Delhi District Court
(Judgment) State vs Shiv Mohan on 21 March, 2018
(Judgment) State Vs Shiv Mohan
PS Mangolpuri
FIR no. 746/15
IN THE COURT OF SHRI SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)
NORTHWEST: ROHINI: DELHI
Registration/ID No. : 52535/16
FIR No : 746/15
Police Station : Mangolpuri
Under Section : 376/506 IPC
State Vs. : Shiv Mohan S/o Sh. Shiv Narayan
R/o H. no. 355, IBlock,
Mangolpuri, Delhi.
Date of committal : 06.06.2015
Charge framed on : 31.08.2015
Arguments advanced on : 09.03.2018
Judgment Pronounced on : 21.03.2018
Decision : Acquitted
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. Anubhav Dubey, Counsel for the accused.
J U D G M E N T
1.Accused Shiv Mohan S/o Sh. Shiv Narayan is facing prosecution in the present case for the offences u/s 376/506 IPC.
2. Factual matrix of the matter devoid of unnecessary details is that on 10.04.2015 complainant SmtR (name withheld) lodged her complaint stating therein that she is residing at the given address with her family and she has four children and she is uneducated. Complainant states that her husband Page no............ 1 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 is a street hawker and she works in a footwear factory near her house. Complainant states that on 01.04.2015 at about 7.45 am she received a call from factory owner (accused Shiv Mohan) who told her to she come in the factory as other workers have also come and asked her to come early. Complainant states that when she reached in the factory she did not find other workers in factory except accused Shiv Mohan. She says that she started doing her work and after sometime accused Shiv Mohan came from behind her and held her and gagged her mouth by one of his hand and made her lie on the roof and thereafter allegedly committed rape upon her .
3. Prosecutrix further states that in her complaint that accused thereafter alleged to have given threats that if she will disclose about the incident to her husband or other workers of the factory, he will kill her family members and her husband. Prosecutrix says that because of such fear she did not disclose about the incident to anybody. However, yesterday 09.04.2015 when her husband repeatedly inquired as to why she is not taking meal, she stated to have cried and disclosed everything to him. Thereafter prosecutrix stated to have come alongwith her husband to Police Station where she lodged the complaint.
4. On the basis of above said complaint, present case was Page no............ 2 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 registered. During investigation, prosecutrix was taken to the hospital where she was medically examined. Sealed samples as given by the doctor were taken into police possession. Statement of prosecutrix u/s 164 CrPC was also got recorded. Accused was arrested during investigation and upon completion of investigation chargesheet was filed.
5. On the basis of material available on judicial record, Ld Predecessor of this court vide order dated 31.08.2015 framed the charge for the offence u/s 376/506 IPC against the accused to which he pleaded not guilty and claimed trial.
6. In order to substantiate the charge against the accused, prosecution has examined 10 witnesses . The details of which can be given in tabulated form as follows: PWs Name of the Nature Documents proved Witness of the witness PW1 HC Balbir Singh Police He proved the FIR Ex. PW1/A, witness endorsement on rukka Ex. PW1/B and Certificate u/s 65 B Indian Evidence Act Ex. PW1/C. PW2 ProsecutrixR Public She has supported the case and deposed witness about the incidence. She proved her complaint Ex. PW2/A, Statement u/s 164 CrPC Ex. PW2/B, arrest memo of accused Ex. PW2/C. PW3 Dr. Vipin Dabas Doctor He has proved the MLC of accused Ex.
PW3/A. PW4 A (husband of Public He has deposed regarding information prosecutrix) witness given by his wife about the incidence and then he went alongwith his wife for lodging the complaint.
Page no............ 3 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 PW5 Shakuntala Public This witness is one of the labourer, witness working in the factory of the accused in which prosecutrix was working. This witness deposes that she came to know about the present case, when police visited the factory.
PW6 Suresh Kumar Public He is owner of the premises where accused witness has been running his factory on first floor of the building. Witness deposes that in his presence, son of accused has handed over to police attendance register of the factory to polices which was seized by the police vide seizure memo Ex. PW6/A. He has duly identified the attendance register Ex. P1.
PW7 Ct. Savita Police She deposed that prosecutrixR came to witness her and told about the commission of rape with her and she produced prosecutrix before SHO and on the directions of SHO victim was produced before IO SI Sangeeta. She alongwith IO took prosecutrix for her medical examination and after her medical examination doctor handed over to her sealed parcels which she taken into police possession vide Ex.PW7/A. SI Sangeeta handed over to her one tehrir for getting the case registered and she went to PS Mangolpuri and got the case registered.
PW8 Ct. Vijay Ram Police This witness deposes regarding taking of witness tehrir to the IO after registration of FIR and also regarding arrest of the accused on identification of the prosecutrix. This witness was also present at that time when accused was taken for medical examination as well as on 21.04.2015 when MHC(M) handed over to him sealed exhibits and this witness went to the FSL and deposited those exhibits.
PW9 W/Ct Seema Police DD writer. On 10.04.2015 recorded the
witness DD entry 38B Ex.PW9/A.
PW10 W/SI Sangeeta Police IO of the case. During investigation she
witness. has taken into police possession sealed
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(Judgment) State Vs Shiv Mohan
PS Mangolpuri
FIR no. 746/15
exhibits handed over by the doctor after medical examination of prosecutrix vide Ex. PW7/A. She prepared rukka Ex.
PW10/A, site plan Ex. PW10/B. She also proved the documents I.e arrest memo of accused Ex. PW2/A, personal search of accused Ex. PW8/A, disclosure statement Ex.PW8/B, seizure memo sealed exhibits of accused Ex. PW8/C and seizure of attendance registered Ex. PW6/A.
7. Upon completion of prosecutrix evidence, all the incriminating evidence as come on judicial record was put to the accused in statement u/s 313 CrPC wherein accused while denying the entire evidence and has taken the plea that he has been falsely implicated in this case. While not disputing that prosecutrix was employed in his factory and was working there since three months prior to date of incident. Accused says that prosecutrix used to instigate other labourers about salary and overtime charges and she also united with other women labourers. However, she did not attend the work of the factory for 3/4 days. One day prosecutrix came alongwith other labourers of the factory and raised quarrel with him. Wife of accused was also there and they instructed prosecutrix to leave the work and go away. Prosecutrix went to police station and lodged the false case.
8. In defence accused has examined as many as two witnesses. DW1 is Ravi Kumar who substantially did not say anything to Page no............ 5 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 establish the defence of the accused. DW1 simply stated that he is working in the factory of accused Shiv Mohan but he was on leave on 01.04.2015 and therefore he does not know anything about the case. DW2 is Smt. Neelam who is wife of the accused. This witness has testifies that his husband is into the business of manufacturing footwear/chapel and during summer season in order to meet demand she also used to sit in the factory from the month March onwards. DW2 says that after her child goes to the school she comes to the factory and goes back to her home when her child comes back from the school.
9. DW2 says that complainant/prosecutrix was working in the factory of her husband, she was having some dispute with her husband regarding salary. She says that on 2/3 occasions she did not intervene the matter, however, one day when dispute became serious, she scolded the prosecutrix and asked her as to why she is instigating other employees in the factory . DW2 says that she told the prosecutrix that if she is not willing to work in the factory she can leave her job or can continue working peacefully. Witness further says that thereafter prosecutrix left the factory and kept on coming to the factory for her job. DW2 says that she do not have knowledge of any other fact.
10. I have heard Addl. PP for the State and Sh. Anubhav Page no............ 6 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 Dubey counsel for the accused.
Statement of prosecutrix u/s 164 CrPC
11. Before I discuss the evidence as come on the record, in order to appreciate the circumstance it is appropriate to reproduce herein the statement of prosecutrix recorded u/s 164 CrPC : "On 01.04.2015 accused Shiv Mohan had committed rape upon me. Shiv Mohan had called me for duty at 8am. When I went , I did not find anybody else , only Shiv Mohan was there . He told me to work . When I sat down he was sitting on the machine . He on the pretext of washing his hands stood up and forcibly held me, thereafter he made me lying on the roof and committed rape upon me. He told me not to tell to anybody otherwise he will get my husband killed and I may also loose my children. He went and told to his wife. Thereafter his wife also started threatening me . She told me repeatedly to come on the job otherwise he will commit suicide by hanging and she will send me behind jail. Out of fear I went for the job in that factory. Now they have started giving me more threats , then I informed to my husband and came to police station. I want that he should be punished in such a way that he may not see anybody else. "
Discussion of Evidence.
12. Prosecutrix has appeared in the witness box as PW2. She deposed that one day accused had called her on telephone to reach to his factory at 8am and further told her that all other labourers/employees have also come in the factory and she should come as soon as possible. Prosecutrix says that when she reached in the factory of accused, no one Page no............ 7 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 was present. Accused was found in the factory. Accused told her that one lady is putting paste for fixing the sole of chapels upstairs and was doing her job, therefore she started doing her work. PW2 further testifies that accused came from her side after washing his hands and pressed her mouth and made her lie on the floor and forcibly committed rape upon her. Prosecutrix further says that accused threatened her not to disclose about incidence to anyone at her home or in the factory, otherwise he will kill her husband and children. Prosecutrix says that she told to the accused now she will not come for work in his factory.
13. Prosecutrix says that accused told his wife that she (prosecutrix) has refused for coming to the work in factory, upon which accused told his wife that he would commit suicide if she (prosecutrix) will not join the work. PW2 further testifies that wife of the accused told her on telephone that she would go to the Police station and lodge the complaint against her. Prosecutrix further says that she thereafter joined the factory of the accused on receiving the threating telephonic calls from the wife of accused. Prosecutrix says that she was working under great pressure as she was scared that accused may repeat the offence. After about 10 days prosecutrix stated to have informed about the incident to daughterinlaw of her landlord. In the evening of Page no............ 8 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 the same day prosecutrix stated to have been informed about the incident to her husband. She says that she alongwith her husband went to Police Station and get the complaint Ex.PW2/A recorded. Prosecutrix further referred to her statement recorded u/s 164 CrPC Ex.PW2/B. Prosecutrix also testifies regarding arrest of accused in her presence vide arrest memo Ex.PW2/C.
14. Having considered the evidence of the prosecutrix as discussed above the first aspect to be noted here is that according to the prosecutrix the incident had taken place on 01.04.2015. However, she lodged the complaint only on 10.04.2015. Although prosecutrix in her evidence had not specifically mentioned the date of incident but the fact remains that there is delay of about 10 days in lodging the complaint. Generally, in case of sexual assault the delay in registration of FIR in itself may not much bearing. However, at the same time in order to rule out any concoction or false implication, there is a legal necessity for prosecution to explain the delay in registration of FIR. In this case there is no plausible explanation given by the prosecutrix regarding delay of registration of FIR.
15. If we go through examinationinchief of prosecutrix. Prosecutrix says that accused made a telephonic call to her and asked her to come to factory as other employees have Page no............ 9 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 already come to the factory. According to the prosecutrix when she reached in the factory. She did not find anybody in the factory and thereafter accused allegedly committed rape upon her. First of all the manner of alleged commission of offence, as deposed by prosecutrix, is most unbelievable. According to prosecutrix, accused pressed her mouth and made her lie on floor and thereafter forcibly committed rape upon her. Such version of prosecutrix regarding the incidence is improbable because that factory is at first floor of the house. If a grown woman like prosecutrix was made to lie on floor by accused for committing offence of rape, she could have resisted the act and raised the alarm for help . Evidence of prosecutrix is silent on this aspects and appears to be improbable. Besides that At that stage prosecutrix states that accused threatened her not to disclose about the incidence, otherwise he will kill her husband and children. Now if we take such evidence of the prosecutrix on the face of it, question arises as to why immediately after the incident prosecutrix did not complaint or raised an alarm against the accused. It has come in the evidence that factory of the accused is situated at the first floor of the building. Accused had taken the floor on rent. It is also not disputed fact that landlord is residing on the ground floor on the same building. It is however very unnatural conduct of the prosecutrix that Page no............ 10 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 she did not complain about the incident to anyone including her husband immediately on the day of incident. In this regard it is important to refer the crossexamination of prosecutrix that she testifies that on the day of incident I.e 01.04.2015 she remained in the factory till 9.30pm with half an hour lunch break, when she had gone to her house. If prosecutrix continued working in the factory on the day of incident till 9.30pm and did not complain about the incident to anyone, this certainly create a doubt about her conduct. Evidence of prosecutrix regarding giving of threats also did not inspire much confidence because it is not the case of the prosecutrix that accused was having any weapon. Only on alleged oral threats of the accused , as per evidence of prosecutrix she did not report the matter to anyone till 10 days of the alleged date of incidence. This to my mind certainly created doubt about the credibility of her version.
16. If we peruse the evidence of prosecutrix in totality, prosecutrix says in her examinationinchief that prosecutrix told to accused after incidence that now she will not come for work in his factory. Later accused told his wife that prosecutrix has refused to work and accused told his wife that he would commit suicide if prosecutrix will not join the work. Then wife of accused told prosecutrix on telephone that she would go to police station and lodged complaint against her.
Page no............ 11 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 in her crossexamination recorded on 06.11.2015 prosecutrix for the first time testifies that she has disclosed about the incidence to Neelam (wife of accused) when she had inquired about it. Prosecutrix further says that she was already knowing about the incidence as told by the accused. Such evidence of prosecutrix is most unbelievable. It is not believable that accused after the incident would ask his wife to compel prosecutrix to come to the factory and wife of the accused will also make a call to the prosecutrix despite having knowledge about the incident. It is important to note here that reference of wife of the accused had never come in the statement recorded before the police or even in the statement u/s 164 CrPC. Prosecutrix for the first time stated that wife of the accused also started calling her immediately after the incident for coming to the factory. Such aspect of prosecutrix version does not inspire confidence. In this context it be also noted that incidence according to the prosecution story had taken place on 01.04.2015 and complaint was lodged on 10.04.2015 and prosecutrix continued working in the factory of accused till the date of filing of the complaint.
17. In this factual context , it is important to refer here the evidence of PW4 (husband of prosecutrix) who testifies that on 09.04.2015 when he returned from his work to his home, Page no............ 12 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 his wife (prosecutrix) informed him about the incident of rape committed by accused upon her. PW4 says that his wife was not eating food and he inquired for the reasons and she told him that wife of the accused was threatening to kill her husband and children in case she will not continue working in their factory. PW4 further testifies that his wife (prosecutrix) also told him that wife of the accused had threatened her not to disclose about the incidence to any one. PW4 says that thereafter on 10.04.2015 he alongwith his wife went to PS and got the case registered.
18. The version as given by the PW4 regarding threats given by the wife of the accused were apparently contradictory to the evidence of prosecutrix. I have here already noted about it does not appears to be probable that after the alleged incidence of rape, accused would tell his wife about the incidence and then wife of the accused would give threats to the prosecutrix for coming to the factory. Such evidence of the prosecutrix and her husband PW4 not only improbable but is most unbelievable. Another important aspect of evidence of prosecutrix is that she testifies in his examination inchief that after about 10 days of incidence, she disclosed the incidence to daughterinlaw of her landlord and prosecutrix also informed about the incidence to her husband. But surprisingly that daughterinlaw of landlord of Page no............ 13 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 prosecutrix , was not joined in investigation and not made witness.
19. In above discussed factual context it is important to note that while there is no dispute that evidence of prosecutrix does not require any corroboration. Her testimony can be sole basis for conviction of accused. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact, the evidence of the prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. But one must not forget that prosecution must prove the charge against accused beyond doubts. Such burden of proof is no way less in rape cases. In Ramdas and Others v. State of Maharashtra, (2007) 2 SCC 170, Apex Court held that the conviction in case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. The Apex Court in Radhu v. State of M.P., (2007) 12 SCC 57, observed as under:
". ...The Courts should, at the same time, bear in Page no............ 14 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
20. I may refer the following observations in Raju v. State of M.P., (2008) 15 SCC 133:
"It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
21. It is appropriate to refer here following observations of Hon'able Supreme Court in Sudhansu Sekhar Sahoo v. State of Orissa, (2002) 10 SCC 743:
"It is true that the evidence of the prosecutrix in a rape case is to be given due weight. Sexual violence is a dehumanising act and it is an unlawful encroachment into the right to privacy and sanctity of a woman. The Courts also should be strict and vigilant to protect the society from such evils. It is in the interest of the society that serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides. In Page no............ 15 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 a criminal case, the Court has to consider the triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public. The purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property."
22. In Tameezuddin v. State (NCT of Delhi), (2009) 15 SCC 566, Hon'able Supreme Court made observation as under:
"9. 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. We are of the opinion that the story is indeed improbable.
23. So one may mention that there is no bar in law to convict the accused on the basis of the sole testimony of the prosecutrix, however, the same is only permissible if the testimony is of sterling quality inspiring confidence. I have already noted above those circumstances which cast suspicion around the prosecutrix's version. Incidence is alleged to be of 01.04.2015, but prosecutrix did not report the matter to police, rather continued working in factory of accused, moreover prosecutrix testifies that even wife of accused was aware about the incidence, still wife of accused pressurised the prosecutrix to continue working in factory. This fact Page no............ 16 (Judgment) State Vs Shiv Mohan PS Mangolpuri FIR no. 746/15 certainly cause big doubt as her version. Evidence of husband of prosecutrix is also different than that of prosecutrix.
24. For the reasons as discussed above, in the facts of the present case, I find that evidence of prosecutrix is not of such good sterling quality to be relied upon to connect the accused, evidence of prosecutrix is inherently improbable and unbelievable. Therefore accused to my mind is certainly entitled for benefit of doubt.
25. File be consigned to Record Room on compliance of section 437A Cr.P.C.
Announced in the open Court on 21.03 .2018 (SHAILENDER MALIK) ASJ(SPECIAL FAST TRACK COURT) NORTHWEST, ROHINI COURTS, DELHI.
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