Delhi District Court
State vs Sonu S/O Sh. Babloo on 28 April, 2018
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE06, WEST
TIS HAZARI COURTS, DELHI
State Case UID No.................................... 57398/16
New SC No. 139/17
Old SC No. 71/13
FIR No. 124/12
PS Anand Parbat
U/S: 376/511/377 IPC
State
Versus
Sonu S/o Sh. Babloo
R/o H. No. F185, Gyatri Colony, Near Ramjas Ground,
Baljeet Nagar, Anand Parbat, New Delhi
Date of institution : 04.03.2013
Judgment reserved on : 27.04.2018
Judgment delivered on : 28.04.2018
ORDER/JUDGMENT: Accused is convicted for the offences punishable u/s
354 IPC
J U D G M E N T
1.In brief the prosecution story is that one Smt. R, the mother of the prosecutrix Ms. S ( identity withheld) has reported the matter in PS Anand Parbat vide her complaint Ex. PW1/A raising allegations against the accused Sonu that on 09102012 at about 4:30 PM when she had gone for her job she was informed by one neighbour namely Kamlesh that she should reach home as her child is to be taken to the hospital and when she reached in her house she found her daughter Ms. S, the prosecutrix, aged about 10 years was crying and narrated the incident that she was sleeping UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 1 at home and one Sonu came in her room gagged her mouth and thereupon she had awakened and tried to remove his hands from his mouth but could not succeed thereupon Sonu removed her trouser (salwar) and also unzipped his pant and tried to insert his penis into her vagina and lied down upon her and when the other children had seen him and shouted then he ran away and that an action be taken against the accused Sonu.
On the basis of such statement/complaint, an FIR No. 124/12, U/s 376/511 IPC was registered on 09.10.2012 and the matter was entrusted upon one lady police official ASI Kiran Sethi for investigation. On completion of the investigation, the chargesheet was filed against the accused for the offences under Section 376/377/511 of the Indian Penal Code, 1860 (IPC).
2. Vide order dated 27042013, the Charges were framed by the Predecessor Court of Sh. Rajnish Kumar Gupta, for the offences punishable under section 376/511 IPC and under section 377 IPC stating therein that on 09.10.2012 at about 3:30 pm, at F230, Jhuggie, Gayatri Colony, Baljit Nagar, Anand Parbat, New Delhi, the accused has attempted to commit rape on Ms. S (a minor girl aged about 10 years) and secondly that the accused had put his sexual organ into the mouth of the prosecutrix and thereby he had committed the offences punishable u/s 376/511 IPC & section 377 IPC Act, to which the accused pleaded not guilty and claimed trial.
3. To prove the guilt of the accused, the prosecution has examined 15 witnesses:
UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 2a) The complainant/public witnesses:
• Ms. R, the complainant, the mother of the prosecutrix, PW1 • Ms. S, the prosecutrix/victim, PW2, • Sh. Sanju, the neighbour of the complainant, PW6 • Smt. Kamlesh, the neighbour of the complainant, PW9.
These were the material public witnesses produced by the prosecution to prove the allegations leveled against the accused. They have exhibited the documents viz., the complaint Ex. PW1/A, MLC of the prosecutrix Ex. PW1/B, arrest memo and personal search memo of the accused Ex. PW1/C & PW1/D, statement of the prosecutrix recorded u/s 164 Cr.PC Ex. PW2/A
b) Police Witnesses:
• HC Vijay Singh, PW3 to prove DD No. 23A Ex. PW3/A, the FIR Ex. PW3/B, certificate u/s 65B of the Indian Evidence Act, Ex. PW3/C, Endorsement on the rukka Ex.PW3/D. • HC Vijay Pal, MHCM, PW13, to prove the entry No. 2038 in register No. 19 Ex. PW13/A, RC No. 145/21/12 Ex. PW13/B and receipt of the same Ex. PW13/C. These witnesses were the formal witnesses, who came to prove the documents on record.
Whereas • Ct. Deepak, PW7 • Ct. Nishu, PW8, • Ct. Sandhya, PW10, • Ct. Ashok, PW11, • Ct. Chandernaik, PW14 & • W/ASI Kiran Sethi, PW15 These were the witnesses of investigation at different stages and they had come to the witness box to prove their roles played by them during the course of investigation and they had exhibited the documents viz., Seizure memos Ex. PW10/A, PW11/A, endorsement made on complaint Ex. PW15/A. Request application of the IO for recording of the statement u/s 164 Ex. PW15/B.
c) Medical Witnesses:
• Dr. Keerti Patel, Sr. Resident, Lady Harding Medical College, New Delhi, PW4, who examined the prosecutrix and exhibited the MLC Ex. PW1/B of the prosecutrix.UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 3
• Dr. Shipra Anand, Sr. Resident, Lady Harding Medical College, New Delhi, PW5, who examined the accused and exhibited the MLC Ex. PW5/A of the accused.
d) Other witnesses:
• Ms. Kiran Gupta, Ld. MM, as PW12, who recorded the statement u/s 164 Cr.PC of the prosecutrix already Ex. PW2/A, and further exhibited the application for recording of the statement u/s 164 Cr.PC Ex. PW12/A & certificate to the proceedings Ex. PW12/B.
4. On concluding of the prosecution evidence, all the incriminating circumstances were put to the accused under Section 313 Cr.PC., wherein he refuted all the allegations leveled against him and had pleaded his innocence and he took the plea that he had been falsely implicated in the case at the instance of the mother of the prosecutrix as she had taken Rs. 5,000/ from his mother and due to dishonest intention for not paying the same, she has implicated him in the present false case. In his defence, the accused has examined Smt. Kaushalya, his mother as DW1. In her examination DW1 has deposed that, The mother of the prosecutrix namely Rajo W/o Sh. Rati Ram used to work with me in a school at Pusha Delhi. Smt. Rajjo borrowed Rs. 5,000/ from me in the month of January, 2012.
When in the month of September, 2012, I asked her to return my money, then her intention became dishonest and denied for the same. She also quarreled with me and threatened me to dire consequences.
Thereafter, in the month of October, 2012, Rajjo hatched a conspiracy and falsely implicated my son in the present case'.
5. Ld. Addl. PP for the State has submitted that the prosecutrix has supported the prosecution case wholly not only in her statement Ex. PW2/A recorded u/s 164 Cr.PC but also in her depositions made before UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 4 the court as PW2, thereby proving the allegations of attempt to rape and carnal intercourse punishable U/s 376/511 IPC & 377 IPC respectively and that the prosecutrix was a minor girl of the age of 10 years at the time of incident thus, the prosecution has successfully proved the case through the direct as well complete chain of circumstantial evidence and there appears no reasons to disbelieve the prosecutrix. Also that the version of the prosecutrix has been corroborated through the testimony of her mother examined PW1 and also through the medical evidence i.e. MLC Ex. PW1/B. Thus, it was submitted that there exists enough evidence against the accused to establish the commission of offences u/s 376/511 IPC & u/s 377 IPC, by the accused.
6. Sh. Anil Kumar, Ld. Counsel for the accused has submitted that accused Sonu has been falsely implicated at the instance of the mother of the prosecutrix as she has borrowed Rs. 5,000/ from the mother of the accused and later on her intention became dishonest and by using her daughter, the prosecutrix she has falsely implicated the accused in the present case and that PW6, the public witness, the neighbour of the complainant in his crossexamination has admitted regarding the dispute between the mother of the prosecutrix and the mother of the accused and that the investigating officer has not properly investigated the matter. Further, it is submitted that the MLC Ex. PW1/B does not suggest internal or external injuries on the lower part of the prosecutrix and only a bruises was present on the upper lip of the mouth of the prosecutrix, which does not support the case of the prosecution regarding the offences of rape and carnal intercourse or any attempt that of allegedly committed by UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 5 the accused upon the prosecutrix.
Also that as per the statement of prosecutrix u/s 164 and her testimony as PW1 she was sleeping in her jhuggi along with his brothers and sisters, who were the witnesses who must have firstly heard the alarm raised by the prosecutrix during occurrence, but none of them have been produced by the prosecution to prove the fact that such occurrence had taken place and the prosecution has kept them aback from the trial for which an adverse inference can be drawn against the case of the prosecution that in case of their production they may not support the prosecution case. Further that independent witness Sh. Sanju, PW6 and Smt. Kamlesh, PW9 produced by prosecution have not supported the case of the prosecution.
Also that there are some contradictions and exaggerations in the testimony of PW1, the complainant and PW2, the prosecutrix, which are material in natures and fatal to the prosecution case. Thus, it was submitted that the case of the prosecution is within the shadow of doubt, and was not proved beyond reasonable doubts, and the accused is entitled for benefit of doubt.
7. I have given my thoughtful considerations to the rival submissions of Ld. Addl. PP for the State and Sh. Anil Kumar, Ld. Counsel for the accused and have perused the evidence available on record, meticulously in the light of such contentions.
8. The prosecution, in order to establish its case for the offences under section 376/511 IPC & 377 IPC, alleged against the accused namely UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 6 Sonu, facing trial before this court, must establish the following ingredients:
For offences punishable under section 376 IPC
i) that the accused had sexual intercourse with the prosecutrix;
ii) that the act was done under circumstances falling under the description specified in section 375' What acts constitutes the offence of rape is described U/s 375 IPC that reads as under :
375. Rape : A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
Firstly- 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 through 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.
For offences punishable under section 377 IPC
i) that the accused had carnal intercourse with the victim;
ii) that such intercourse was against the order of nature;
iii) that the accused did the act voluntarily;
iv) that there was penetration.
9. On careful perusal of the evidence on record, it is observed that the entire prosecution case was based on the testimonies of Ms. S, the prosecutrix, examined as PW2, Ms R, the complainant, the mother of the prosecutrix examined as PW1, who were the sterling witnesses of the prosecution.
UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 7The relevant extract of the testimony of PW2, the prosecutrix is extracted below:
" In the month of October last year in the evening, I along with my other brothers and sisters were sleeping in our jhuggi. Sonu Bhaiya, the accused present in the court today ( correctly identified by the witness) entered into the jhuggi. He gagged my mouth and removed my salwar. He unzipped his pant and placed his penis on my vagina. He laid upon me.
When I raised alarm, he slapped me and I tried to push him. He got up and put his penis in my mouth. I raised alarm. He also pressed my breast. On my raising alarm, he ran away.
The neighbourers gathered there. I also received injuries on my face and lips which was caused by the accused with his nails".
10. Further, the relevant extract of her statement u/s 164 Cr.PC is extracted below:
' Yesterday at around 3:30 pm, while I was sleeping in my jhuggi on the ground with one of my friend who also lives in the same neighborhood, my brothers and other sisters were sleeping on the bed. There is no door of the jhuggi. My Bua's son Sonu who lives near to our jhuggi entered in our jhuggi. While I was asleep, he put his hand on my mouth and removed my salwar. He also opened the zip of his pent. Then he laid upon me. He tried to put his toilet wali jagah inside my toilet wali jagah. I tried to push him.
11. Further the prosecution has examined Ms. R, the complainant, the mother of the prosecutrix, as PW1, who was also a material witness of the prosecution.
The relevant extract of the testimony of PW1, the complainant is extracted below:
'At about 4/4.30 pm my neighbour Ms. Kamlesh called me on my phone and asked me to reach home immediately as prosecutrix is being taken to hospital. I immediately reached at my house. Police was also present there. Prosecutrix was crying.
Prosecutrix told me that the accused present in the court today ( correctly identified) had come to their house and he gave Rs. 10/ to my son Sunny for buying some sweet for himself and the accused Sonu entered the house. The accused put his hand on the mouth of the prosecutrix and UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 8 removed her salwar and tried to molest her by putting penis on the vagina of the prosecutrix ( usne apni pishab wali jagah pe ladki ki pishab wali jagah per laga di.
The accused laid upon the prosecutrix. Prosecutrix raised alarm and started weeping. Then the accused ran away. He rapped my daughter.
There were nails marks on the lips and mouth of the prosecutrix. There were also scratch on the mouth of my daughter and little bit blood was also noticeable on scratch mark'.
12. For proving the allegations against the accused, the prosecution has produced Smt. 'R', the complainant, PW1, Ms. 'S', the prosecutrix as PW2, one Sh. Sanju, PW6 and Smt. Kamlesh, PW9 and apart from these witnesses the other police witnesses who came to the witness box for their role played in the investigation.
Smt. 'R', the complainant, PW1, Sh. Sanju, PW6 and Smt. Kamlesh, PW9 were not the eye witnesses of the incident as they had reached on the spot after the alleged incident on receiving information about the occurrence.
13. Thus, basically for proving the allegations against the accused, the case of the prosecution is based on the sole testimony of the Ms. S, the prosecutrix and as per the case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21 ' decided by the Hon'ble Supreme Court, the quality of the evidence of prosecutrix on the basis of her sole testimony, must be very high to fetch a conviction against the accused and wherein it was observed that, "... the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable.
The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 9 the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it.
...........
...........
Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished.
To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
14. Thus, on appreciation of evidence of PW2, the prosecutrix, it is observed that the prosecutrix has testified in the court that accused entered into her jhuggi, where the prosecutrix was sleeping with her friend, brothers and sisters. He gagged her mouth, removed her salwar ( lower trouser), unzipped his pant and placed his penis on her vagina and he laid upon her and when she raised alarm, he slapped her and the prosecutrix UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 10 tried to push him. Further that he got up and put up his penis in her mouth. She raised alarm and on raising alarm he ran away.
Thus, it is clear from her testimony that nothing has been stated regarding the penetration of the urinating part of the accused into the vagina of the prosecutrix, nor even a whisper has come in the testimony of the prosecutrix that the accused tried to insert or penetrated his penis into her vagina during occurrence. Thus, the basic ingredients of penetration for proving the attempt of rape as defined u/s 375 IPC is absent in the evidence of the prosecutrix.
Further regarding her testimony that the accused put his penis in her mouth, there is clear 'improvement' on this aspect in her testimony and on this aspect, her statement Ex. PW2/DA was 'confronted' with her testimony where it was not so recorded and this is the material fact, which has been confronted to take away this portion from her testimony to shake her version to the extent of this aspect of her testimony. Thus, the factum of commission of unnatural sex has not been proved on record by the prosecution through the version of prosecutrix to attract or for proving the offence under section 377 IPC.
As per the statement Ex.PW2/DA of the prosecutrix, it was reported that 'I was sleeping on the ground with my friend. Sonu gagged my mouth I had difficulty in breathing and tried to remove his hand from my mouth but could not remove his hand. He removed my trouser (Salwar) unzipped his paint placed his urinal organs upon my urinal portion (vagina) and lied down upon me I pushed him he pressed my breast I cried and the children got up and shouted for help thereupon public came and Sonu ran away.'
15. The other witnesses, either the mother of the prosecutrix, who reached on the spot on receiving information from one Smt. Kamlesh could prove the occurrence being she was not eye witness and the complainant who UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 11 reported the matter to the police on receiving information on narration of the incidence from the mouth of her daughter and thus, regarding the proof of the allegations her testimony remained within the ambit of 'hearsay evidence'.
16. Similarly, Sh. Sanju, PW6, Smt. Kamlesh, PW9 were the public witnesses from the neighbourhood area and they were not able to prove anything regarding the allegations of the commission of offences alleged against the accused as they had also reached on the spot only after the occurrence and when the accused had already ran away from the spot. They were witnesses of circumstantial evidence to prove as to what had happened 'after' the occurrence.
17. The contentions of Ld. Counsel for the accused were that these witnesses were hostile and did not support the prosecution case rather Sh. Sanju had deposed in the court that accused was sitting with him for two hours and that Smt. Kamlesh had admitted that there used to be quarrel between the mother of the prosecutrix and the mother of the accused as they were the employee of the same work place at one point of time. But these contentions regarding the 'hostility' of these two public witnesses that they had not supported the prosecution case was of no help for the accused as they were not the 'eye witnesses' and even if it is believed that the accused was sitting with the witness Sanju then it is possible that he might have gone there only after the occurrence in order to prove his ill design to show his presence with his friend but it does not prove that he was not present on the spot at the time of occurrence because otherwise also the 'identity' as well as 'incidence' has been proved UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 12 through the unimpeached testimony of prosecutrix regarding the activities of the accused that he entered into her jhuggi gagged her mouth, removed her trouser and placed her male organ upon her vagina.
18. Thus the prosecution was able to prove the facts through the testimony of the prosecutrix that the accused had entered into her jhuggi, gagged her mouth and placed her male organ upon her urinating part thereby proving the offices u/s 354 IPC.
19. So far as the medical evidence is concerned, the MLC Ex. PW1/B has shown the bruises & swelling present on the upper lip of the mouth of the prosecutrix and such injuries are only suggestive of the acts of gagging of her mouth by the accused and receiving of the injuries in the from of bruises and swelling on upper lip during that process and even the nail marks as testified by her mother seen by her when she reached her house on receiving the information are only suggestive of 'gagging' of her mouth for the purpose of outraging her modesty.
MLC Ex. PW1/B has not suggested any penetration of urinating male organ into her vagina.
20. Further, as per the FSL result semen could not be deducted on the exhibits of the prosecutrix and accused and even the DNA finger printing examination was not conducted for the exhibits i.e. 1q1, 1q2, 1r2 ( blood samples of victim), exhibits 4a, 4b ( blood sample of accused) & exhibits 5 ( blood stained cotton wool swab of accused) as semen could not be detected on the aforementioned exhibits.
UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 1321. Thus, neither the ocular evidence nor the scientific evidence nor the circumstantial evidence could prove the allegations of attempting of penetration of the urinating male organ of the accused into the vagina of the prosecutrix.
22. As per the activities of the accused established on record, in view of the observations made in case titled as Raju Pandurang Mahale V. State of Maharashtra, AIR 2004 SC 1677, the activities of the accused testified by the prosecutrix in her testimony were only covered within the ambit of commission of outraging modesty of the prosecution and with intentions to do so, thereby proving an offence U/s 354 IPC.
In that case the Hon'ble Apex Court has described as to what constitutes an outrage to female modesty.
It was observed therein that, 'what constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex.
The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.
The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object'.
23. So far as circumstantial evidence is concerned. In this case the investigation is very shaky because as per the evidence, the 'age' of the UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 14 prosecutrix was not known to either of the parents of the victim, the prosecutrix herself was illiterate and she had never gone to the school, thus, having no school records to prove her date of birth. Even then the IO had not taken pain for determining the 'age' of the prosecutrix through ossification test or otherwise and thus, on this aspect the investigation was found very faulty and shaky.
24. Further, as per the testimony of the prosecutrix, the eyewitnesses on the spot were available at the time of occurrence as her friend, brothers and sisters were also sleeping with her at the time of occurrence, and on raising alarm, they had woke up but none of such children was either inquired by the IO and a very 'casual' answer has been given by the IO that they were the small children that is why they were not 'inquired' into but nowhere in the records their name or the age was not mentioned throughout the record to show as to what was their age, though they were the eye witnesses of the occurrence and their evidence could have been the 'best evidence' of prosecution but this piece of vital evidence was kept aback by the investigating agency and was a great dent in the prosecution story.
But it is a well settled principles of law that the justice cannot be a casualty of investigation as observed in the case titled as Manoj @ Manu vs. State of Delhi, 2001 I AD ( Delhi) 67, wherein it is observed that, 'Justice should not be made casualty of wrong committed by the Investigation Officer'
25. In the instant case despite the scanty investigation, the occurrence has been proved by the prosecution through the testimony of prosecutrix who was sterling witness of the prosecution and has proved the activities of the UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 15 accused those were covered within the ambit of outraging her modesty, covered within the ambit of ofence punishable u/s 354 IPC.
For the sake of reference, Section 354 IPC as it was in 2012 in the book of crimes, is reproduced below :
354. Assault or criminal force to woman with intent to outrage her modesty -
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
26. In the present case, nothing contrary has been proved by the accused in his defence except mere assertions of the facts that the mother of the prosecutrix used to work with the mother of the accused at at one point of time in a school at Pusha Delhi and that she has borrowed Rs. 5,000/ from her in the month of January, 2012 and that when she demanded the same, the mother of the prosecutrix had falsely got implicated in this case, through her daughter. This witness even could not tell the time or period of lending of such amount allegedly borrowed by the mother of the prosecutrix.
Thus, nothing has been brought on record in the form of ocular or documentary evidence to prove the contrary i.e. also of the same weight equal or more to that of the evidence produced by the prosecution to prove the offences of 'outraging the modesty of prosecutrix by the accused.
27. Further, as per the settled legal propositions of law, in the case titled as UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 16 Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
28. The above settled principles of law when applied to the facts of instant case, it is observed that the prosecution is successful to establish the facts/acts of the accused beyond reasonable doubts through the testimony of PW2 and thus, the prosecutrix was able to prove the activities of the accused which were well covered within the ambit of outraging the modesty of the prosecutrix, punishable u/s 354 IPC. Thus, from the abovenoted facts and circumstances and on the settled proposition of law, the court is of the considered view that the prosecution has failed to prove its case for the offences under section 376/511 & 377 IPC but proved its case for the offence punishable u/s 354 IPC against accused Sonu.
29. In view of the foregoing discussions & conclusions, the accused Sonu is held guilty for the offences U/s 354 IPC.
UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 1730. Accordingly, the accused Sonu is convicted for the offence U/s 354 IPC.
31. The copy of this judgment be also sent to the DCP concerned who is the incharge of investigation within his territory limits for perusal and for further directions and actions regarding the aspects of investigation in this case. ARCHANA Digitally signed by ARCHANA SINHA SINHA Date: 2018.05.02 15:24:59 +0530 Announced in the open Court (Dr. Archana Sinha) th on this 28 day of April 2018 Addl. Sessions Judge06,West Tis Hazari Courts, Delhi 28.04.2018 UID No. 57398/16 FIR No. 124/12 PS. Anand Parbat State Vs. Sonu Page No. 18