal witness PW11 HC Ram Dutt Singh, MHC(M) PW12 Mr. Devender Singh Bhandari, Sub-Register, proved the birth certificate of victim PW13 Dr. Yousuf Azad, proved the MLC of victim PW14 Dr. Zaid Ahmed, proved the MLC of accused PW15 Ms. Seema Nain, Sr. Scientific officer (Biology) FSL Rohini, proved the FSL report PW16 SI Poonam Tomar, investigating officer PW17 Dr. Ritika Bajaj, proved the MLC of victim PW18 Dr. Kulbhushan, proved the MLC of accused
6. On culmination of prosecution evidence, accused was examined under Section 313 Cr.P.C. wherein he admitted that he had stayed at Krishna Lodge at Ghaziabad and also admitted that he had pointed out the Krishna Lodge after his arrest but took the plea that victim did not stay with him at the said lodge. He also admitted that he was medically examined but denied that his under garment was also seized. He further submitted that he was in love with the victim and in the month of February 2012, father of victim had seen him and victim together and thereafter, he made a complaint to police, however the said matter was compromised. It was submitted that since then he stopped talking or meeting with the victim. It was submitted that victim has lodged a false FIR against him and claimed that he is innocent. It was further submitted that clothes were planted upon him and he had not committed any rape upon the victim. It was further submitted that victim is the daughter of PW3 and not of PW2. It was stated that PW2 had given a birth to male child but he died and in order to show the victim minor family of victim has utilized the birth certificate of that child but he was a male child. Though during his S.C. 72/2012 4 of 30 State Vs Dilshad @ Babloo examination accused took the plea that he would lead evidence in his defence, yet he did not lead any evidence in his defence, accordingly, defence evidence was closed.
7. Learned counsel appearing for the accused sagaciously contended that in order to show that victim was minor, prosecution has relied upon the birth certificate Ex. PW16/F, but it was argued that no reliance can be placed on the said certificate as the same pertains to a male child whereas victim is female. It was submitted that as per the said certificate the said male child was born to PW2 and her husband whereas PW2 admitted in her cross-examination that victim is not her biological daughter; rather she is the biological daughter of PW3. It was thus contended that the said birth certificate is not helpful to prosecution to prove the age of victim. It was further contended that no reliance can be placed on the school record also because in the school record the birth of victim is mentioned on the basis of certificate Ex. PW16/F. It was further contended that at the time of medical examination of victim, doctor advised the police officer to get conducted ossification test to ascertain her age but investigation officer failed to follow the advice deliberately and without any just and reasonable explanation. It was thus contended that there is no cogent evidence on record to establish that victim was minor at the time of alleged incident. It was further astutely contended that no reliance can be placed on the DNA report Ex. PW16/A as the DNA was allegedly generated from the underwear of victim whereas victim in her testimony categorically deposed that no underwear was given to the police. It was submitted that there is no iota of evidence on record to show that the said underwear belonged to the victim. The said underwear was not identified by the victim. It was contended that since there is no evidence on record that the said underwear belonged to victim, DNA report is not helpful to the prosecution to establish that accused had any sexual intercourse with the S.C. 72/2012 5 of 30 State Vs Dilshad @ Babloo victim. It was further perspicaciously contended that though prosecution case is based on the sole testimony of victim (PW6), but no reliance can be placed on her testimony. It was argued that complainant had set up a case in her complaint Ex. PW6/D1 that she was raped at unknown house whereas in her deposition, she professed that she was raped in a hotel at Ghaziabad. It was astutely contended that in her complaint she nowhere alleged that she was taken to Ghaziabad or she was raped in any hotel. It was further contended that as per the complaint Ex. PW6/D1 victim was raped initially on 26.5.2012 and thereafter on 27.05.2012 but in her deposition she deposed that she was raped only on 26.5.2012. It was contended that victim has made several substantial improvements in her testimony which created a reasonable doubt over her deposition. It was further contended that there are material contradictions between the testimony of PW6 and prosecution case as PW6 alleged that she was raped on 26.5.2012 whereas PW4 deposed that accused visited the hotel on 27.5.2012 at about 11 AM. It was thus contended that it means victim did not accompany with the accused on 26.5.2012. It was further contended that as per the visitors register of the hotel, accused visited the hotel alone, this further shows that victim did not accompany with the accused at that time. It was further submitted that as per the record of hotel, accused had checked out on 28.5.2012 and even at that time he was alone, this further establishes that victim did not stay with him in the hotel. It was sagaciously contended that victim was in love with the accused and this fact is clear from the DD no. 21A (Ex. PW16/D1) wherein victim alleged that earlier accused used to say that he loved her but now he is saying that he did not love her. It was contended that PW6 in her cross-examination admitted that the complaint which she had lodged on 25.2.2012 was settled and the settlement document is exhibited as Ex. PW6/D2 wherein she admitted that love affair was going on between them for the last one year and further stated that during the said love affair, mistake had been S.C. 72/2012 6 of 30 State Vs Dilshad @ Babloo committed by them, however, the matter was resolved due to intervention of elders of both the families and they had decided that they would not meet with each other and they shall not continue their relations. It was contended that since then accused was not meeting or talking with the victim and due to that reason victim had falsely implicated the accused in this case. It was vigorously contended that considering the contradictions between the statements made by the victim from time to time and the fact that she had made substantial improvements in her deposition, no reliance can be placed on her uncorroborated testimony. It was further submitted that during trial prosecution has failed to produce any corroborative evidence to support her allegations.
8. On the other hand, learned Additional Public Prosecutor refuted the said contentions by arguing that there is no reason to disbelieve the birth documents of the victim. It was contended that PW2 in her deposition categorically deposed that due to inadvertent mistake male child was mentioned at the time of registration of the birth of the victim. It was further contended that in school record, her age is mentioned as 10.09.1996 and there is no reason to disbelieve the same. It was further contended that victim had handed over her underwear to the IO in the police station along with her other clothes and this fact is proved from the testimony of investigating officer. It was further contended that since the underwear belonged to the victim and DNA was generated from her underwear and the same was matched with the DNA of the accused, thus it is established that accused had sexual intercourse with the victim and since victim deposed that it was against her consent and willingness, it means that she was raped by the accused. Though it was fairly conceded that there are some discrepancies in the testimony of PW6 and the complaint lodged by her but swiftly added that the said discrepancies are not sufficient to discard her testimony. It was vehemently contended that S.C. 72/2012 7 of 30 State Vs Dilshad @ Babloo PW6 in her deposition categorically deposed that she was taken on the pretext for having sight scene in Delhi but accused took her at Ghaziabad in an hotel and raped her. It was further contended that the hotel staff also corroborated the testimony of PW6 by deposing that victim accompanied the accused. It was further vigorously contended that accused had also threatened her as when victim asked the accused to stop motor cycle but accused asked her to sit quietly otherwise he would kill her father. Similarly, at the time of committing rape upon her, accused had threatened the victim. It was further contended that mere fact that victim did not sustain any injury on her body does not prove that either she was consenting or willing party. It was further contended that since victim was threatened, it cannot be said that she was a consenting party. It was further argued that during trial, accused failed to lead any evidence to establish that victim did not accompany him and they did not stay in the hotel. It was thus argued that there is no reason to disbelieve the prosecution case.
9. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. Before dealing with the contentions raised by counsel for both the parties, I deem it appropriate to refer the relevant provisions of law. Admittedly, provisions of Section 375 IPC have been amended by way of amendment Act 13 of 2013 w.e.f February 3, 2013. Since, in the instant case, incident had taken place on May 27, 2012 and prior to that, thus the pre-amended provisions shall be applicable to the present case. Pre- amended Section 375 IPC reads as under:-
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State Vs Dilshad @ Babloo
375.Rape- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances failing under any of the six following descriptions:-
First- Against her will Secondly.- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or though another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape"
Contentions relating to the date of birth of victim:-
11. Prosecution has set up a case that victim was born on September10, 1996 and in order to prove the same, prosecution has relied upon the birth certificate Ex. PW16/E, verified copy of birth certificate Ex.
PW16/F and copy of birth register Ex. PW12/A. In all the above
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State Vs Dilshad @ Babloo
documents, it is mentioned that a male child was born on September10, 1996 to PW2 and her husband. Name of child is mentioned as Sadaf Khan, a male child. Prosecution has also relied upon the certificate Ex. PW16/B issued by Principal of Government Sarvodya Kanya Vidayala wherein she certified that Sadaf Khan was born on September 10, 1996.
12. Since Ex.PW16/E, Ex. PW16/F and PW 12/A pertain to a male child purported to be born to PW2 and her husband, heavy burden was upon prosecution to establish beyond all reasonable doubts that the said documents pertains to the birth of victim (PW6). In order to show that victim is the biological daughter of PW2, prosecution has examined PW2 (purported to be biological mother of victim) and PW3 (purported to be mausi of the victim). PW3 in her deposition categorically deposed that victim is the daughter of her sister (PW2) and denied the suggestion that victim is her daughter. Thus, as per the testimony of PW3 victim is the biological daughter of her sister i.e. PW2. Though initially PW2 in her examination-in-chief deposed that victim is her biological daughter and she was born on September 10, 1996; she also deposed that at the time of getting registration of her birth, inadvertently it was mentioned as a male child instead of female child. Thus, initially PW2 intended to show that victim was her biological daughter. But in her cross-examination, she demolishes the prosecution case by deposing that victim is in fact the daughter of her sister i.e. PW3 and further deposed that she had only brought up the victim since her childhood. She further deposed that victim is residing with her since her childhood and they are considering the victim as their daughter. She also admitted that no document of adoption was executed in this regard. She further testified that victim was born in Girdhari Lal hospital and further clarified that in the hospital record, name of PW3 is mentioned as the mother of victim. Thus from the testimony of PW2 it becomes crystal clear that victim is not her biological daughter; rather she S.C. 72/2012 10 of 30 State Vs Dilshad @ Babloo is the daughter of PW3 and she was born in Girdhari Lal hospital and in the hospital record, the name of PW3 is mentioned as the mother of victim.
13. In view of the testimony of PW2, a reasonable doubt arises over the birth certificate produced by prosecution during trial. Since in the birth documents namely Ex. PW16/E, PE16/F and PW12/A, sex of child is mentioned as male, it was paramount duty of the investigating officer to ascertain on what basis male child is mentioned in the birth record; whether it was a clerical mistake or not. But no such effort was made by the investigating officer. No effort was made to collect the form which was submitted before the Sub-Registrar Birth and Death at the time of registration of the birth of the child. It is not clear whether sex male was recited in the form or the mistake was committed by the staff of the Sub- Registrar at the time of making entry in the register. Similarly, during the investigation, no effort was made to seek clarification from the purported mother of victim (PW2) to ascertain how the sex male is mentioned in the said documents. Even no attempt was made to ascertain whether the child was born at home or in hospital and no attempt was made to collect the document from the hospital to show that the said child was born to PW2 and not to PW3. Though prosecution has also examined PW9 Smt. Vimlesh Singh, Principal of Govt. Sarvodya Kanya Vidhayala, Yamuna Vihar and she testified that the victim was the daughter of PW2 and her husband and she was got admitted in their school in VIth standard on April 09, 2009 and at that time they disclosed her date of birth as September, 10, 1996. The copy of admission register is Ex. PW9/A. She further deposed that at the time of obtaining admission in her school, victim had furnished the school leaving certificate of previous school and same is Ex. PW9/B. It means that the date of birth i.e. September 10, 1996 is recorded in the school record on the basis of school leaving certificate Ex. PW9/B. There is no evidence on what basis her date of birth i.e. September 10, S.C. 72/2012 11 of 30 State Vs Dilshad @ Babloo 1996 was got recorded in her school. Since in the birth certificate Ex. PW16/E and PW16/F and the register Ex. PW10/A it is mentioned that male child was born to PW2, a reasonable doubt arises over the school record. It is not clear whether in the school record, her date of birth is mentioned on the basis of Ex. PW16/E or any other document. In the absence of any other cogent evidence on record, Ex. PW9/A and PW9/B will not be helpful to the prosecution to establish that the date of birth of victim is September 10, 1996. Moreover, both the above documents show that the same pertain to the child of PW2 and her husband whereas in the instant case during trial PW2 categorically deposed that she is not the biological mother of the victim. It means that PW2 had furnished wrong information at the time of getting admitted the victim in the school claiming herself to be the biological mother of the victim.
14. In the light of the above discussion, I am of the considered opinion that the documents produced by prosecution are not sufficient to hold that the said documents pertains to the victim or that victim was born on September 10, 1996.
15. Perusal of MLC Ex. PW17/A, it becomes clear that doctor had advised for X-Ray for bone age estimation of the victim. But admittedly investigating officer did not follow the said advice. Since there was discrepancy in the birth certificate produced by PW2 during investigation, it was the duty of investigating officer to go for ossification test but investigating officer did not follow the advice without any just and reasonable explanation. During trial, initially investigating officer attempted to show that she was not aware whether doctor had advised her for bone age of the victim but when her attention was drawn towards MLC Ex. PW7/A, she admitted that doctor had advised her for bone age examination. However, she denied the suggestion that she did not S.C. 72/2012 12 of 30 State Vs Dilshad @ Babloo deliberately go for ossification test because victim was above 18 years and this fact did not suit to the prosecution case. Further, since sex of child is mentioned as male in all the birth documents, it was sufficient to raise suspicion over the said documents, thus, it was the paramount duty of investigating officer to go into the depth of matter to satisfy herself whether the documents pertain to the birth of victim or not, but it appears that investigating officer did not prefer to conduct the investigation in depth and preferred to blindly rely upon the documents made available by the victim's family.
16. Even PW6 (victim) also did not disclose her date of birth. It means that victim does not know whether she was born on September 10, 1996 or any other date. Thus, the testimony of PW6 is also not helpful to the prosecution to prove her date of birth.
17. In light of aforesaid discussion, I am of the considered opinion that the documents relied by prosecution during the trial are not sufficient to hold beyond reasonable doubt that the said documents pertain to the victim i.e. PW6 and that victim was born on September 10, 1996.
Contentions relating to the DNA report/underwear of the victim:-
19. Prosecution has set up a case that a male DNA was generated from the semen spot found on the underwear of victim. As per prosecution case, the DNA generated from underwear was tallied with the DNA generated from the blood sample of accused. On the basis of said piece of evidence, prosecution attempted to establish that sexual intercourse had taken place between victim and accused.
20. As per MLC Ex.PW17/A, victim informed the doctor that she S.C. 72/2012 13 of 30 State Vs Dilshad @ Babloo had changed her clothes after the incident and she had washed the same. Probably due to that reason, the clothes of the victim were not seized by the doctor. During her deposition, PW16 deposed that the clothes of victim were seized vide memo Ex. PW16/C. As per the said document, her kurta (shirt), salwar, dupta and underwear black colour were seized. PW16 further deposed that she had seized the said clothes in the police station when victim reached the police station from hospital. She further deposed that victim had changed her clothes in the police station and she asked her mausi (PW3) to fetch fresh clothes from the house, accordingly, victim had changed her clothes in the police station. She further deposed that the clothes were seized in the presence of PW2 and PW3. But surprisingly, the memo Ex. PW16/C neither bears the signature of victim nor the signature of PW2 & PW3. PW16 further admitted in her cross-examination that she did not record either the statement of victim or PW2 or PW3 to the effect that she had seized victim's clothes in the police station. She further deposed that the clothes were seized with the seal of SS which belonged to SI Sushil Sharma but again PW16 did not deem it appropriate to record the statement of SI Sushil Sharma. In nutshell, there is no evidence on record except the bald statement of PW16 that the said clothes were seized in the police station. Moreover, the testimony of PW16 is completely demolished by PW6 (victim) who deposed in her testimony that she had given only her kamiz of green colour and mehroon colour salwar to the police in the police station. She did not state that she had also given any other clothe particularly underwear. Thus, she did not support the prosecution version that she had ever handed over her underwear to the police. It is pertinent to mention that prosecution did not dispute the testimony of PW6 to the extent that she had handed over her kamiz (shirt) of green colour having embroidery and mehroon colour salwar. Thus, it is proved that victim did not hand over her underwear to the police. Further, there is also discrepancy in the testimony of PW6 and Ex. PW16/C. As per S.C. 72/2012 14 of 30 State Vs Dilshad @ Babloo testimony of PW6, she had handed over green colour kamiz (shirt) having embroidery whereas as per Ex. PW16/C the colour of kurta was sky blue having red colour embroidery. During trial, prosecution failed to produce any other cogent evidence to establish that either PW6 or PW2 or PW3 had ever handed over the underwear of the victim to the police. Even PW2 and PW3 in their deposition no where deposed that PW6 had handed over her underwear or any other clothes to the police on May 28, 2012 in the police station. In the absence of any cogent evidence on record, I am of the opinion that prosecution has miserably failed to establish that the underwear which was allegedly seized vide memo Ex. PW16/C belonged to PW6.
21. It is admitted case of prosecution that the seized underwear was examined in the FSL and during examination, underwear was marked as exhibit 2a and blood was detected on the underwear. But surprisingly, no DNA profile was generated from the said blood spot. Had DNA profile been generated from the said blood spot and compared with the blood sample of the victim, it would have rendered immense assistance to the prosecution to prove that the seized underwear was belonged to the victim.
But unfortunately no such attempt was made.
22. Further, there is also no evidence on record to establish that the underwear which was allegedly seized vide memo Ex. PW16/C was the same underwear which victim was wearing at the time of alleged incident. In these circumstances, I am of the considered opinion that there is no scintilla of admissible evidence to establish that the underwear which was alleged seized vide memo Ex. PW16/C belonged to the victim, thus, the DNA report is not helpful to connect the accused with the alleged incident.
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Contentions relating to the testimony of victim:-
23. Before dealing with the testimony of victim, I prefer to deal with the question as to whether conviction can be recorded on the sole uncorroborated deposition of victim or not?
(i). In Madho Ram v. State of U.P., AIR 1973 SC 469 it was held that:
"Prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasized 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)
(ii). In State of Himachal Pardesh v. Asha Ram, AIR 2006 SC 381, Apex Court held that:
"The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault S.C. 72/2012 16 of 30 State Vs Dilshad @ Babloo alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.
(emphasis supplied)
(iii). In Aman Kumar v. State of Haryana, reported in AIR 2004 SC 1497, Apex Court held:
"It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice."
(emphasis supplied)
(iv). In Radhu Vs. State of Madhya Pardesh, AIR 2007 SC 847, it was held that:
"It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her S.C. 72/2012 17 of 30 State Vs Dilshad @ Babloo statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrist, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
(emphasis supplied)
24. It is explicit from the above-said cases that conviction can be recorded on the sole uncorroborated testimony of rape victim provided her testimony is trustworthy and inspire confidence. Now, pivotal question arises as to whether testimony of PW6 is trustworthy to record conviction or not?
25. Prosecution has set up a case against the accused that on May 26, 2012 at about 5 PM accused reached the house of mausi (PW3) of victim and took her along with him on the pretext to have sight scenes in Delhi and thereafter, accused took her at unknown premises. Since, it had already night, accused asked her that they would go for sight scenes on the next day and thereafter, accused committed rape upon her in the night. Thereafter, accused again committed rape upon her in the morning of May 27, 2012 against her willingness and consent and then dropped her at the S.C. 72/2012 18 of 30 State Vs Dilshad @ Babloo house of her parents. However, in her statement under Section 164 Cr.P.C victim had made certain additional allegations against the accused about the incident that had allegedly taken place in January and February 2012. Qua the incident that had taken place in May 2012, victim alleged that accused had made a call at the adjacent house of her mausi (PW3) and called her. Thereafter, accused asked the victim to come down stairs otherwise he would kill her father and when she came down stairs, accused forced her to sit on his motor cycle, then he took her somewhere in Ghaziabad where he tied her hands and committed rape upon her. After twenty four hours, accused dropped her at her parents house.
26 In order to prove the allegations, prosecution has relied upon the testimony of victim i.e. PW6.
27. First question arises how the accused had called the victim from the house of her mausi?
28. PW6 in her examination-in-chief deposed that accused had made a call at the house of her mausi/khala (PW3) and asked her to come down-stairs otherwise he would kill her father. Consequently, she went down stairs. As already stated that in her complaint Ex. PW6/D1, victim alleged that accused took her from the house of her khala (PW3) on the pretext of having sight scene whereas in her statement under Section 164 Cr.P.C (Ex. PW6/A) she alleged that accused had made a call to her at the adjacent house of her mausi and asked her to come down stairs. But in her deposition, she set up a new case that accused had made a call at the house of her khala. In her cross-examination, she further clarified that accused had made the call at the mobile phone of her khala. But she also deposed that she did not know her phone number. She further deposed that accused did not use to make a call at the house of her khala and he S.C. 72/2012 19 of 30 State Vs Dilshad @ Babloo had made the call only on that day. If call was made at the mobile phone of her khala, it will be highly improbable that her khala (PW3) would not inform the police. She further deposed that she did not state in her statement Ex. PW6/A that accused had made a call at the adjacent house and the said portion of her deposition was duly got confronted during her cross- examination. Simultaneously, she also admitted in her cross-examination that in her complaint Ex. PW6/D1 she stated before the police that accused came to the house of her mausi and stated that accused had not made a call at the house of her mausi. Though she stated that in her complaint Ex. PW6/D1 she stated that accused asked her to come otherwise he would kill her father, but her testimony to that extent is duly got confronted. PW6 also admitted in her cross-examination that she had stated in her complaint Ex. PW6/D1 that accused had taken her from the house of her khala on the pretext of having sight scene in Delhi. Thus, from the testimony of PW6, it becomes crystal clear that PW6 is not aware whether accused had taken her from the house her khala on the pretext of having sight scene or that he had taken her from the house of her khala after making call at her khala's house or at the house of some neighbour or that accused had taken her under any threat. In these circumstances, the testimony of PW6 to that extent does not inspire any confidence.
29. During her cross-examination she also admitted that the house of her khala is located at the first floor and numerous shops are located at the ground floor and the house of her khala is located in the crowded area. She also admitted that police booth is located on both side near the house of her khala. She also admitted that before going along with accused, she did not inform her Khala. Thus, it can safely be culled out from the deposition of PW6 that she left from the house of her Khala without intimating any one. Assuming for the sake of argument that accused had called the victim after extending threat on phone, but in such S.C. 72/2012 20 of 30 State Vs Dilshad @ Babloo circumstance, the conduct of normal human being would be to raise hue and cry but the conduct of PW6 was totally contrary to the conduct of any ordinary prudent person, thus, the version of PW6 does not inspire any confidence that accused had called her under any threat. Though in her complaint, PW6 alleged that accused called her on the pretext of having sight scenes in Delhi, yet this fact was not deposed by the victim in her deposition. Thus, no reliance can be placed on the version recited in her complaint.
30. In the light of foregoing discussion, I am of the considered opinion prosecution has failed to establish how the accused had called the victim from the house of her Khala.
Contentions relating to the issue where the alleged incident had taken place:-
31. Victim in her complaint Ex.PW6/D1 alleged that the incident had taken place at unknown house. But she did not clarify whether the said house was located in Delhi or anywhere else. Further, in her statement recorded under Section 164 Cr.P.C. she alleged that the said incident had taken place somewhere in Ghaziabad but she did not clarify about the premises where the alleged incident had taken place i.e. whether the alleged incident had taken place in a house or in any hotel.
32. However, when PW6 graced the witness box, she first time deposed in her examination-in-chief that accused had taken her in a hotel and the said hotel was located in Ghaziabad, thus, she claimed that she was raped in a hotel located at Ghaziabad. In her cross-examination, she clarified that hotel was located in a market and further deposed that she did not sign in the hotel and deposed that only accused had signed in S.C. 72/2012 21 of 30 State Vs Dilshad @ Babloo the register at reception counter and accused had made the payment at reception counter. She further deposed that she and accused stayed at the reception counter for about 2-3 minutes and also testified that hotel staff gave key of the room to the accused and thereafter they proceeded towards their room. Her statement to that extent that accused had taken her to the hotel was got confronted with her statement Ex.PW6/A and complaint Ex.PW6/D1. Thus, it becomes clear that victim first time disclosed in her deposition that accused had taken her in a hotel at Ghaziabad.
33. Prosecution has set up a case that during investigation it was revealed that accused had taken the victim at Krishna Lodge, Navyug Market, Ghaziabad and in order to prove this fact prosecution has relied upon the testimony of PW4 Deepak Fransis, Receptionist of the hotel and PW5 Saurabh Aggarwal, owner of the hotel.
34. PW4 in his examination-in-chief deposed that accused checked in the hotel on May 27, 2012 at about 11 AM and at that time accused had made an entry at serial No. 713 in the register, accordingly, room number 203 was allotted to him. Accused also furnished his voter ID card and he also signed in the register. He further deposed that after some time, one girl came to the lodge to meet Dilshad and thereafter she went to the room of Dilshad. It means that when accused checked in the hotel, no girl accompanied him, thus the testimony of PW4 falsifies the testimony of PW6 that she accompanied the accused when he checked in the hotel and they stayed 2-3 minutes at the reception counter.
35. Further, prosecution case is that accused had called the victim on May 26, 2012 and PW6 in her deposition clarified that accused came to the house of her Khala at about 7.30 PM and thereafter accused S.C. 72/2012 22 of 30 State Vs Dilshad @ Babloo took her on the pretext of having sight scene. PW4 further deposed that accused visited the hotel first time on May 27, 2012 at about 11 AM. PW6 deposed that she was also raped in the night on May 26, 2012. Since, accused reached the hotel only on May 27, 2012, thus, it is impossible to commit rape upon the victim in the night of May 26, 2012 in the said hotel. During investigation, investigating officer failed to collect any evidence to show that victim and accused stayed together in the night of May 26, 2012 in the said hotel. Similarly, no investigation was conducted to the effect that they were together in the night at any other premises on May 26, 2012.
36. PW4 further deposed that accused and girl left from the lodge stating that they would come after some time but they did not return till 8 PM. He further deposed that since at 8 PM his duty was over, he left for his house and on the next day, when he joined his duty, he asked from his staff whether Dilshad had returned or not. They told him that Dilshad did not return on May 27, 2012, accordingly, he had shown him checked out in the register. The register is Ex.PW4/A whereas the relevant entry is Ex.PW4/B. However, in the next breath, he deposed that Dilshad might have checked out on May 28, 2012 before joining his duty. He further deposed that at the time of checked out, signature of Dilshad was obtained in the register. Perusal of Ex.PW4/B reveals that Dilshad had checked out on May 28, 2013 at 9.20 AM and he also signed in the register at that time. Thus, the testimony of PW4 is contrary to the prosecution case that accused had dropped the victim at her house on May 27, 2012. Even during investigation, no attempt was made by the investigating officer to clarify whether the girl who allegedly visited Dilshad in the hotel was the victim. Thus, the testimony of PW4 is not sufficient to hold that girl who visited the hotel on May 27, 2012 was the victim. Statement of PW4 to the extent that Dilshad along with girl left from their lodge/hotel at 5 PM stating that they would come back after some time but did not return till 8 PM and S.C. 72/2012 23 of 30 State Vs Dilshad @ Babloo he left for his house at 8 PM but he (Dilshad) did not return to the lodge/hotel and the fact that on May 28, 2012 when he joined his duty, he asked from his staff whether Dilshad returned or not and they told him that Dilshad did not return, accordingly, he had shown checked out in the register were got duly confronted from the witness from his previous statement. This shows that PW4 had made substantial improvements in his deposition. In his cross-examination, he categorically stated that he did not state to the police that on May 27, 2012 Dilshad came to the lodge/hotel along with a girl and her previous statement to that extent was also got confronted wherein it was so recorded.
37. Thus, from the testimony of PW4, it is established that accused had checked in the hotel/lodge on May 27, 2012 at about 11 AM and he checked out from the hotel/lodge on May 28, 2012 at 9.20 AM and he put his signature at the time of check in and checked out in the visitor's register. From the testimony of PW4, it is also clear that no girl accompanied the accused when he checked in the hotel/lodge. No doubt, from the testimony of PW4, it appears that one girl came to the lodge to meet with him but there is no iota of evidence that the said girl was the victim. Moreover, there is inconsistency between the testimony of PW4 and PW6 as PW4 deposed that the said girl came to the lodge/hotel after some time when accused had already checked in the hotel/lodge whereas PW6 deposed that she reached the hotel along with the accused and they stayed at the counter for about 2-3 minutes. Thus, the testimony of PW4 does not corroborate the version of victim.
38. PW5 is the owner of the said hotel and in his cross- examination, he clarified that they obtained the signature of accused at the time of check in and check out and further admitted that Dilshad had signed the register at both the occasions. This further shows that accused S.C. 72/2012 24 of 30 State Vs Dilshad @ Babloo remained in the hotel from May 27, 2012 at 11 AM to May 28, 2012 at 9.20 AM.
39. In her cross-examination, PW6 deposed that after check in to the hotel, accused gave beating to her and thereafter committed galat kaam with her. However, the said testimony was got duly confronted with her complaint Ex.PW6/D1 and her statement under Section 164 Code of Criminal Procedure Ex.PW6/A wherein it is not so recorded. It is pertinent to state that in her statement Ex.PW6/A, she alleged that accused had tied her hands but this fact was not deposed by PW6 in her deposition nor this fact is mentioned in her complaint.
40. PW5 in his cross-examination also admitted that police station is located at the distance of 100 meters from his lodge/hotel and one PCR van was stationed near the lodge/hotel. If it was so, it means that the victim could easily raise hue and cry to attract the attention of police official, if she was taken forcibly against her wishes or consent. But she did not do so. PW5 also admitted that bathroom was attached in the room and door of the bathroom can be bolted from inside. But there is nothing on record which may suggest that victim had made any attempt to lock herself in the bathroom.
41. PW16 SI Poonam Tomar in her cross-examination deposed that during investigation no evidence was found to show that on May 26, 2012, accused and victim had visited any hotel in Ghaziabad particularly Krishna Lodge and further admitted that during investigation, no evidence was found to show that on May 26, 2012 victim and accused stayed in any house either in Delhi or in Ghaziabad. She further deposed that she had not sought any clarification from the victim to ascertain which of her two versions first as to whether accused had taken her under threat as stated in S.C. 72/2012 25 of 30 State Vs Dilshad @ Babloo her statement Ex.PW6/A or secondly on pretext of showing Delhi as stated in her complaint Ex.PW6/D1 is correct.
42. In this context the testimony of PW16 is also relevant. She in her cross-examination deposed that she had made inquiry from the hotel staff to ascertain as to whether they had heard any hue and cry or alarm from the room where victim was allegedly staying with the accused, but they told her that they had not heard any noise, hue and cry or alarm. Similarly, hotel staff did not inform her that they had noticed any abnormality in the room when they cleaned it. This further creates a doubt over the possibility of any forceful sexual intercourse.
43. From the above discussion, reasonable doubts crop up over the prosecution version that the victim was taken to Krishna Lodge, Navyug Market, Ghaziabad and thereafter accused raped the victim.
44. Applying the settle proposition of law in view of the foregoing discussion, I am of the considered opinion that the testimony of PW6 does not inspire confidence on material points, thus, her sole uncorroborated testimony is not sufficient to record the conviction.
Contentions relating to the alleged threat:-
45. Admittedly, in her complaint Ex.PW6/D1, victim did not allege that accused had taken her under any threat; rather she alleged that accused had taken her on the pretext of having sight scene. It is also clear that in her complaint Ex.PW6/D1, she did not allege that accused raped her under any threat. However, she alleged that accused had threatened her after committing rape that if she disclosed the incident to anyone, he would kill her family members. But when she appeared in the witness box, she S.C. 72/2012 26 of 30 State Vs Dilshad @ Babloo made substantial improvements by deposing that accused had taken her from the house of her Khala by giving threat that if she did not accompany, he would kill her father. It is admitted case of PW6 that when accused visited the house of her Khala, she was inside the house. If accused had given any threat, question arises why she came down stairs alone, why she did not raise hue and cry. As already discussed that it is the against human conduct of any ordinary prudent person. Similarly, she did not make any attempt to get down from her motorcycle. Again she gave flimsy excuse that when she asked the accused where he was going, he asked her to sit quietly otherwise he would kill her father but simultaneously she also admitted that she did not raise any alarm when she got down from the motorcycle. As already discussed that the PCR van was stationed near Krishna Lodge, but she did not raise any hue and cry, if she was taken forcibly, why she did not raise alarm after seeing the PCR van. These facts and circumstances of the case further indicate that PW6 has deposed falsely that she was taken forcibly or under any kind of threat.
Contentions relating to the incident of January and February 2012:-
46. Though, in her complaint Ex.PW6/D1, PW6 did not make any allegation that she was also raped by the accused in the month of January and February, 2012, but in her statement under Section 164 Code of Criminal Procedure, she made certain additional allegations against the accused including that she had given mobile phone number of her father to Tarunam, sister of accused and thereafter accused used to make a call to her and used to call her at his house and whenever she refused to go, accused used to give threat her to kill her father. She further alleged that in January, 2012, accused met her on the way and insisted to accompany him otherwise he would kill her father and thereafter accused took her forcibly at some place in Ghaziabad and committed rape upon her after S.C. 72/2012 27 of 30 State Vs Dilshad @ Babloo tying her hands. She further alleged that she narrated the incident to her father who made a complaint to the police but police had not taken any action against the accused after taking bribe from the family members of the accused. She further alleged that in February, 2012, accused again made a call to her and asked her to come outside her house and he would be reaching there to take her and if she disclosed this fact to anyone, he would kill her family members, consequently, she came out from her house and thereafter accused took her to Ghaziabad in a room and committed rape upon her. Thus, as per her statement under Section 164 Code of Criminal Procedure, accused had committed rape upon her in January, 2012 and February, 2012.
47. However, when PW6 graced the witness box, she did not state that accused had committed rape in January, 2012. Though, she deposed that in January, 2012, accused had given some threat to her but except that he did nothing else. She remained silent about the incident of February, 2012. In her cross-examination, she stated that she did not remember whether she alleged in her complaint Ex.PW6/D1 that accused had committed rape upon her in January, 2012. Even after seeing her complaint Ex.PW6/D1, she stated that she did not know whether she made any such allegations against the accused or not. She admitted that in February, 2012, she made a call to the police stating that one boy was harassing her as previously that boy used to say that he loved her but now saying that he did not love her. The said complaint is Ex.PW16/D1, which is DD No. 21A. As per Ex.PW16/D1 the girl i.e. victim informed the police that one boy was harassing her as earlier that boy used to say that he loved her but now he is denying the same. In her cross-examination, she also admitted a compromise which is Ex.PW6/D2. Perusal of the said document reveals that victim was in love with accused and their love affair was going on for the last one year. It is also recited in the said document that some S.C. 72/2012 28 of 30 State Vs Dilshad @ Babloo mistake was committed by them during the love affair, but the matter was resolved due to intervention of their elders and they agreed that they would not maintain their relations with each other. The said document was signed by numerous persons. PW6 also admitted the said document. Thus, it becomes clear that accused and victim were in love affair and due to the intervention of the family members, it was decided that they will not meet with each other. PW16 in her cross-examination admitted that after going through the document Ex.PW6/D2 and PW16/D1, she realised that victim and accused were in love affair but she did not make any investigation in this regard either from the victim or from the accused. She further deposed that during investigation, she did not find any evidence which may corroborate the version of victim that she was raped either in the month of January or February 2012. She further deposed that she did not find any evidence to corroborate the statement of victim that accused had given any threat to her. She further deposed that during investigation, it was revealed that no threat was given by the accused either prior to May 26, 2012 or thereafter. This shows that PW16 had relied upon the statement of victim blindly despite the fact that no corroborating evidence was found to support her allegations. Needless to say that the object of investigation is to find out truth in the allegations made by the complainant and not to form any opinion on the basis of mere allegations made in the complaint. But it appears that no effective investigation was conducted in the matter except to record the statement of victim.
48. In view of the foregoing discussion, I am of the view that there is no cogent admissible evidence to establish that any incident had taken place either in the month of January, 2012 or February, 2012. Rather, it becomes clear that victim and accused were in love affair for the last one year, this further falsifies the victim's allegation of threat. It is pertinent to mention here that neither in her complaint nor in her statement under S.C. 72/2012 29 of 30 State Vs Dilshad @ Babloo Section 164 Code of Criminal Procedure, victim disclosed that she was in love with the accused for the last one year or that she was not maintaining any relations with the accused since February, 2012. It is pertinent to state that it is not the prosecution case that when victim stopped maintaining relations with the accused pursuant to the above settlement that arrived between both the family in February, 2012, accused started harassing her or pressurising her to continue the relationship with her and he maintained physical relations with her and due to that pressure she maintained physical relations with the accused on May 26/27, 2012.
Conclusion:-
49. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of all reasonable doubts, thus, I hereby acquit the accused Dilshad @ Babloo from all the charges.
50. File be consigned to record room.
Announced in the open Court
on this 15th day of May, 2014 (PAWAN KUMAR JAIN)
Additional Sessions Judge-01
Central district, Tis Hazari, Delhi
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