Delhi District Court
State vs . Kuldeep Kumar on 7 August, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 05/09)
Unique ID case No. 02404R0026432008
State Vs. Kuldeep Kumar
FIR No. : 38/08
U/s : 365/328/376 IPC
P.S. : Swaroop Nagar
State Vs. Kuldeep Kumar
S/o Sh. Prem Singh
R/o EG160, Gali No.4,
Main Pusta Road,
Swami Sradhanand Colony,
Delhi.
Date of institution of case 12.08.2008
Date on which, judgment has been reserved03.08.2012
Date of pronouncement of judgment 07.08.2012
JUDGMENT:
1 The case of the prosecution as briefly stated in the charge sheet is that on S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 1/ 20 2 21.02.2008 Nawab Singh, father of prosecutrix, came to PS Swaroop Nagar and got his complaint recorded with the Duty Officer. In the said complaint, he stated that his daughter was doing B.A. through Correspondence from Hans Raj College and that on 17.02.2008 at about 8:30 AM she has gone to college but had not returned back. He gave description of his daughter as well as clothes she was wearing on that day. He further stated that he had tried to search for his daughter of his own and had come to know that one Kuldeep s/o Vidya Sagar, residing in their neighbourhood, had disappeared from his house since the day daughter of complainant had been missing and that he suspected that said Kuldeep had secretly confined his daughter somewhere forcibly and that Sushil, brother of accused, Devgan, Jija of accused and Prem, mother of accused, were also involved in the incident. He prayed that action be taken against the said Kuldeep and his family members.
2 On the basis of this complaint, a case FIR No.38/08 u/s. 365/328/376 IPC was registered and investigations were commenced. Efforts were made to search for the missing girl by flashing All India Message and pasting pamphlets with the photographs of prosecutrix at prominent places yet there was no clue. On 03.03.2008 prosecutrix appeared in the Court, during hearing of anticipatory bail application of accused. IO recorded statement of prosecutrix u/s.161 CrPC with the permission of the Court and also got recorded her statement u/s.164 CrPC. In her said statement u/s.164 CrPC, prosecutrix alleged that accused Kuldeep had given her a telephone call on 17.08.2008 and told her to meet her at Rajghat and that she left her home at about 8:00 AM for her correspondence class but went to Rajghat by bus where accused Kuldeep was already present. From Rajghat they both came to Kingsway Camp and had tea and S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 2/ 20 3 snacks. After having tea, prosecutrix lost her senses and had no bearing of her whereabouts. She regained her consciousness on 18.02.2008 at about 2:30 AM and found herself in a Sarai at Nizamuddin consisting of 70 / 80 rooms. She did not object to her presence in the room as she was always under influence of sleep and that on 25.02.2008 she married Kuldeep at Arya Samaj Mandir and started living with him as husband and wife in the abovesaid room. The prosecutrix stated that she had not married Kuldeep out of her will in a fully conscious state and that accused used to mix some substance in her food which made her feel sleepy and thus, prosecutrix did whatever accused Kuldeep asked her. She also stated that she felt that accused Kuldeep had a sexual intercourse with her 4 5 times against her consent. She prayed that action be taken against accused for whatever wrong he had done with her. She added that one Bhaskar, uncle (Chacha) of accused, who resided in neighbourhood of her parents house, had threatened her about 2 years ago that he would get her abducted.
3 On the basis of the statement made by prosecutrix u/s.164 CrPC, Sections 328 and 376 IPC were added. Prosecutrix was medically examined. The accused was granted anticipatory bail by the concerned Court, however, he joined investigations with the IO and during the course of said investigations, accused was also got medically examined. After completing investigations, charge sheet was prepared and filed in the Court.
4 Upon committal of this case to the court of Sessions, charges for the offence under Sections 365/328/376 IPC were framed against the accused Kuldeep Kumar.
S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 3/ 20 4 However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
5 In order to prove its case, prosecution has examined 15 witnesses, out of which PW2, PW6 and IO are material witnesses. Remaining witnesses are formal witnesses being the doctors, who examined prosecutrix and accused, learned Magistrate, who recorded statement of prosecutrix u/s.164 CrPC, and other link witnesses and Police witnesses, having played role in the investigations or having joined investigations with the IO.
6 The PW2, prosecutrix, deposed that on 17.02.2008 at about 8:00 AM she had left her house to attend classes at Hans Raj College and had met accused, whom she knew since last about four years, on the way. She stated that she did not know what happened thereafter. This witness was declared hostile by learned Additional PP and during her crossexamination, thereafter she termed it correct that she had made a statement Mark PW2/A to the Police wherein she had stated that on that day she and Kuldeep had decided over telephone to meet at Raj Ghat Bus Stop at about 9:00 AM and to proceed to Vaishno Devi by bus thereafter and that on 24.02.2008 they returned back to Delhi and met Bablu, friend of Kuldeep at Nizamuddin and that they started residing at the house of Bablu, where they came to know that father of prosecutrix had lodged a case at PS Swaroop Nagar and that after coming to know of the said case, prosecutrix wanted to return back to her house but accused and his brother took her forcibly to Arya Samaj Mandir, Yamuna Vihar, where she was compelled to marry accused Kuldeep. Prosecutrix denied having S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 4/ 20 5 stated in Mark PW2/A that after marriage she and Kuldeep started residing at Nizamuddin like husband and wife. PW2 was put her statement Mark PW2/A and admitted having stated therein that she was a major and hence, capable of taking her own decision and that accused had not done anything forcibly with her and that whatever had happened with the consent of PW2 and that on 03.03.2008 she had come to the Court with accused Kuldeep where her statement was recorded by learned ASJ and that she had also stated that she realized her mistake and wanted to stay with her parents and that she had not been kept in confinement or forcibly by anyone. The prosecutrix also admitted having been taken to BJRM Hospital on 03.03.2008 for her medical examination and being produced before learned MM for her statement u/s.164 CrPC. She proved her endorsement on MLC as Ex.PW2/B and her statement u/s.164 CrPC as Ex.PW2/C. The prosecutrix further termed it correct that she had stated in her statement u/s.164 CrPC that as far as she could recollect the accused had committed sexual intercourse with her 4 - 5 times without her consent and against her will.
7 The prosecutrix was crossexamined at length by learned counsel for accused. During her crossexamination by learned defence counsel, prosecutrix stated that she had stated in her statement u/s.164 CrPC before learned MM that she had married accused Kuldeep with her own free will and that she had not stated so before learned ASJ at the time of hearing of bail application of accused Kuldeep as she had not been asked about it. It is, however, brought out at the time of hearing of bail application of accused Kuldeep before learned ASJ, parents of prosecutrix were also present. During her further crossexamination, prosecutrix was put her statement u/s.161 S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 5/ 20 6 CrPC, Mark PW2/A and after being put the said statement, the prosecutrix stated that whatever was recorded in Mark PW2/A was correct. She also deposed that after recording of said statement, she was allowed to accompany her parents and remained in their company at the time of her medical examination as well as at the time of recording of her statement u/s.164 CrPC by learned MM and that during this period she was not allowed to meet accused Kuldeep by her parents. Prosecutrix denied that she had deposed against accused before learned MM in her statement u/s.164 CrPC under constant pressure and tutoring of her parents.
8 From the further crossexamination of prosecutrix, it is brought out that she was having friendly relations with the accused prior to the incident and usually met him at Raj Ghat and that her parents were not aware of said friendly relations though parents of accused were aware of it. The prosecutrix was put photographs Mark X1 to Mark X5 i.e. the marriage photographs. She termed it correct that in photographs Mark X1 and Mark X2, she was seen along with accused and Panditji and that in Mark X3 and Mark X4 she was seen with accused and two other friends and in Mark X5 she was seen with accused Kuldeep, Panditji and one of the friend's. Prosecutrix admitted that she had not made any complaint to Pandiji at the time of marriage and that she had handed over her bridal dress to the brother and brotherinlaw of accused Kuldeep and that at the time of marriage with accused Kuldeep, 7 8 persons were present. Prosecutrix could not remember having written any letter to Police officers seeking protection for herself and her husband after her marriage with the accused. She also failed to remember if she had signed or affixed her thumb impression on the marriage certificate. Prosecutrix denied having S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 6/ 20 7 married accused voluntarily at Arya Samaj Mandir without the consent and knowledge of her parents. During her further crossexamination, prosecutrix admitted having gone to Mata Vaishno Devi Shrine, with the accused, on 17.02.2008, without informing her family members or relatives and having stayed there for 3 - 4 days. 9 Further crossexamination of prosecutrix bring out that the place in Nizamuddin where she had stayed with accused after marriage was a thickly populated area and that they were staying in a room at third floor of the house and the said room had attached toilet and bathroom and that there were 3 to 4 floor in the said building with 25 to 30 rooms on each floor. There were also common staircase for entrance to third floor. Prosecutrix admitted that she did not raise alarm during her stay in the said room on the third floor. She, however, denied that she had stayed with accused at Nizamuddin as his wife having married him of her free will and accord. Prosecutrix was also put photocopies of pages of diary (19 pages) - Mark "Y" (colly) and admitted the same to be photocopies of her diary with her handwriting thereupon. Prosecutrix denied that she had stated wrong facts in her statement u/s.164 CrPC before learned MM under the pressure and influence of her parents or that accused had never committed any sexual intercourse with her forcibly or against her consent.
10 PW6 Nawab Singh is the father of the prosecutrix. He deposed about factum of missing of prosecutrix on 17.02.2008 and his having lodged case FIR Ex.PW4/A at PS Swaroop Nagar on 21.02.2008. He further deposed about his having expressed suspicion upon accused Kuldeep Kumar, residing in a house adjacent to his S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 7/ 20 8 house, and accused having gone amiss from his house from 17.02.2008 when daughter of PW6 had gone missing. The PW6 also deposed about receiving information on 02.03.2008 from PS Swaroop Nagar that his daughter would appear before Court concerned on 03.03.2008 and subsequent events that followed appearance of prosecutrix in the Court on 03.03.2008.
11 PW13 is the IO of the case. He deposed about the investigations carried out by him and documents prepared by him during the course of investigations of the present case which was marked to him after registration of case FIR Ex.PW4/A. He also deposed that on 03.03.2008 accused Kuldeep moved an anticipatory bail application in the Court wherein prosecutrix appeared at the time of hearing of the bail matter and that upon directions of the Court, he prepared Ex.PW6/A i.e. the recovery memo of prosecutrix, recorded her statement u/s.161 CrPC and on the same day, produced the prosecutrix before learned MM for recording of her statement u/s.164 CrPC by moving application Ex.PW13/A, copy of which was obtained by him by moving application Ex.PW13/B. He also deposed about the medical examination of prosecutrix and taking of her biological samples which were handed over to Lady Ct. Nisha by the concerned doctor vide Ex.PW3/A. The PW13 then deposed about formal arrest of accused, who was on anticipatory bail, on 18.03.2008 vide arrest memo Ex.PW7/A and release of accused on execution of bail bond and personal bond Ex.PW13/C. He further deposed about factum of accused being medically examined vide MLC Ex.PW1/A and seizure of the samples taken from accused vide memo Ex.PW8/A. The PW13 then deposed about having sent samples / exhibits in this case to FSL on 10.07.2008 through Ct. Sriniwas vide RC No.15/21/2008.
S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 8/ 20
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12 During his crossexamination, PW13 stated that he had been told by father
of prosecutrix that she had lastly left her house for the school but had not been told address of the said school. Regarding the suspicion expressed by father of prosecutrix on accused, PW13 stated that father of prosecutrix had told him that he had seen prosecutrix and accused meeting secretly earlier on 2 - 3 occasions. PW13 admitted that he had not recorded the statement of Pandit, who had got the marriage between accused and prosecutrix solemnized. He also stated that he had made inquiries from the persons who were seen present during the marriage, from the photographs of the marriage and that the said persons told him that prosecutrix had voluntarily married accused Kuldeep and that prosecutrix had also told him that after getting married with accused they had gone to Mata Vaishno Devi Shrine for blessings but she could not tell the exact particulars of hotels where they had stayed together during their said visit and that prosecutrix could also not give particulars of place where she was residing with accused after return from Mata Vaishno Devi Shrine. PW13 denied that he had not investigated the case fairly and had registered a false case against accused at the behest of father of prosecutrix inspite of the fact that prosecutrix had voluntarily married accused Kuldeep. 13 PW4 HC Mahender Singh deposed that on 21.02.2008, he was working as duty officer at PS Swaroop Nagar and on that day, complainant Nawab Singh came to the PS and got recorded his statement and on the basis of the said statement, he recorded the FIR No.38/08 u/s. 365/34 IPC of this case and proved the copy of the FIR as Ex. PW4/A. S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 9/ 20 10 14 PW3 W/Ct. Nisha had taken the prosecutrix for medical examination and deposed regarding the same.
15 PW 7 Ct. Lachi Ram was present at the time of arrest of accused by the IO and deposed regarding the same.
16 PW8 had taken the accused for medical examination on instructions of IO and deposed about having brought back his MLC, parcels and sample seals to PS to hand over the same to the IO.
17 PW10 Ct. Sriniwas had taken the exhibits in the case to FSL Rohini on instructions of IO while PW5 HC Naresh was posted as MHCM at PS Swaroop Nagar at the relevant time and they deposed regarding the same.
18 PW15 Dr. Neeraj Chaudhary identified handwriting and signatures of Dr. Kamal, who had examined the prosecutrix on 04.03.2008 and prepared her MLC Ex.PW15/A and referred her to gynae department for further examination after having made observations that no fresh external injuries were found on the person of the patient and deposed regarding it.
19 PW9 Dr. Meena identified handwriting and signatures of Dr. Pooja, who had conducted gynacological examination of the prosecutrix and proved the observations made by Dr. Pooja on MLC as Ex.PW9/A. S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 10/ 20 11 20 PW11 Dr. Sanjay Kumar identified handwriting and signatures of Dr. Nadeem, who had examined the accused vide MLC Ex.PW1/A on 02.07.2008 and referred him to SR (Surgery) for opinion regarding his sexual capability. The said opinion was given by Dr. Kamlesh, whose handwriting and signatures, on MLC Ex.PW1/A were proved by PW1 Dr. Shakuntala and PW11 Dr. Sanjay Kumar. 21 PW12 Sh. V.Shankarnarayanan proved the report of examination of biological samples in the case as Ex.PW12/A and the serological report as PW12/B. 22 PW14 Sh. Puran Chand, learned MM had recorded the statement of prosecutrix u/s.164 CrPC. He proved the said statement as Ex.PW2/C. The applications filed by IO were proved as 13/A and 13/B while the certificate given by PW14 was proved as 14/A. 23 After closing of prosecution evidence, statement of accused Kuldeep Kumar was recorded u/s 313 Cr.P.C. The accused stated that he is innocent and had been falsely implicated in the case after obtaining his signatures on blank papers by the police under threat. Accused further stated that the prosecutrix was having love affair with him and she insisted on getting married to him of her own free will and consent and thereafter they both left their respective houses and got married in Arya Samaj Mandir with the consent of prosecutrix and thereafter as per her advice, they went to Mata Vaishno Devi to get the blessing of goddess and thereafter they started living together. He further deposed that the Police officials were troubling his family members at the S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 11/ 20 12 instance of parents of prosecutrix and hence the prosecutrix voluntarily came to the Court in order to give statement in his favour but outside the concerned Court, she was overpowered by her parents in connivance with the IO and she was tutored and pressurized to speak against him. The accused declined to lead evidence in his defence.
24 I have heard the arguments put forward by Ld. Addl. PP for State and Ld. defence counsel for the accused Kuldeep Kumar and have carefully gone through the record of the case.
25 Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused beyond reasonable doubt and that prosecutrix has fully supported the case of the prosecution and has proved her statement u/s.164 CrPC wherein she has made clear allegations of being kidnapped by the accused and being administered with some intoxicant and / or some stupefying substance due to which she submitted herself to the directions given by the accused and was also raped by him. He thus contends that from the statement of prosecutrix as well as other material placed on record by it, the prosecution has succeeded in proving the guilt of accused beyond reasonable doubt and has accordingly prayed that accused Kuldeep Kumar be convicted u/s.365/328/376 IPC.
26 Learned counsel for the accused on the other hand has contended that prosecutrix is unreliable and untrustworthy witness as she has constantly changed her version. He has drawn attention to the crossexamination of prosecutrix wherein S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 12/ 20 13 prosecutrix has admitted her statement u/s.161 CrPC, given to the Police, to be correct and in the said statement she stated that she was a major and was capable to taking her own decision and that accused had not done anything forcibly with her and that she being a major had voluntarily eloped with accused, married him of her own free will and accord and later started her matrimonial life with him. It is contended that it is only when prosecutrix met her parents again, at the time of hearing of anticipatory bail application filed by the accused, that she came under family pressure and gave a false statements u/s.164 CrPC against the accused to please her family members. It is thus contended that based on the testimony of the prosecutrix itself, accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly. 27 Admittedly in the present case prosecutrix is above 18 years of age and is thus presumed to be capable of taking decisions regarding her life of her own free will. The entire prosecution case rests on the testimony of prosecutrix. The prosecutrix went missing from her house on 17.02.2008 at about 8:00 PM and was traced out on 03.03.2008 when she came to the Court at the time of hearing of anticipatory bail application filed by accused Kuldeep Kumar. Immediately upon her appearance in the Court, her statement u/s.161 CrPC was recorded by the IO, wherein she stated that : " I am studying in B.A. Second Year correspondence and knew accused Kuldeep Kumar, who is residing in my neighbourhood, since last about 10 years and had been having affair with him since last about four years.
I used to go to attend my classes at Hans Raj College on Sundays and on 17.02.2008 also I was to go for studies S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 13/ 20 14 the said college. I left my house at about 8:00 AM. I had already spoken to Kuldeep Kumar on phone and agreed to meet him on 9:00 AM at Bus Stop of Raj Ghat and that as per our program, we met at Raj Ghat and went to Mata Vaishno Devi Shrine on the same day. We returned back on 24.02.2008 and went to stay at Nizamuddin at the house of Babloo, friend of Kuldeep Kumar, where we came to know that my father had got registered a case at PS Swaroop Nagar against Kuldeep Kumar. On 25.02.2008 I and Kuldeep Kumar got married at Arya Samaj Mandir, Yamuna Vihar and started living as husband and wife at Nizamuddin. I am a major and understand what is proper for me.
Kuldeep has not done anything forcibly with me and whatever has happened, has happened with my consent.
On 03.03.2008, I appeared at Rohini Court for the hearing of bail application of Kuldeep and gave my statement to the IO on the directions of Court and now I have realized that I had committed a mistake and want to go back to my parents.
Nobody had confined me forcibly or done any wrong act with me."
28 Thereafter prosecutrix was taken for medical examination and was also produced before learned MM for her statement u/s.164 CrPC, wherein she deposed as under : S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 14/ 20 15 "I was residing at the above given address and is studied B.A. II year of Correspondence. I know one Kuldeep who is also residing in my neighbourer for last 10 years. I have no love affair with Kuldeep. He is a photographer by profession. On 17.02.2008 (Sunday) Kuldeep gave a telephonic call to me for having a meeting at Rajghat as on Sunday I used to attend the correspondence classes in Hans Raj College, accordingly, at about 8 AM I left from my house. I reached Rajghat by bus where Kuldeep was already there. From Rajghat we both came to Kingsway Camp where we had a tea and snacks. After taking tea I lost my senses. I do not know whether I was taken by Kuldeep or not but at about 2.30 PM on 18.2.08 when I regained my consciousness I found myself in Nijjamuddin in a building known as Sarai consisting of about 70/80 rooms. I do not object my presence in the said room as I was under influence of some sleep always. Since 17.2.08 till today I was residing in the said room with Kuldeep. Today I have come from Nizamuddin with one Akbar who is our friend to give my statement in the Court. As far as I remember the room in which we stayed was of one Bablu. One of my friend told that my father has registered a case in PS Swaroop Nagar.
On 25.2.08 I and Kuldeep got married in Arya Samaj Mandir and started living as husband and wife in the above said room. As I know I am major I understand what is wrong and right. I have not married with Kuldeep out of my free will as I was not in full conscious. Whenever I took food Kuldeep used to mix some substance in food and after that I always felt sleepy due to which I did not understand what is wrong and right. Whatever Kuldeep stated I started doing the same thing. As I was under the influence of sleep due to substance mixed in my food by Kuldeep I felt that he has intercoursed with me. By intercourse I mean physical relationship. As far as I remember Kuldeep has a sexual intercourse with me about 4/5 times and he has intercoursed without my consent.
Kuldeep has done wrong with me and he should be
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penalised for this act.
At this stage, prosecutrix states that one Bhasker - uncle (chacha) of Kuldeep who resides in my neighbourhood / parents house he gave a threat to me about two years back and he will get abduct me. I know whatever happened with me is wrong. I am giving my statement out of my free will and without any coercion from any corner."
29 The prosecutrix was examined as PW2 before the Court and her testimony has already been reproduced in forgoing paragraphs.
30 The above noted three statements given by the prosecutrix clearly bring out contradictory stand / version given by her. In her statement u/s.161 CrPC Mark PW2/A, she has completely exonerated accused of all the allegations whereas in her statement u/s.164 CrPC Ex.PW2/C, she has made allegations of kidnapping, administration of stupefying substance / drug and rape against the accused. In her deposition before the Court, prosecutrix has tried to justify both her statements i.e. her statement u/s.161 CrPC and that u/s.164 CrPC in as much as she clearly stated that whatever had been stated by her in the said statement Mark PW2/A was correct. She, however, denied that she had given her statement u/s.164 CrPC Ex.PW2/C, under pressure of her parents.
31 In the present case, the conduct of prosecutrix, which has been brought out from her statements and testimony, is very material. It stands established that prosecutrix was having friendly relations with the accused for quite some time prior to the day she went missing from her house and she used to meet him secretly without S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 16/ 20 17 knowledge of her family members. Even on the day she went missing from her house i.e. 17.02.2008, she had fixed a meeting with accused before hand and left her house on the pretext of going to college. She went to meet the accused at Rajghat and thereafter went with him to Mata Vaishno Devi Shrine from where she returned back on 24.02.2008. The prosecutrix does not state anything about going to Mata Vaishno Devi Shrine with the accused in her statement u/s.164 CrPC made to learned MM. However, during her crossexamination recorded before the Court, she has clearly admitted having gone to Mata Vaishno Devi Shrine with accused on 17.02.2008, without informing her family members and relatives, and having stayed there for 3 - 4 days. Admittedly, there was no threat, force or any other influence exerted upon prosecutrix by the accused at that time nor did she make any attempt to escape from the clutches of accused or seek any kind of help for the same and the only conclusion that can be drawn in these facts and circumstances is that prosecutrix had willingly and voluntarily accompanied accused to Mata Vaishno Devi Shrine.
32 The prosecutrix and accused returned back to Delhi on 24.02.2008 and upon their return, they came to know about criminal complaint filed by father of the prosecutrix against the accused. At this stage, prosecutrix has alleged in her statement u/s.164 CrPC that she was forced into marriage with the accused whereas in her statement u/s. 161 CrPC, she states that she had voluntarily married the accused. 33 On the one hand prosecutrix stated that she had been forced to marriage by accused Kuldeep Kumar and his brother and on the other she admitted that she had not made any complaint to the Pandit, who performed her marriage with the accused. The S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 17/ 20 18 photographs of marriage between prosecutrix and the accused have been placed on record and marked as Mark X1 to X5. In the said photographs the prosecutrix is seen going through various rituals and ceremonies of marriage with the accused happily. Further it is also brought out that after return from Mata Vaishno Devi Shrine, prosecutrix started residing with accused in a room at Nizamuddin. The said place admittedly was in a thickly populated area and there were several persons residing in the vicinity of the said room. The fact that prosecutrix made no effort to escape from the said place or to raise alarm or to share her alleged plight with anyone also gives rise to presumption that she was a willing party.
34 Though prosecutrix claims that she was under influence of some stupefying / intoxicating substance, but this fact has not been corroborated by any medical evidence. Moreover, if any such substance was being administered to prosecutrix then the place of its origin i.e. the shop from where the same was procured or purchased by the accused would have been revealed / discovered during the investigation by the IO. 35 It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a S.C No. 05/09 State vs. Kuldeep Kumar Page Nos. 18/ 20 19 victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. I am supported in my view by judgment in case titled as Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
36 It has also been held in the case of Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, as under : "It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
37 It has been further held in the case of Jai Krishna Mandal & Anr. Vs. State of Jharkhand, (2010) 14 SCC 534, as under : "The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
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38 In the present case evidence of prosecutrix is found suffering from serious
infirmities and inconsistencies and it is seen that prosecutrix is making deliberate improvements on material points with a view to rule out consent on her part and this coupled with absence of injuries on her person or side effects of the alleged intoxicant administered to her by the accused make it difficult to place reliance upon her evidence. I am supported in my view by the judgment in case Suresh N.Bhusare & Ors. Vs. State of Maharashtra, (1999) 1 SCC 220.
39 The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has failed to prove that accused had abducted prosecutrix on 17.02.2008 or had caused her to be secretly and wrongfully confined or that he had administered some stupefying and intoxicating substance to facilitate her abduction or that he had committed rape upon prosecutrix without her wishes and without her consent. Accordingly, I acquit accused Kuldeep Kumar of the charged offences, giving them the benefit of doubt for the offences u/s. 365/328/376 IPC.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 07.08.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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