Delhi District Court
State vs . Yunush Khan on 24 August, 2016
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS JUDGE (SFTC), DWARKA COURTS, NEW DELHI. SC No. 440566/16 FIR No. 299/2015 U/s.376/328/342/506 IPC P.S. Dabri State Vs. Yunush Khan S/o Sh.Yusuf Khan R/o H.No.C1/148, Madhu Vihar, New Delhi. Date of Institution : 27.02.2016. Date of reserving judgment : 16.08.2016. Date of pronouncement : 24.08.2016. JUDGMENT : 1.
Accused was arrested by the Police of Police Station Dabri, New Delhi and was challaned to the court for trial for commission of the offences punishable under Sections 376/328/342 IPC.
2. The case of the prosecution, in brief, is that on 8.3.2015 at about 3.30 p.m DD No.31B was received by WSI Kamlesh. On receiving the said DD, WSI Kamlesh met ASI Babulal who produced the prosecutrix 'X' (real name withheld in order to conceal her identity) before her. Prosecutrix made a statement alleging therein that on 6.3.2015 at about 7.30 p.m she met a lady who was known to her. The said lady took her to a house at Dwarka Mor on the pretext of providing her the said house on rent. She left the prosecutrix in the SC No. 440566/16 (State vs. Yunush Khan) Page 1 of 10 house on the pretext of calling the landlord but did not return thereafter. It is alleged that when the prosecutrix went further inside the house, the accused came out of the bathroom and bolted the door. He also threatened her of dire consequences and made her drink Pepsi consuming which she felt giddiness. The accused forcibly committed rape upon her and, thereafter, left her at Raja Puri, Petrol Pump on 8.3.2015.
3. On the statement of the prosecutrix, FIR was registered and the matter was investigated by the police. During investigation, statement of the prosecutrix was got recorded u/s.164 Cr.P. Accused was arrested. The statements of the witnesses were recorded. The prosecutrix as well as accused were got medically examined. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court.
4. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions.
5. Vide order dated 18.3.2016, charge u/s 328/442/376/506 IPC against accused was framed to which he pleaded not guilty and claimed trial. He was accordingly put to trial.
6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined ten witnesses in all. PW1 is the prosecutrix who has narrated the incident. PW2 is lady Constable Sudesh who recorded the information regarding rape vide DD No.31B (Ex.PW2/A). PW3 is Doctor Ajay SC No. 440566/16 (State vs. Yunush Khan) Page 2 of 10 Sharma who has proved the MLC of the prosecutrix as Ex.PW3/A. PW4 is HC Virender who has proved the copy of the FIR as Ex.PW4/A and endorsement on rukka as Ex.PW4/B. PW5 is lady Constable Praveen Kumari in whose presence 13 sealed exhibits along with sample seal were seized vide memo Ex.PW5/A. PW6 Pawan Singh has proved the CDRs of the prosecutrix for the relevant period as Ex.PW6/E and Ex.PW6/F respectively. PW7 Ms. Manju Goel Kharab, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded u/s 164 Cr.PC as Ex.PW7/A. PW8 Constable Mukesh and PW10 HC Suresh Chander are formal witnesses. PW9 is the IO of the case.
7. Statement of accused was recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against him. Accused pleaded that he has been falsely implicated in this case by the police. As per accused, the prosecutrix is habitual in filing false cases against him. The present case was filed with ulterior motive to put pressure upon him to marry her. It is further stated that prosecutrix has already got registered six FIRs of rape, wrongful confinement, theft etc against him and he has been acquitted in two rape cases lodged by her. He did not lead evidence in his defence.
8. I have heard Ms. Satvinder Kaur, Ld. APP for the State and Sh. Gaurav Sehdev, Ld. Counsel for the accused. I have also perused the material on record.
9. Ld. Counsel for accused has contended that accused has already faced trial in two false rape cases lodged by the prosecutrix SC No. 440566/16 (State vs. Yunush Khan) Page 3 of 10 and after trial the accused has been acquitted in both the said cases by the Court. According to him, the present FIR is also false and fabricated as no such incident as mentioned in the FIR had taken place.
10. PW1 has deposed that in the year 2015 she along with her daughter was residing as a tenant in a house near Durga Mandir, Madhu Vihar, New Delhi. Her husband was residing separately from her due to temperamental differences. She has deposed that on 6.3.2015 at about 7.30 p.m one lady namely Baby told her that she can arrange a job as well as a rented accommodation for her. She accompanied her. Baby took her to a house near Petrol Pump Raja Puri. After opening the lock of the room, she asked her to wait for some time and left from there. She has further deposed that accused Yunush came out of the bathroom and took her forcibly in the adjacent room. He administered her Limca of black colour consuming which she became unconscious. Accused kept her for two days in the said house and committed rape upon her. He also threatened to kill her. She has further deposed that after two days i.e on 8.3.2015 accused dropped her near Petrol Pump Raja Puri. She has proved her complaint to the police as Ex.PW1/A; her statement u/s 164 Cr.PC as Ex.PW1/B and site plan as Ex.PW1/C.
11. During her crossexamination, PW1 has admitted that a number of cases have been filed by her against the accused in PS Dabri and Bindapur. She has further admitted that a case of sexual harassment against accused in PS Bindapur has also been lodged by SC No. 440566/16 (State vs. Yunush Khan) Page 4 of 10 her daughter. She has further admitted that she had resided with the accused for about one and a half month in a rented accommodation at Mohan Garden about three years ago. She has further admitted her photograph Mark A1 and A2 wherein she is shown sitting on a scooter as pillion rider with the accused. She has further admitted that in 2014 when the accused was lodged in Tihar Jail in FIR No.114/13 PS Dabri, she used to go to meet him in jail and also used to give him money and clothes at that time. She has further admitted that after committing rape accused himself dropped her near Raja Puri Petrol Pump on foot.
12. PW9 is the IO of this case who has deposed about the investigation carried out by her. During her crossexamination, she has deposed that on the third floor of the house where the alleged incident had taken place, one Ms. Amrit wife of Mr. Joseph was also residing with her family. As per IO, the said Amrit, her son and daughterin law did not support the version of the prosecutrix when they were interrogated by her.
13. It is the settled law that conviction in rape cases can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case the Court has reasons not to accept the version of the prosecutrix on its face value, it may look for corroboration.
14. The essential ingredient of Section 328 IPC is that the victim should be administered poison or any stupefying intoxicating or unwholesome drug or other thing. The forensic examination of the SC No. 440566/16 (State vs. Yunush Khan) Page 5 of 10 stomach wash in order to determine that the substance that administered was poison is, therefore, imperative for ascertaining the commission of the offence punishable u/s 328 IPC. Admittedly, no stomach wash of the prosecutrix was taken for forensic examination in the present case. The averment made by the prosecutrix that she felt giddiness after drinking Pepsi cannot be said to be final to reach to the conclusion that the Pepsi administered was either poison or any stupefying intoxicating or unwholesome drug. Though not referred to or relied upon for taking this view I am supported with the judgment Sanjay Singh v. State, Crl. Appeal No.636/2005 decided on 23.4.2008 by the High Court of Delhi speaking through Hon'ble Mr. Justice S. Murlidhar. As there is no medical evidence on record that the substance administered was either poison or stupefying intoxicating or unwholesome drug, offence u/s 328 IPC stands not proved against the accused.
15. The testimony of the prosecutrix does not inspire confidence for the following reasons :
(a) In the FIR it is stated that the accused came out of the bathroom and committed rape upon the prosecutrix.
However, in her statement u/s 164 Cr.PC it is mentioned that when the door was opened by the lady, the accused was found inside the room. Thus, there is no mention that accused came out from the bathroom in her statement u/s 164 Cr.PC.
(b) PW1 has admitted that FIR No. 114/13 and FIR SC No. 440566/16 (State vs. Yunush Khan) Page 6 of 10 No.434/14, both of PS Dabri u/s 376 IPC were got lodged on her complaints and in both the aforesaid cases, the accused has been acquitted.
(c) It is not believable that after committing the rape the accused would himself drop the prosecutrix on foot near Raja Puri Petrol Pump.
(d) Prosecutrix did not make any call at 100 number from the Raja Puri Petrol Pump though she appears to be well aware of the procedure of lodging complaints with the police as several cases in past were lodged by her against the accused.
(d) Prosecutrix did not raise any alarm or sought help at the Petrol Pump where she was dropped by the accused;
(e) As per IO, Ms. Amrit, her son and daughterinlaw who were residing on the third floor where the alleged incident had taken place did not support the version of the prosecutrix when they were interrogated.
(f) The daughter of the prosecutrix has also filed a rape case against the accused;
(g) FSL report Ex.PA is not in favour of the prosecution as neither semen nor biological material could be detected on the exhibits.
16. Though not referred to or relied upon, in judgment Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr., 2006 (10) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be SC No. 440566/16 (State vs. Yunush Khan) Page 7 of 10 convicted on the sole testimony of the prosecutrix if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony when the entire case is improbable and unlikely to have happened. This is what has been stated:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
17. Though not referred to or relied upon, in judgment Rai Sandeep @ Deepu v. State of NCT of Delhi, (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. It held: "In our considered opinion, 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 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 SC No. 440566/16 (State vs. Yunush Khan) Page 8 of 10 prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and 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. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can 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."
18. Though not referred to or relied upon, in judgment Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Supreme Court held : "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."
19. The testimony of the prosecutrix and the associated SC No. 440566/16 (State vs. Yunush Khan) Page 9 of 10 circumstances leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. As the prosecution case would show, her testimony does not inspire confidence and the circumstantial evidence do not lend any support to the same. In the absence of both, this Court is of the view that accused is liable to be acquitted.
20. Considering the facts and circumstances of this case, I am of the opinion that the prosecution has failed to prove its case against the accused. Hence, the accused is acquitted. His personal bond is cancelled and surety is discharged. Documents, if any, be released to the surety/Counsel. In terms of Section 437(A) Cr.P.C., accused is directed to furnish personal bond in the sum of Rs.25,000/ with one surety in the like amount for a period of six months for his appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Announced in open (PRAVEEN KUMAR) Court today i.e. on 24.8.2016. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
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