Delhi District Court
State vs Accused on 9 September, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0170662009 SC NO.127/13 Date of Institution :10.02.2010 FIR No.93/09 Date of Argument :21.08.2013 PS New Ashok Nagar Date of Order :09.09.2013 U/S 365/366/376/354/452/506/34 IPC State Versus Accused 1. Anuj Kumar @ Sonu S/o Sh. Fakir Chand R/o Village Dhanori P.S. Haldaur, District Bijnor, UP 2. Arbind Kumar S/o Sh. Muneshwar Singh R/o Village Dhanori P.S. Haldaur, District Bijnor, UP 3. Ankul @ Narender Pal Singh S/o Rakesh Kumar R/o Village Rehti Jagir, PS Noor Pur District Bijnor, UP 4. Anil Chaudhary @ Harbeer S/o Lal Singh R/o Village Pipla Jagir PS Noor Pur, District Bijnor, UP 5. Sovind S/o Muneshwar R/o Village Dhanori P.S. Haldaur, District Bijnor, UP SC No.127/13 State vs. Anuj Kumar & Ors. Page 1 of 42 JUDGMENT
The facts in brief of the prosecution case are that on 23.3.2009, _________x_____W/o ______y____ R/o __________________, herein after referred to as the prosecutrix, lodged a report at P.S. New Ashok Nagar, alleging that she was residing at the aforesaid address. Her marriage was solemnized with __Y__ in the court on 07.8.2004 against the wishes of her family members and both of them started living in small Village Haripur Sandoli, Himachal Pradesh and after living for two years they returned to Delhi and started living in her parents house ______________Z-1______________________. Her husband started serving in Blue Bart, Noida. She was blessed with a son and in the month of February 2008 they started living in a tenanted house at Ashok Nagar. Four boys Anuj, Arivnd, Sovind and Ankul, here in after referred to as the accused No. 1, accused No. 2, accused No. 5 and accused No. 3, respectively, were residing in her neighbourhood. Accused Arvind and Anuj were serving in Call Centre and Sovind and Ankul used to stay at their house. Her family members started visiting her at said room. Her mother and brother started telling her to leave her husband __Y__ and marry with accused Arvind. Her mother and brother used to beat her and used to tell her to leave her husband ___Y__. They also used to advise her to level false SC No.127/13 State vs. Anuj Kumar & Ors. Page 2 of 42 allegations of beating and doing wrong act on her husband __Y__. Her mother and brother also started giving threats to her on telephone. She became a little bit confused. During that time in the month of December due to forceful advice of her mother and against the wishes of her husband __Y_, she visited the house of accused Arvind at his village in District Bijnour just before the festival of Holy Bath (Ganga Snan) and returned back at Delhi after staying there for 6/7 days. Her birthday was on 09.02.2009. Her husband had gone to Meerut to attend a marriage in a village and she and her son were only present in the room. At about 11 p.m. in the night accused Arvind came to her room and asked whereabouts of her husband. She replied that he had gone to attend a marriage. At that time the remaining three accused also arrived in the room. Accused Arvind asked her to come in his room. Accused Sovind picked up her son. Ankul was having a bottle in his hand. Arvind threatened her that in case she would not accompany him, remaining accused will throw acid on her son. She was scared and due to fear she went in their room. She was further terrorized and her clothes were removed by accused Arvind and thereafter he committed rape on her. Accused Sovind and Ankul took her photograph and they were also outraging her modesty by touching her body. Accused Arvind kept her whole night in SC No.127/13 State vs. Anuj Kumar & Ors. Page 3 of 42 that room and committed wrong act with her thrice and thereafter he threatened her that in case she tells the incident to others then they would kill her son and would show her photographs to others. Due to fear, she did not tell about the incident to others. On 20.3.2009 Arvind again came to her house and asked her to accompany him. On her refusal he again threatened her that he would show her photographs to others. Due to fear and leaving her son at the house, she accompanied him and sat in a vehicle. Besides, the above mentioned accused persons, another person Anil Chaudhary, herein after referred to as the accused No. 4, who was brother in law (jija) and younger brother of Arvind, were also present. All of them brought her in Sahibabad at two different places and kept her in the room of driver. In the night accused Arvind committed wrong act with her and remaining accused also outraged her modesty. Driver of that vehicle also gave beating to her when she objected to outraging of her modesty. Next day, brother in law (jija) of accused Arvind called her husband by making a telephone call and thereafter she returned to her house. Then she went to the P.S. and lodged her report. On the basis of that report FIR No. 93/09 u/s 365/366/376/354/452/506/34 IPC at P.S. New Ashok Nagar was recorded. She was taken to LBS Hospital where she was medically examined. Doctor observed that her hymen SC No.127/13 State vs. Anuj Kumar & Ors. Page 4 of 42 was not intact. Doctors also took her samples and handed over the same to ASI Santosh Sharma who took her in the hospital. The samples were seized vide seizure memo. Accused Anuj Kumar was arrested on 25.3.2009. His arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. Accused Anuj was also taken to LBS Hospital where he was medically examined and his three MLCs were prepared. Accused Sovind was granted anticipatory bail by the court on 17.4.2009. On 24.4.2009 accused Ankul was arrested. His disclosure statement was recorded. Accused Arvind Kumar and Anil Chaudhary could not be arrested. On completion of investigation, IO filed a charge sheet against the above mentioned accused persons for their trial for the offences punishable u/s 365/366/376/354/452/506/34 IPC, showing accused Arvind Kumar and Anil Chaudhary as absconded.
2. Accused Sovind was formally arrested on 25.6.2009. Accused Anil was granted anticipatory bail by the court on 16.7.2009. Accused Anil was formally arrested on 25.7.2009. Accused Arvind Kumar was arrested on 04.8.2009. Their arrest memo and personal search memo were prepared. Accused Sovind was taken to LBS Hospital where he was medically examined and his MLC was SC No.127/13 State vs. Anuj Kumar & Ors. Page 5 of 42 prepared. Accused Arvind was also taken to LBS Hospital where he was medically examined and his MLC was prepared and samples were taken. It has been mentioned in the MLC of Arvind that samples of semen could not be collected due to failure of his ejaculation. Police filed supplementary charge sheet against above mentioned three accused for their trial for the offences punishable u/s 365/366/376/354/452/506/34 IPC. The supplementary charge sheet was also attached with the main charge sheet.
3. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to Sh. Atul Kumar Garg, Ld. ASJ, Karkardooma Courts, Delhi.
4. The court vide order dated 03.03.2010 opined that prima facie case for framing of charge for the offences punishable u/s 365/366/34 IPC was made out against all the accused; for the offences punishable u/s 452/34 IPC was made out against accused Anuj, Ankul, Arbind and Sovind; for the offences punishable u/s 354/34 IPC was made out against accused Anuj, Ankul, Anil and Sovind; for the offence punishable u/s 376 IPC was made out against SC No.127/13 State vs. Anuj Kumar & Ors. Page 6 of 42 accused Arbind; and for the offences punishable u/s 354/34 IPC was made out against accused Ankul and Sovind. Separate charges for their trial for the said offences were framed and read over to them in vernacular language. They pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case examined prosecutrix as PW1; and HC Sanjay as PW2.
6. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
7. The prosecution further examined Dr. Kavita Gupta, Department of Gynae, LBS Hospital as PW3; Insp. Vijay Pal Singh as PW4; HC Ombir Singh as PW5; Ct. Lalit as PW6; Dr. Anil, JR, Pathology Department, LLRM Medical College, Meerut, U.P. as PW7; Ct. Netrapal as PW8; Retired SI Dharampal as PW9; SI Narender Kumar, AHTU, East as PW10; HC Parmanand as PW11; Dr. Dhruv Sharma, Assistant Director (Biology), FSL, Rohini, Delhi as PW12; and ASI Santosh as PW13.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 7 of 42Plea of Accused Persons
8. After closing of prosecution evidence statements of all the accused persons were recorded u/s 313 of the Code. All the material and incriminating evidence was put to them. Accused Arvind Kumar admitted that PW1 the prosecutrix was residing at New Ashok Nagar in a rented premises and her husband was working at Blue Dart Company at Noida and that he and other accused persons were residing in her neighbourhood and he and Anuj were working in call centre and accused Sovind and Ankul used to stay at the room and that on 04.8.2009 he surrendered in the court and he was arrested vide memo EX.PW9/E and his personal search memo EX.PWPW9/F were prepared. He denied rest of the prosecution evidence and pleaded that the prosecutrix wanted to marry him after giving divorce to her husband. He refused to marry her as his marriage was about to solemnize with other girl. Consequently, the prosecutrix lodged a false report against him. She had also threatened him that in case he did not marry her she will not allow him to marry with other girl. He has not committed sexual intercourse with the prosecutrix on any point of time and he also did not take away her from her house.
9. Accused Ankul also admitted that he was SC No.127/13 State vs. Anuj Kumar & Ors. Page 8 of 42 staying in the neighbourhood of the prosecutrix and denied rest of the evidence and pleaded that __X_ wanted to marry with Arvind and he was against that marriage. Arvind is the son of his maternal uncle and when he tried to make her understand not to marry with Arvind, the prosecutrix got annoyed and falsely implicated him in the present case. Similar is the statements of accused Anuj and Sovind. Sovind also pleaded that he is younger brother of Arvind and prosecutrix was pressurizing Arvind to marry her. He also opposed the marriage and due to that reason she falsely implicated him in the present case. Accused Anil pleaded that he happened to meet with the prosecutrix and Arvind in the engagement ceremony of her sister in law at Village Dhanori, District Bijnor, U.P. He is brother in law of Arvind and he was opposing the marriage of the prosecutrix with Arvind and he was falsely implicated due to that reason.
10. In their defence accused examined Shri Bhagwan, Warden Jail No. 8 & 9, Tihar, New Delhi as DW1.
11. After closing of evidence by both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsels for accused persons and perused file.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 9 of 42Ingredients of alleged offences
12. In order to prove its case that accused persons committed an offence of kidnapping or abducting with intent secretly and wrongfully confining a person, punishable u/s 365 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused persons and secondly, the prosecutrix was abducted or kidnapped with the intention to cause the prosecutrix to be secretly and wrongfully confined.
13. In order to prove its case that accused persons committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused persons and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
14. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; and secondly, that sexual intercourse SC No.127/13 State vs. Anuj Kumar & Ors. Page 10 of 42 was committed with her forcibly against her will and without her consent.
15. In order to prove its case against the accused for the offence of assault or criminal force to woman with intent to outrage her modesty punishable u/s 354 IPC, prosecution has to prove that accused used criminal force to prosecutrix intending to outrage or knowing it to be likely that he will there by outrage her modesty.
16. In order to prove its case against the accused for the offence of house-trespass after preparation for hurt, assault or wrongful restraint punishable u/s 452 IPC, the prosecution has to prove firstly, that accused persons committed house-trespass, assaulted, or wrongfully restrained the prosecutrix or secondly, kept the prosecutrix in fear of causing hurt, or of assault, or of wrongful restraint to the prosecutrix.
17. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved all the offences against all the accused persons beyond any reasonable suspicion and shadow of doubt and all the accused persons are liable to be held guilty and convicted for all the alleged offences.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 11 of 4218. It has been argued by Ld. defence Counsel that prosecutrix told many places where alleged offences were committed but neither she pointed out any place nor any site plan was prepared by the IO.
19. It has also been argued by Ld. defence Counsel that although it has been alleged that accused persons used acid in commission of alleged crime yet the police has failed to recover either the bottle having acid or empty bottle containing alleged acid and this has created doubt in the truthfulness of the prosecution case.
20. It has also been argued by Ld. defence Counsel that the prosecutrix was in love with one of the accused Arvind and she wanted to marry him after divorcing her husband and when accused Arvind refused to accede to her proposal for marriage, she lodged a false report implicating not only accused Arvind but also all his brothers and brother in law.
21. It has also been argued by Ld. defence Counsel that the prosecutrix was in love with accused Arvind to that extent that when accused Arvind was in jail she went to jail to meet him telling to the jail staff that she was wife of accused Arvind and this has also supported the defence SC No.127/13 State vs. Anuj Kumar & Ors. Page 12 of 42 of the accused and created doubt in the truthfulness of the prosecution case.
22. It has also been argued by Ld. defence Counsels that prosecutrix has made substantial contradictions, improvements and additions in her statements which make her testimony unworthy of reliance. It has been further argued by Ld. defence Counsels that the relations between the prosecutrix and her husband _Y_ who was subsequently died were not cordial despite the fact that they performed love marriage. One of the accused namely Arbind was residing in front of their house and during that period the intimacy was developed between the accused and prosecutrix and she wanted to marry with accused Arbind after giving divorce to her husband and that was declined by accused Arbind and due to this reason she falsely implicated accused Arbind and her family members. The allegations were highly improbable and against natural human conduct.
23. On the other hand, Ld. Additional Public Prosecutor for the State argued that the prosecution has proved its case against all the accused persons beyond any reasonable suspicion and shadow of doubt and all the accused persons are liable to be held guilty and convicted SC No.127/13 State vs. Anuj Kumar & Ors. Page 13 of 42 for all the alleged offences. There is no contradiction or embellishment in the testimony of the prosecutrix and if there is any, this is of minor nature and it is likely to happen in every case. The arguments of Ld. Defence Counsel are not convincing. The testimony of prosecutrix is reliable and trustworthy. She also argued that minor discrepancies and embellishments may be ignored in view of the principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material SC No.127/13 State vs. Anuj Kumar & Ors. Page 14 of 42 particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
Evidence of Prosecution
24. PW1 deposed that on 07.8.2004 she got married with __Y__ against the consent of her family in the court at Hapur. After her marriage she alongwith her husband lived in Village Haripur Sandoli, Himachal Pradesh for two years and thereafter they came to Delhi and started residing at Sector VI, R.K. Puram, house No. 496. Her husband was working at Blue Dart Company in Noida. They lived at her parental house for 8-9 months where her son was born and thereafter they started residing in New Ashok Nagar area since 2008 on rent basis. She knew all the accused persons present in the court namely Anuj, Ankul, Arivnd and Sovind as they were her neighbour. Accused Arvind and Anuj were working in Call Centre and Sovind and Ankul used to stay at their house. Her parents used to visit her house at New Ashok Nagar. 09.02.2009 was her birthday. Her husband went to a village in Meerut for attending marriage of his uncle. She was present in her home alongwith her son. At SC No.127/13 State vs. Anuj Kumar & Ors. Page 15 of 42 about 11 p.m. accused Arvind came to her room and asked about her husband. She replied that he had gone to Meerut. Thereafter all the accused namely Sovind and Ankul came in her room. Accused Arvind asked her to go with him in his room. She refused. Accused Sovind lifted her son and Ankul was having acid bottle in his hand and he threatened to pour acid on her son if she did not go with them. They also threatened to kill her husband and her son. They took her to their room. Arvind asked her to remove her clothes. She refused to oblige the accused persons then they again threatened her to pour acid on her son. She requested not to do so but accused Arvind without hearing her removed her clothes and thereafter committed rape on her in the presence of Ankul and Sovind. Accused Ankul and Sovind had also teased her and molested her and outraged her modesty by touching on her body parts. Ankul had taken her photographs in that condition. The accused persons kept her whole night in their room. Even they did not listen that her son was weeping. Accused Arvind committed rape on her thrice. In the morning at about 7 a.m. all the accused persons released her after giving threat that in case she would disclose anything to others they would show her nude photographs and also kill her son. Due to fear she did not disclose any fact to others.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 16 of 4225. On 20.3.2009 her husband went to Panipat for interview. Accused Arvind came to her room at about 3 p.m. in the noon and asked her to accompany her. She refused to go with him. Her child was sleeping at that time. Accused Arvind again threatened to pour acid on her son and show her photographs to others. On account of fear she had gone with Arvind. Outside the street, there was a grey colour Indica car lying parked there. In that vehicle accused Anuj, Sovind, Anil and driver whose name she did not remember, were present there. Accused Anil pulled her in the car by holding her hand. They all took her to Sahibabad. Her son remained at home. After taking several rounds at Sahibabad they had taken her to a room of their relation and also took her a room of driver and kept her there. Ankul and Sovind were also there. Accused Arvind committed rape on her. Accused Ankul, Sovind, Anil, Anuj, Sovind and driver teased and outraged her modesty. The driver of the vehicle was not present in the court. She identified the accused Sovind, Ankul, Anil, Arvind and Anuj correctly in the court. When she refused to obey them, accused Sovind, Anil and driver gave beating to her. They had kept her whole night in the driver room. On the next day her husband was informed by Anil through phone stating that his wife was with them and he should take her.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 17 of 42When her husband arrived there they all threatened her husband stating that whatever he could do can do and they were left at Sector 58 at Noida in the same Indica Car at 1 p.m. They went to their house at New Ashok Nagar. Thereafter, they went to P.S. New Ashok Nagar for lodging complaint. Then a call was received by her husband to the effect that they had already enjoyed with his wife and let her husband keep his wife. They also threatened them that they would not do anything as the police official in U.P. posted at Sector 49 Noida was known to them. Her son was very ill at that time. On account of his illness as well threatening given by accused on phone, she was compelled to leave her son at Hapur at the house of her mother in law. On 22.3.2009 they came back to Delhi after giving medicines to her son at Hapur. After deliberation, they went to Nanak Pura Women Cell. She disclosed all the facts to woman police who brought her to New Ashok Nagar P.S. where her complaint EX.PW1/A was lodged on 24.03.2009. Police thereafter took her to LBS Hospital for her medical examination where she was medically examined. She narrated all the facts to the doctor and disclosed the name of the rapist. Her husband was with her at the P.S. as well as in the hospital. On the next day, accused Anuj was apprehended at her instance by the police. She signed the arrest memo and personal search SC No.127/13 State vs. Anuj Kumar & Ors. Page 18 of 42 memo. He was interrogated and his disclosure statement EX.PW1/D was recorded.
26. PW13 deposed that on the intervening night of 24.3.2009 she was posted at P.S. New Ashok Nagar as ASI. On that day prosecutrix alongwith her husband came to P.S. She produced her statement EX.PW1/A. On the instruction of SHO she made endorsement EX.PW13/A on her statement and rukka was produced before duty officer. Before preparation of rukka the prosecutrix was taken to LBS Hospital for her medical examination and sealed exhibits were received from the hospital were seized vide memo EX.PW13/B which were deposited in the malkhana. After reaching in the P.S. she alongwith prosecutrix and her husband went in search of accused Anuj and Arvind. SI Dharampal and beat Constable had also reached in Sector 2, Noida where accused Anuj was working. Accused Anuj was called at the gate who was identified by the prosecutrix who was interrogated and arrested in the present case vide memo EX.PW1/B and his personal search was conducted vide memo EX.PW1/C. His disclosure statement EX.PW1/D was recorded at the spot. The accused led them to the place of occurrence. On his pointing out, pointing out memo EX.PW9/A was prepared. The accused Anuj was taken to LBS Hospital and his MLC SC No.127/13 State vs. Anuj Kumar & Ors. Page 19 of 42 was collected. Thereafter, she obtained two days police custody remand from Ld. M.M. on filing of an application EX.PW13/C. She moved an application EX.PW13/D for recording statement of prosecutrix u/s 164 of the Code which was recorded on 31.3.2009. Accused Ankul moved an application for anticipatory bail which was granted and he was formally arrested vide memo EX.PW9/B. PW13 identified the accused persons correctly in the court. She further stated that accused Sovind was juvenile and his charge sheet was filed before Juvenile Justice Board. After completion of investigation she filed charge sheet against the accused.
27. PW4 deposed that on 24.3.2009 he was posted at P.S. CWC, Nanak Pura. On that day he was on emergency duty. The prosecutrix came at P.S. alongwith her husband. They handed over a complaint to him. Place of occurrence was revealed as place within the jurisdiction of P.S. New Ashok Nagar. He called woman help line and handed over the complaint as well as complainant to WSI R.P. Minj and directed her to take the complainant at P.S. New Ashok Nagar. In that regard he lodged a DD No. 11 on that day and it was proved as EX.PW4/A.
28. PW3 deposed that on 24.3.2009 he was posted SC No.127/13 State vs. Anuj Kumar & Ors. Page 20 of 42 at P.S. New Ashok Nagar as Duty Officer and on that day ASI Santosh Sharma produced tehrir before him for registration of the case and on the basis of tehrir he registered FIR No. 93/09 u/s 365/366/376/452/506/34 IPC which was signed by him at point A. He also made endorsement on original tehrir EX.PW2/B which was signed by him at point A. Contradictions and embellishments in the testimony of prosecutrix
29. On analyzing the documentary and oral evidence and the documents placed on record and on perusing the documents on record, I find contradictions and embellishments on following points:-
Presence of accused at the place of occurrence
30. The prosecutrix in her statement EX.PW1/A made to the police, on the basis of which FIR was recorded, stated that on 09.02.2009 at about 11 p.m., accused Arvind came to her room and asked whereabouts of her husband. She replied that he had gone to attend a marriage. At the same time his three associates entered into her room. She had told the names of other three associates as Anuj, Sovind and Ankul. As PW1 she deposed that on 09.02.2009 at about 11 p.m. accused Arvind came SC No.127/13 State vs. Anuj Kumar & Ors. Page 21 of 42 to her room and asked for her husband. She replied that he went to Meerut. After that remaining two accused persons namely Sovind and Ankul came in her room. Thus, in the report EX.PW1/A she also included the name of Anuj but in the court she has failed to mention his name. Thus, there is contradiction regarding number of accused persons involved in the alleged occurrence.
Threat by Arvind or Ankul
31. The prosecutrix in her statement EX.PW1/A made to the police stated that after entering into her room Sovind picked up her son. Ankul was having a bottle in his hand. Accused Arvind threatened that if she would not accompany them then they would pour acid on her baby. In the court as PW1 she deposed that accused Sovind had lifted her son and accused Ankul was having acid bottle in his hand and accused Ankul had threatened her that if she would not go with them he would pour acid on her son. Thus, in the statement before the police the prosecutrix stated that it was Arvind who threatened her but in the court she deposed that Ankul had threatened her.
Threat to kill husband or son
32. The prosecutrix in her statement EX.PW1/A made to the police stated that she was scared and accompanied the accused persons in their room.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 22 of 42Thereafter accused Arvind after scolding and threatening her put off her clothes. Her report EX.PW1/A is silent about threatening her to kill her husband. But in the court as PW1 she deposed that the accused also threatened to kill her husband and her son. Thus, there is contradiction on this point.
Taking of photographs
33. The prosecutrix in her statement EX.PW1/A made to the police stated that accused Arvind after scolding and terrorizing her put off her clothes and committed rape on her and accused Ankul and Sovind took her photographs. In the court as PW1 she deposed that accused Ankul had taken her photographs in that condition when she was being raped. Thus, there is contradiction on this point.
Difference of words of threat of second offence allegedly committed on 20.03.2009
34. The prosecutrix in her statement EX.PW1/A made to the police mentioned that on 20.3.2009 Arvind came to her house and asked her to accompany her. She refused to do so and he told her that he would show her photographs to others. She was scared and leaving her child at home, she sat on a vehicle. In the court as PW1 she deposed that on 20.3.2009 when her husband had SC No.127/13 State vs. Anuj Kumar & Ors. Page 23 of 42 gone to Panipat for interview, accused Arvind came to her at about 3 p.m. and asked her to accompany him. She refused to go with him. Her child at that time was sleeping. Accused again threatened her to pour acid upon her son and published her photographs to everyone. On account of fear she went outside the gali with Arvind and found a grey colour Indica car standing there and Anil pulld her in the car by holding her hand. Thus, there is difference of words of threat. Her report is silent about giving threat or pouring acid on her son but in the court she deposed regarding pouring of acid. Besides, there is contradiction about role of accused Anil. In statement EX.PW1/A the prosecutrix did not assign any role to accused Anil.
Visit of Bijnor by the prosecutrix
35. The prosecutrix, in her statement EX.PW1/A made to the police, mentioned that she was sent to Bijnor alongwith Arvind by her mother under pressure and she had gone there despite objection raised by her husband. The statement of the prosecutrix as PW1 in the court is silent about objection by her husband on her visit to Bijnor.
Role of family members of the prosecutrix
36. In EX.PW1/A the prosecutrix mentioned that her mother and brother used to visit her house at New Ashok Nagar and used to advise her to leave her husband __Y_ SC No.127/13 State vs. Anuj Kumar & Ors. Page 24 of 42 and marry one of above mentioned four boys namely, Arvind. Her mother and brother also used to beat her to compel her to leave her husband and they also used to tell her that she should level false allegation against her husband that he was doing dirty act and many times her mother on phone also used to scold her and directed her to leave her husband __Y_. This part of the statement is missing in her statement made before the court. Rather, she deposed in the court that her parents did not use to say anything to her regarding her married life.
Other embellishments
37. Prosecutrix as PW1 in the court deposed that accused Ankul, Anil, Arvind and Anuj had kept her whole night in the driver room. They had threatened her by saying that "they are jaat and they will *** my husband and son and would go from there". The prosecutrix did not mention these facts in her report EX.PW1/A.
38. She deposed in the Court that her parents did not use to say anything to her regarding her married life. The fact that colour of the car was grey was not mentioned in the statement made to the police. She did not tell to the police that Anil had pulled her in the car by holding her hand. The fact that accused took several round in the car was not recorded in her statement made to the police. The SC No.127/13 State vs. Anuj Kumar & Ors. Page 25 of 42 word that they had enjoyed with his wife and let the husband of prosecutrix keep his wife were not found mentioned in the statement recorded by the police. Thus, there are some embellishments in the statement of the prosecutrix.
Impact of Contradictions and Embellishments on the case
39. It has to be seen whether these contradictions and embellishments are of such a nature that may create reasonable suspicion and shadow of doubt in the prosecution case?
40. My attention goes to a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of SC No.127/13 State vs. Anuj Kumar & Ors. Page 26 of 42 offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
41. It has to be seen if the above referred contradictions can be terms as minor contradictions or these are the contradictions on material points which may create any doubt about the genuineness of the occurrence under adjudication. After carefully scrutinizing the evidence available on record, I am of the view that the principles of law laid down in State v. Jai Hind, (supra), are not applicable in the present case. I am of the view that principles of law laid down in case Babu Lal and Others v. State, (supra) are applicable on the facts of present case. The discrepancies in the testimonies of the prosecution witnesses particularly mentioned above have created doubt in the truthfulness of the prosecution case.
42. My decision further finds support by principles of law laid down in a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031. The Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling SC No.127/13 State vs. Anuj Kumar & Ors. Page 27 of 42 reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
43. After considering the arguments of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has failed to prove its case against accused beyond any reasonable suspicion and shadow of doubt. The reasons which support my conclusion are firstly, that as discussed herein above, there are material contradictions, inconsistencies and embellishments in the testimony of the prosecutrix which has created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
Delay
44. Secondly, the arguments of Ld. Defence Counsel that there is unreasonable unexplained delay in reporting the matter to the police is convincing. The alleged incident firstly took place on 09.02.2009 and subsequently it took place on 20.3.2009 but the matter was reported only on 24.3.2009. It was mentioned by the prosecutrix in her statement EXPW1/A that she did not report the matter to the police as she was terrorized by the accused persons and it was threatened to her that in case she disclosed the SC No.127/13 State vs. Anuj Kumar & Ors. Page 28 of 42 incident to others they would kill her baby and they would display her photographs which were taken by Ankul at the time of commission of rape by Arvind and due to fear she did not disclose this incident even to her husband. In the court she disclosed on this aspect that accused persons kept her in their room whole night and accused Arvind committed rape on her in that night thrice. In the morning at about 7 a.m. all the accused persons released her after giving threat that in case she would disclose anything to anyone they would show her nude photographs to everyone and they would kill her son. Thereafter, she returned back to her home and did not disclose any fact to anyone. In respect of incident of 20.3.2009 she stated that she was kept by the accused persons whole night in the driver room and they threatened her that they were the jaat and they would kill her husband and son. On the next day accused Anil informed her husband through phone that his wife was with them and that he should take her. Her husband reached there and she and her husband were dropped at Sector 57, Noida. A phone call was received by her husband on his phone that he would not be able to do anything even if he lodged the complaint as one of the police official (daroga) in U.P. police posted at Sector 49, Noida was known to them. For that reason and due to illness of their son she and her husband were compelled to SC No.127/13 State vs. Anuj Kumar & Ors. Page 29 of 42 leave for Hapur. They left their son there and returned back to Delhi on 23.03.2009 and arrived at Nanak Pura police cell from there they were brought to New Ashok Nagar, Delhi. The explanation of the prosecutrix is not convincing. Besides, it could not be corroborated by other witness, i.e. her husband due to his demise during the trial of this case.
45. My decision finds support by principles of law laid down in a case Jagdish v. State, (Delhi), 1987(1) R.C.R. (Criminal) 613 : 1987(1) AICLR 465, wherein the Delhi High Court observed:
"8. This inference is further fortified from the delay of 46 hours and 45 minutes in the lodging of the First Information Report after the alleged occurrence. Regarding the importance of the lodging of the First Information Report at the earliest, the Supreme Court authority reported as Thulia Kali v. The State of Tamil Nadu, 1972 S.C.C. (Crl.) 543, is highly instructive wherein it held as follows at page 547 :- "First Information Report in a Criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite after results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the SC No.127/13 State vs. Anuj Kumar & Ors. Page 30 of 42 advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
9. In that case there was delay of more than 20 hours in lodging the F.I.R. though the police station was only at a distance of two miles and it was held that this circumstance would raise considerable doubt regarding the veracity of the case and it was not safe to base conviction upon to."
Medical evidence
46. Thirdly, the medical and scientific evidence did not support the testimony of the prosecutrix. As stated above, the first incident of alleged rape occurred on 09.02.2009 and second incident took place on 20.3.2009. The prosecutrix was examined on 24.3.2009. It has been mentioned in the MLC EX.PW3/A that after alleged incident she had taken bath. She also performed sexual intercourse with her husband after the incident. She did not preserve any cloth which she was wearing at the time of commission of alleged incident. Although, it has been mentioned in EX.PW3/A that her vagina admitted two fingers yet this will lead to no consequence as admittedly she had sexual intercourse with her husband after the alleged occurrence. The accused Arvind also got medically examined vide MLC No. 7 dated 06.8.2009. It has been mentioned therein that SC No.127/13 State vs. Anuj Kumar & Ors. Page 31 of 42 semen of the accused could not be taken due to his failure for ejaculation. There is no report of any doctor that accused was competent to perform sexual intercourse. Therefore, the case of the prosecution could not be supported by medical evidence that accused was competent to perform sexual act. Thus, there is lack of medical and scientific evidence in the present case which creates reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
47. My decision finds support by a case Sanya alias Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784, wherein it was observed by Orissa High Court that:
"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no independent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical evidence is also absent with regard to the opinion as to the fact of rape. For the reasons above the conviction is liable SC No.127/13 State vs. Anuj Kumar & Ors. Page 32 of 42 to be set aside."
[Emphasis supplied]
48. My decision further finds support by a case Lachhman and another v. State, 1973 CRI. L.J. 1658, wherein the Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged o have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused it would be most dangerous to base a conviction on her uncorroborated testimony alone." [Emphasis supplied]
49. Fourthly, the arguments of Ld. Defence Counsel that it was improbable for the accused Arvind to commit rape with the prosecutrix in the presence of so many persons seems to be probable. The prosecutrix in her statement stated that accused committed sexual intercourse with her thrice in the presence of other three SC No.127/13 State vs. Anuj Kumar & Ors. Page 33 of 42 accused at the time of first incident and in the presence of so many persons at the time of second incident. The prosecutrix admitted that accused Anil is brother in law and other three accused are brothers of accused Arvind. It seems improbable to commit sexual intercourse with the prosecutrix in presence of all three brothers and one brother in law.
Love affairs between the prosecutrix and accused Arvind
50. Fifthly, as mentioned above, it was vehemently pleaded that the prosecutrix was in love with accused Arvind. She wanted to marry him after divorcing her husband but that proposal was not acceptable to accused Arvind or other accused persons and denial of marriage resulted into their false implication in the case by the prosecutrix. The prosecutrix, on this aspect, denied the suggestion of Ld. Defence Counsel that she celebrated her birthday on 09.02.2009 at zoo in Delhi with accused Arvind and she spent whole day with him and cut the cake. She further denied the suggestion that she sent her husband out of Delhi deliberately as she wanted to celebrate her birthday with accused Arvind. She further denied the suggestion that in the evening of 09.02.2009, she once again cut the cake on the occasion of her birthday by calling children of neighbour and children of landlord. She SC No.127/13 State vs. Anuj Kumar & Ors. Page 34 of 42 further denied the suggestion that she went to Central Jail, Tihar for meeting Arvind mentioning her name as _Z2_ and mentioned her relations with the accused as his wife. She further denied the suggestion that before registration of case she used to go with Arvind for outing. However, she admitted that she went to Gajraula alongwith Arvind after taking prior permission from her husband in the year 2008 to attend ceremony of sister of Arvind. She stayed at the house of Arvind at Bijnor for about 5/6 days. She explained that accused Arvind asked her to go to Bijnor for attending the marriage ceremony of his sister and in fact all the accused persons requested her to come to their house at Bijnor to meet their family members and to attend marriage of their sister and during her stay there she came to know the names of accused persons. This has created suspicion that there may be some relations between the prosecutrix and the accused Arvind and that is why she preferred to visit his village in Bijnor prior to the date of occurrence. This also support plea of the accused persons.
Visit of prosecutrix to jail to meet accused Arvind
51. Sixthly, DW1 on this aspect deposed that he has brought the summoned record regarding the visitors detail of accused Arvind Kumar. As per the computerized record EX.DW1/A one _Z2_ D/o Sh. Munish visited him on SC No.127/13 State vs. Anuj Kumar & Ors. Page 35 of 42 21.10.2009. He also proved the PID number 293661 of accused. It has been argued that the photograph of a lady on EX.PW1/A is in fact the photograph of the prosecutrix. Prosecutrix denied the suggestion that she went to Central Jail, Tihar for meeting Arvind mentioning her name as _Z2_ and mentioned her relations with the accused as his wife. There is no other evidence on this aspect. In view of the evidence on record and particularly discussed herein above it is held that the prosecutrix visited the accused Arvind in jail. This also support plea of the accused persons.
Offence of kidnapping, abducting or inducing woman for marriage etc.
52. Seventhly, as mentioned above the prosecutrix deposed that on 09.02.2009 her husband went to his village and she was alone at her room with her son. At about 11 p.m. accused Arvind came to her room and asked about her husband. She replied that he had gone to Meerut. Thereafter all the accused namely Sovind and Ankul came in her room. Accused Arvind asked her to go with him in his room. She refused. Accused Sovind lifted her son and Ankul was having acid bottle in his hand and he threatened to pour acid on her son if she did not go with them. They also threatened to kill her husband and her son. They took her to their room. It was suggested to SC No.127/13 State vs. Anuj Kumar & Ors. Page 36 of 42 the prosecutrix that she visited zoo, Delhi with accused Arvind and she spent whole day with him and cut the cake. It was further suggested to her that she sent her husband out of Delhi deliberately as she wanted to celebrate her birthday with accused Arvind or that in the evening of 09.02.2009, she once again cut the cake on the occasion of her birthday by calling children of neighbour and children of landlord which she denied. Thus, there is no evidence for proving offence of kidnapping, abducting or inducing woman for marriage etc. Offence of kidnapping or abducting with intention secretly and wrongfully confining a woman
53. Eightly, PW1, on this aspect, deposed that on 09.02.2009 she was compelled to go with accused Arvind, Sovind and Ankul from her room to the room of accused Arvind where she was allegedly raped. She also deposed that on 20.3.2009 she was again compelled to accompany with accused Arvind and she was taken to a room in Sahibabad and after committing rape on her, her husband was called and they were dropped at Sector 58 of Noida. Thus, the evidence of prosecution is silent on wrongful or secret confinement of the prosecutrix.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 37 of 42Preparation of site plan and recovery of articles
54. Ninenthly, the prosecution has also failed to prove site plan and recover the alleged acid bottle. As per the statement of the prosecutrix PW1 offences were firstly committed on 09.02.2009 at room of the prosecutrix as well as at the room of the accused persons and second time the offence was committed at the room of the prosecutrix and at a room at unknown place at Sahibabad, Ghaziabad, U.P. In cross examination, the prosecutrix admitted that she was unable to tell the exact measurement of the house where the accused persons committed rape with her. This house falls within the jurisdiction of P.S. Ghaziabad. Police officials never took her in Sahibabad area nor she had shown the place i.e. the said house where the alleged offence was committed, to the police. The IO did not prepare site plan of the place where she was residing with her husband and where the alleged offence was committed. No photographs of the spot were taken and no articles were lifted by the police. IO PW13 admitted that no site plan was prepared at the spot and nothing was recovered from the spot. On perusal of judicial file I find that there is no site plan on the record. Thus, this argument of Ld. Defence Counsel is convincing that the IO did not prepare site plan of the place of occurrence where the alleged offences were committed SC No.127/13 State vs. Anuj Kumar & Ors. Page 38 of 42 and no articles were seized from the place of occurrence.
Standard Of Proof
55. Tenthly, the prosecution evidence has failed to achieve the standard of proof of proving its case against the accused as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
Two Possibilities
56. Eleventhly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an SC No.127/13 State vs. Anuj Kumar & Ors. Page 39 of 42 accused, the accused is undoubtedly entitled to the benefit of doubt."
57. My attention also goes to a case Ajmer Singh and another v. State of Haryana, II-1989(1) Crimes 424, wherein it was held by P&H High Court that:
"It is not necessary for the accused to substantially prove their plea. Suffice it to say that if the accused succeeds in creating a doubt, they would be entitled to benefit of it."
The principles of law laid down in above cases are applicable on the facts of present case and therefore, it is held that accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
58. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. This principle is applicable in the present case. It would be just fair and appropriate, if accused persons are given benefit of doubt as the prosecution has failed to prove its case against them beyond any reasonable suspicion or shadow of doubt.
CONCLUSIONS
59. Consequent upon above reasons, discussion and SC No.127/13 State vs. Anuj Kumar & Ors. Page 40 of 42 evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove its case against all the accused persons that all or any of them in furtherance of their common intention committed offence of kidnapping or abducting with intent secretly and wrongfully to confine person punishable u/s 365 IPC, offence of kidnapping, abducting or inducing woman to compel her marriage, etc. punishable u/s 366 IPC or the accused Anuj Kumar, Ankul, Arvind Kumar and Sovind, in furtherance of their common intention, committed offence of house-trespass after preparation for hurt, assault or wrongful restraining punishable u/s 452/34 IPC or accused Anuj Kumar, Ankul, Anil and Sovind, in furtherance of their common intention, committed offence of assault or criminal force to woman with intent to outrage her modesty punishable u/s 354/34 IPC or accused Arvind Kumar committed offence of rape punishable u/s 376 IPC. Resultantly, by giving them benefit of doubt, all the accused persons are acquitted for the said offences.
60. However, all the accused persons are directed to furnish within a week personal bond for a sum of Rs. 10,000/- with one surety each of like amount as per provisions of Section 437A of the Code for a period of six months.
SC No.127/13 State vs. Anuj Kumar & Ors. Page 41 of 4261. After furnishing of surety bonds file be consigned to Record Room.
Announced in the Open Court Dated:09.09.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.127/13 State vs. Anuj Kumar & Ors. Page 42 of 42