Delhi District Court
State vs . Virender 1/25 on 11 April, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 317/2017
State V Virender s/o Sh. Shri Bhagwan, R/o.
Shelter Home, Fountain Chowk,
Chandni Chowk, Delhi.
Permanent Address: Village Radughri,
DistrictAgra, U.P.
FIR No. 01/2017
U/s 376/366/506 IPC
Police Station Old Delhi Railway Station
Assigned to Sessions 18.04.2017
Charges framed on 16.05.2017
Arguments heard on 06.04.2019
Judgment pronounced on 11.04.2019
Decision Acquitted.
JUDGMENT:
1. That, the case of the prosecution is that, the Station House Officer of Police Station Old Delhi Railway Station had filed a chargesheet before the court of Ld. Metropolitan Magistrate vide FIR No.01/2017 dated 01.01.2017 u/s. 376/366/506 IPC for the prosecution of accused Virender in the court of ld. Metropolitan Magistrate and after compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Hon'ble Supreme Case No.317/2017 State Vs. Virender 1/25 Court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name and identity of prosecutrix is not being disclosed in the judgment.
BRIEF FACTS OF THE CASE:
2. That, the case was registered on 01.01.2017 on the statement of prosecutrix recorded in the night on dtd. 31.12.2016 alleging therein that she used to work as cook in the house of one Sneha and today, she was going to her native house at Rai Bareli, UP, after taking five days leave from her employer lady. She had taken TSR at 3:30 p.m. from Vasant Kunj and reached at Old Delhi Railway Station and at about 4:30 p.m. she bought the ticket from the ticket counter for Rail Bareli and reached at platform No.9 and was waiting for train, then on the same platform an old man (accused herein) having Black and white hairs, wearing black pant, blue colour shoes and blue and white colour sweater and having blackish complexion came near to her and asked her where she wanted to go and she told him that she had to go to Rai Bareli then he told her that he too wanted to go to Rai Bareli and he would help her to board the train. Thereafter, accused took her bag of luggage and told her that he would make her sit in train. Then, he took her to a train stationed in dark in the Old Delhi Railway Station yard and there he pulled her up in train, threatened her and then he forcibly raped her. She shouted for help and told accused that he was like her father despite that accused committed rape and threw her bag and she could identify him if he comes before her. On the basis of this statement of prosecutrix, rukka was prepared by Inspector Indu Rani and case was registered. During investigation, prosecutrix was medically examined in Aruna Asaf Ali Hospital. Her internal examination was also done by the Doctor and the safe kit of sexual assault was prepared, cloths including the inner cloth of Case No.317/2017 State Vs. Virender 2/25 prosecutrix were taken by the Doctor and sealed with the seal of hospital in pulandas and all the exhibits were seized by the IO in the case.
3. That, the prosecutrix also pointed out the place at the platform where accused met her and she also pointed out the place in old Delhi Railway Station yard where the train was stationed in which accused committed rape with her. Prosecutrix also handed over her journey ticket to IO which was seized in the case. On dtd. 02.01.2017, prosecutrix was also produced by the IO in the court of Ld. MM and her statement u/s 164 Cr.P.C. was recorded wherein prosecutrix again explained the facts and circumstances, how accused came in contact with her and then raped her.
4. That, during course of investigation on the basis of the secret information, on 10.01.2017, IO with prosecutrix and Constable Sunil found accused Virender near Fawara Chowk, near the Ganja Tea Stall and accused was interrogated by the IO and then arrested in the case. Accused was also medically examined in Aruna Asaf Ali hospital and the Doctor took his blood sample in gauze and sealed the same with the seal of hospital and gave the IO who seized the same in the case.
5. That, during course of investigation the exhibits of this case were also sent to FSL Rohini on dtd. 13.01.2017 and thereafter, charge sheet against the accused was filed in the court. During trial of this case, the FSL result dated 28.03.2018 was collected by the IO and filed in the court on 27.04.2018.
CHARGE:
6. That, during the course of investigation and on the basis of material available on record as well as the evidence, collected by the I.O., Ld. Predecessor of this Case No.317/2017 State Vs. Virender 3/25 court vide order dated 16.05.2017 framed charges against accused Virender for the offence punishable u/s. 366/376/323/506 IPC to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
7. That, in order to prove its case, prosecution has examined 11 witnesses namely PW1 Prosecutrix 'S', PW2 HC Chhote Lal, PW3 W/Ct. Manju, PW4 Ct. Chiranji Lal, PW5 Ct. Suneel Kumar, PW6 Dr. Krushit Patel, PW7 Dr. Saroj, PW8 ASI Pawan Kumar, PW9 Dr. Kartik, PW10 Ms. Manika, MM and PW11 W/Insp. Indu Rani.
PWs Name of the Nature of the Documents proved
Witness witness
PW1 Prosecutrix 'S' Complainant She has proved her complaint vide
Ex.PW1/A and her MLC vide
Ex.PW1/B. She had also handed
over the rail ticket which she had
bought for going to Raibarreily to
the police and police seized the
same vide Ex.PW1C. The said rail
ticket is Ex.PW1/D.
She has also proved her statement
u/s 164 Cr.P.C. vide Ex.PW1/E.
She has proved arrest memo of
accused vide Ex.PW1/F and his
personal search memo vide
Ex.PW1/G.
She has correctly identified her
clothes i.e. one shirt, one jacket,
one lagging and one pair of socks
vide Ex.1 (colly) and her one
brassier and one panty vide Ex.P2
Case No.317/2017
State Vs. Virender 4/25
(colly).
PW2 HC Chhote Lal Police witness He has proved recording of FIR
(duty officer) vide Ex.PW2/A.
PW3 W/Ct. Manju Police witness She has taken the prosecutrix to
Aruna Asaf Ali Hospital and got
her medical examination
conducted. The doctor who had
conducted medical examination of
prosecutrix had also handed over
the exhibits pertaining to her along
with sample seal to the said
inspector who seized the same
vide seizure memo vide
Ex.PW3/A.
She deposed that I.O. had also
taken the prosecutrix to the CCTV
Room and shown the footage of
relevant date to identify the
accused but accused was not
visible in the footage.
PW4 Ct. Chiranji Lal Police witness He had taken the custody of
parcels containing exhibits/case
property pertaining to this case in
sealed condition along with sample
seal from MHC(M), carried them
to FSL Rohini vide Road
Certificate and deposited the same
at FSL Rohini. He has proved
copy of the Road Certificate vide
Mark A and copy of the
acknowledgement with regard to
receipt of the said exhibits vide
Mark B.
PW5 Ct. Suneel Police witness He deposed that he has joined the
Kumar investigation of this case along
with the I.O. and prosecutrix. He
has apprehended the accused. In
Case No.317/2017
State Vs. Virender 5/25
his presence, I.O. interrogated and
arrested him vide arrest memo
Ex.PW1/F. He has proved personal
search memo of accused vide
Ex.PW1/G and his disclosure
statement vide Ex.PW5/A.
He further deposed that pursuant
to his disclosure statement,
accused led them to the place of
incident i.e. the Railway Yard at
ODRS, near platform nos. 15 & 16
and I.O. prepared pointing out
memo Ex.PW5/B.
He has also taken accused to
Aruna Asaf Ali Hospital and got
his medical examination
conducted vide MLC MarkC.
The examining doctor of the
accused had also taken his blood
sample in gauge, preserved, sealed
and handed over to him along with
seal which he handed over to the
I.O. who seized the same vide
seizure memo Ex.PW5/C.
PW6 Dr. Krushit Medical He has conducted medical
Patel witness examination of accused vide MLC
Mark A Ex.PW6/A.
He further deposed that on
30.12.2016 he has conducted
medical examination of
prosecutrix vide MLC Ex.PW1/B.
PW7 Dr. Saroj Medical She has proved endorsement at
witness point B to B on the MLC of
prosecutrix Ex.PW2/B on behalf
of Dr. Minal Soni.
PW8 ASI Pawan Police witness He has proved copy of register
Kumar no.19 containing relevant entries
Case No.317/2017
State Vs. Virender 6/25
running into two pages vide
Ex.PW8/A.
He has proved copy of entries of
register no.21 i.e. road certificate
bearing No. 03/21/17 dated
13.01.2017 and copy of
acknowledgement handed over to
him by Ct. Chiranjeet already
marked as Mark A and Mark B
respectively. He has proved the
same vide Ex.PW8/B and
Ex.PW8/C. He has also proved
road certificate vide Ex.PW8/B.
PW9 Dr. Kartik Medical He has conducted medical
witness examination of accused qua his
potency test vide endorsement at
point B to B bearing his signature
at point C on MLC Ex.PW6/A.
He gave his opinion at point D to
D on the said MLC and at point E
to E at the back of the said MLC to
the effect that on medical
examination nothing was found to
suggest that accused incapable to
perform sexual assault but it
cannot be said whether he had
performed or not.
PW10 Ms. Manika Ld. MM She had recorded statement of
prosecutrix u/s 164 Cr.P.C. vide
Ex.PW1/E.
PW11 W/Insp. Indu Police witness This witness has deposed about the
Rani (Investigating details of steps taken by her during
Officer) investigation and proved various
documents.
Case No.317/2017
State Vs. Virender 7/25
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
8. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and his statement u/s 313 Cr.P.C. was recorded. Accused denied all the incriminating evidence against him. Accused claimed that he is innocent and prosecutrix had been known to him for six months and during this period they had met four times and physical relationship were established between him and prosecutrix with her consent. He further deposed that he has been implicated in this case as prosecutrix had been demanding Rs.40,000/ within two hours from him for which he was not ready, therefore, he was implicated in this case. Accused has not preferred to lead defence evidence.
ARGUMENTS:
9. Ld. counsel for the accused has argued and submitted that I.O. has deposed in the court when accused was arrested prosecutrix was with her whereas prosecutrix said accused was arrested and found in police station where she identified the accused.
10. Ld. counsel for accused further argued that it is a case of consent, therefore, mobile details not taken by I.O. intentionally and deliberately.
11. Ld. counsel for accused further argued that as per I.O., CCTV installed at Railway station were not working.
12. Ld. counsel for accused further argued that if prosecutrix was restricted the accused why no injury marks on the person of prosecutrix. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
Case No.317/2017 State Vs. Virender 8/2513. Per Contra, Ld. Addl. PP for the State has argued that prosecutrix has supported the case of prosecution on all material aspects of the case. She has identified the accused being the person who committed rape with her.
14. Ld. Addl. PP for the State further argued that the overall testimony of prosecutrix, PW5 Ct. Sunil and PW11 I.O. clubbed with the scientific evidence on record in form of FSL report it is successfully established that accused had committed rape with the prosecutrix.
15. Ld. Addl. PP for the State further argued that accused had also admitted that prosecutrix was a willing party with him to have sexual activities but he could not explained the reason why the prosecutrix has implicated him in the case. As such, defence taken by the accused is vague and the testimony of prosecutrix remain trustworthy and inspired confidence and prosecution has proved its case against the accused beyond reasonable doubt and as such, accused may kindly be convicted.
PERUSAL OF RECORD:
16. On perusal of record, it is revealed that on the complaint of prosecutrix Ex.PW1/A, present FIR Ex.PW2/A was registered against the accused.
17. It is further revealed that I.O. had got medical examination of prosecutrix conducted vide MLC Ex.PW1/B. She had also given the brief account of incident to the doctor who had conducted her medical examination, doctor who had conducted her medical examination had also collected her inner and outer clothes and same were seized by I.O. vide seizure memo Ex.PW3/A. Case No.317/2017 State Vs. Virender 9/25
18. It is further revealed that prosecutrix identified her wearing clothes i.e. one Shirt, one jacket, one lagging and one pair of socks, one brassier and one panty which she had given to the doctor who had conducted her medical examination vide Ex.P1 (colly) and Ex.P2 (colly).
19. It is further revealed that PW8 ASI Pawan Kumar has proved the relevant entries of register no.19 Ex.PW8/A pertaining to this case and copy of the road certificate Ex.PW8/B through which exhibits were sent to FSL, Rohini and were deposited there against the acknowledgement Ex.PW8/B.
20. It is further revealed that I.O. along with prosecutrix reached at the platform, prosecutrix pointed out the place, which was railway yard where she was raped in a compartment of train, prosecutrix could not point out the exact compartment of the train. I.O. prepared site plans Ex.PW11/B and Ex.PW11/B1 on the pointing out of prosecutrix.
21. It is further revealed that statement of prosecutrix u/s 164 Cr.P.C. was recorded by ld. Magistrate vide Ex.PW1/E. Prosecutrix was counseled in the police station vide MarkXX1.
22. It is further revealed that accused was arrested in the case vide arrest memo vide Ex.PW1/F, his personal search was conducted vide personal search memo vide Ex.PW1/G and his disclosure statement Ex.PW5/A was also recorded. In pursuance of his disclosure statement, accused led them to the spot of incident i.e. Railway Yard in the railway station, pointing out memo Ex.PW5/B was prepared in this regard.
Case No.317/2017 State Vs. Virender 10/2523. It is further revealed that accused was medically examined in Aruna Asaf Ali Hospital vide MLC Ex.PW6/A. Accused was also examined by PW9 Dr. Kartik vide his endorsement at point B to B on the MLC Ex.PW6/A for his potency test.
24. It is further revealed that I.O. has deposited blood sample of accused in the Malkhana and thereafter, on 13.01.2017 exhibits of this case were sent to FSL Rohini through PW4 Ct. Chiranji Lal who had obtained acknowledgement vide Ex.PW8/C.
25. It is further revealed that I.O. had filed FSL report Ex.PW11/D vide her application Ex.PW11/C.
26. Before reaching at any conclusion, let the relevant sections i.e. 366/376/323/506 IPC be reproduced, which are as under: Section 323 IPC:
Punishment for voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 366 IPC. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid).
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever, Case No.317/2017 State Vs. Virender 11/25
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Case No.317/2017 State Vs. Virender 12/25Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS OF THIS COURT:
27. Having heard the arguments advanced by ld. counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the witnesses, this court is of the considered view that present case was registered on the statement of prosecutrix Ex.PW1/A wherein prosecutrix alleged that she used to work as cook in the house of one Sneha and today, she was going to her native house at Rai Bareli, UP, after taking five days leave from her employer lady. She had taken TSR at 3:30 p.m. from Vasant Kunj and reached at Old Delhi Railway Station and at about 4:30 p.m. she bought the ticket from the ticket counter for Rai Bareli and reached at platform No.9 and was waiting for train for Rai Bareli, then on the same platform, an old man (accused herein) having Black and white hairs, wearing black pant, blue colour shoes and blue and white colour sweater and having blackish complexion came near to her and asked her as to where she wanted to go and she told him that she had to go to Rai Bareli then he told her that he too wanted to go to Rai Bareli and he would help her to board the train.
Case No.317/2017 State Vs. Virender 13/2528. Thereafter, accused took her bag of luggage and told her that he would make her sit in the train. Then, he took her to a train stationed in dark in the Old Delhi Railway Station Yard and there he pulled her up in train, threatened her and then he forcibly raped her. She shouted for help and told accused that he was like her father despite that accused committed rape and threw her bag and she could identify him if he comes before her.
29. That, the court is very much conscious of the fact that evidence of the prosecutrix is required to be appreciated in a realistic human assessment. It is an established law that evidence of the prosecutrix did not require any corroboration and her testimony can be relied upon if it is cogent and is of sterling quality. It has also been laid down by Hon'ble Apex Court of India in various judgments that evidence of the prosecutrix can be sole basis of conviction, provided testimony of the prosecutrix is worth of credence, believable and trustworthy.
30. That, when the prosecutrix appeared in the witness box she has improved her statement to the statement made to the police as well as make before the Ld. MM for recording her statement u/s 164 Cr.P.C. and she has deposed in her examination in chief that the date of the incident is not remember to her however, it was winter season but in the complaint she has mentioned the date of incident as 31.12.2016 and she further deposed that when she was waiting at platform No.9, and was sitting on the said platform, accused came to her "aur mere pichhe pad gaya". Accused asked her where she wanted to go and she told the accused that she is going to Rai Bareli then accused told her that he too wanted to go to Rai Bareli and would help her in board the train. Accused lifted her baggage and started going towards platform and when she asked him Case No.317/2017 State Vs. Virender 14/25 to return his baggage then accused told her "tum mere saath aa jayo main batiha dunga train mai". Firstly, accused took the prosecutrix to a tea stall and served her tea. From there accused took her to a deserted place like jungle, little away from railway station where an empty train was stationed. He pulled the prosecutrix in the train and started giving her beating and slapping stating that "mere saath galat kaam karogi toh nahi marunga". Accused also abused her.
31. It has also been further deposed by the prosecutrix in her examination in chief that accused took her to bathroom of that train and committed sexual intercourse with her forcibly and also did oral sex with her. She resisted the said act of the accused but the accused kept on giving beating to her. Accused left her there and went away. Then she took her baggage from the train and while she was in the train, saw a person roaming around the train, since she was weeping, that person asked her reason for the same then she told to him that "mujhe station par jana hai". That person took her to railway station and dropped her there and police personal met her either platform No.8 or 9 of Old Delhi Railway Station, she narrated the incident to him and she was asked to go to police station and made her complaint. Thereafter, she went to police station and lodged the complaint and she was medically examined and she also handed over the ticket to the I.O. and here statement u/s 164 Cr.P.C. was recorded.
32. That, during the examination in chief, the prosecutrix has deposed that after registration of the FIR, she led the police officials to the place of incident and they also took her to the place where CCTV cameras were installed and PW11 Inspector Indu Rani who is the I.O. of this case has deposed in her examination in chief that she checked the CCTV footage of the spot and nearby area but no footage could be found as there was no camera installed at the railway yard and Case No.317/2017 State Vs. Virender 15/25 the way from where prosecutrix had gone inside the railway station. The testimony of the PW11 I.O. is also unreliable on the ground that on the one hand she had deposed that CCTV cameras of the railway station was not working and on the other hand she admitted in cross examination that she had not collected any certificate from concerned authority regarding non functioning of CCTV cameras and if there was no CCTV camera installed then why the I.O of this case has not obtained the certificate from concerned authority regarding non functioning of CCTV cameras. It is worth mentioning that PW3 Ct. Manju who has joined the investigation of this case FIR has deposed that she along with the prosecutrix as well as the I.O. had gone to the yard and platform of Old Delhi Railway Station and I.O. had also taken the prosecutrix to the CCTV room and shown the footage of relevant dates to identify the accused but accused was not visible in the footage and therefore, there is material contradictions of the deposition made by the prosecutrix, I.O. of this case as well as PW3 Ct. Manju who had joined the investigation in respect of the CCTV footage.
33. That, in the examination in chief the prosecutrix has deposed that the accused firstly took her to a tea stall and served her tea and from there accused took her to a deserted place like jungle, little away from railway station where an empty train was stationed and was raped by the accused in one of the compartment of that train and in the cross examination she had admitted that accused himself had taken her from there to a tea stall and she had consumed tea together and it took five minutes for drinking tea. She has also admitted in her cross examination, while accused was forcibly taking her bag she raised alarm. No one came forward to help her. When no one came forward to help her she thought that it would better to have a cup of tea with accused and the place Case No.317/2017 State Vs. Virender 16/25 where she had taken tea with accused was outside railway station and she had gone outside railway station by crossing the railway track and after taking tea she returned back with the accused to the same place i.e. place of incident and her luggage was with the accused from platform No.9 till there returning back to spot of incident. The testimony of the prosecutrix is highly improbable and unreliable and inspire no confidence on the ground that if the accused had taken her bag forcibly and she raised the alarm and no one come forward for her help and even thereafter, she thought that it would be better to have a cup of tea with accused and she consumed tea with the accused on a tea stall which is out of the railway station and the prosecutrix did not raise any alarm on the tea stall where she consumed tea with the accused.
34. It is pertinent to mention that the railway station is a public place where 300 to 400 or 500 people remain present round the clock inside the railway station and outside the railway station and the police officials particularly the GRPF officials also remain present round the clock inside the railway station and outside th railway station and if the bag of the prosecutrix was taken by the accused forcibly and the prosecutrix raise alarm and no person has come forward to help her and even thereafter, the prosecutrix went with the accused at a tea stall which is outside the Old Delhi Railway Station and it took five minutes to consume the tea by the prosecutrix and even then she did not raise any alarm nor brought to the notice of nearby persons who were present on the tea stall nor to the person who is the owner of the tea stall nor to the any police official.
35. It is also highly improbable and unbelievable, if a unknown person has taken the bag of the prosecutrix forcibly and she is taking tea with that person out of Case No.317/2017 State Vs. Virender 17/25 the railway station and even after taking tea with the accused, she returned back with the said accused to the same place i.e. the place of incident. Therefore, it appears that the prosecutrix was consented to accompany to the accused to the place of the incident.
36. The prosecutrix has also admitted in her cross examination that she had revealed her mobile phone number to the I.O. and also given mobile phone number of the accused to the I.O. The testimony of the prosecutrix is unbelievable on this point inasmuch as it has no where been mentioned either in the statement made by the prosecutrix to the police upon which the FIR was registered nor in the statement u/s 164 Cr.P.C. that she had given her mobile number as well as mobile number of the accused to the I.O. and if the prosecutrix was having mobile phone number of the accused then the prosecution has not been able to satisfy this court as to how the prosecutrix came to know about the mobile phone number of the accused. For the sake of arguments, if this court presume that the prosecutrix had given her mobile phone number as well as the mobile phone number of the accused then the I.O. must have obtained the CDR of the mobile phone number of the prosecutrix as well as the mobile phone number of the accused. It is worth mentioning to mention that the I.O. of this case who is PW11 herein has admitted in her cross examination that prosecutrix had not provided her any mobile phone number of the accused during the course of the investigation. Therefore, the testimony of the prosecutrix as well as of the I.O. is highly unreliable and inspire no confidence at all to prove the case of the prosecution against the accused.
37. That, during the cross examination of prosecutrix, she had admitted that she had been using smart mobile phone and she had also deposed that the mobile Case No.317/2017 State Vs. Virender 18/25 phone number was not remember to her and it is also unbelievable to the extend that if a person is having the smart mobile phone and is not aware about the mobile phone number of which she is using.
38. That, in her cross examination, the prosecutrix has also admitted that she had not reached railway station on call of the accused as she was not familiar about the accused at that time and if the prosecutrix is using smart mobile phone and also aware about the mobile phone number of the accused which she has deposed that she had given the mobile phone number of the accused to the I.O. and had it been the CDR of the mobile phone number of the prosecutrix as well as the mobile phone number of the accused obtained by the I.O. then it would be easy for the prosecution to prove their case and it appears that the I.O. of this case intentionally and deliberately had not obtained the CDR of the mobile phone number of prosecutrix as well as the mobile phone number of the accused.
39. The prosecutrix has admitted in her cross examination that she had given correct mobile phone number of accused to the I.O. and I.O. had called the accused on his mobile phone and I.O. informed the prosecutrix on telephone that accused had been arrested after one week of the incident whereas in further cross examination the prosecutrix has also admitted that the police had shown the accused to the prosecutrix at the time of his arrest in the police station and also admitted that when the prosecutrix reached in the police station accused was already present in the police station and the police did not obtain her signature on the arrest memo of the accused. It is worth mentioning that the PW5 Ct. Sunil Kumar has deposed that on 10.01.2017, he joined the investigation of this case along with the I.O. and the prosecutrix and pursuant Case No.317/2017 State Vs. Virender 19/25 to a secret information, PW5 Ct. Sunil Kumar, with I.O. and prosecutrix went to Fawara Chowk, Chandni Chowk, Delhi where secret informer pointed out the accused who was sitting at a tea stall and accused was also identified by the prosecutrix and accused was apprehended. The prosecutrix has deposed that I.O. informed her on telephone that accused has been arrested and PW5 Ct. Sunil has deposed that he along with I.O. and the prosecutrix apprehended the accused at Fawara Chowk in pursuant to a secret information. Therefore, there is material contradictions in respect of the manner in which the accused was arrested and it goes against the prosecution.
40. That, there are also the allegations against the accused that accused had given beatings to the prosecutrix and in the cross examination, the prosecutrix has deposed that accused had first beaten her and then removed her clothes and after one hour of the incident she made the complaint to the police and her statement was recorded and her medical examination was carried out by the doctor and the perusal of the MLC, it was opined that "no fresh external injury seen at the time of examination of the prosecutrix." It has also been opined by the doctor "no fresh injury mark seen". Moreover, the I.O. of this case has also admitted in her cross examination that "It is correct that I had not noticed any visible injury on the person of the prosecutrix when she had come at police station". Therefore, there is no evidence in respect of the beatings alleged to have been given by the accused to the prosecutrix at the time of the alleged incident of rape.
41. That, a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully and the Hon'ble Apex Court of India in case Abbas Case No.317/2017 State Vs. Virender 20/25 Ahmad Chaudhary Vs. State of Assam (2010), 12 SCC 115, it has been held by Their Lordship that:
"Though the statement of the prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to proved its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully, in the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been throughly demolished."
42. In another case Raju Vs. State of Madhya Pradesh, (2008), 15, SCC 133, the Hon'ble Supreme Court stated that the testimony of victim of rape has to be tested as if she is an injured witness but cannot be presumed to be a gospel truth.
"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."
43. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi (2012) 8 SCC 21, the Case No.317/2017 State Vs. Virender 21/25 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 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 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 strenuous it may be and under no circumstance should given room for any doubts 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 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can Case No.317/2017 State Vs. Virender 22/25 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 material for holding the offender guilty of the charge alleged."
44. In 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 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."
45. That, in this case FI|R, the testimony of the prosecutrix is not of much credence and inspire no confidence and because of material contradictions as well as the improvements in the statements of the prosecutrix, the testimony of the prosecutrix cannot be considered as full of truthfulness and the prosecution has not been able to prove its case against the accused beyond reasonable doubt.
46. It has been argued by the Ld. Addl. PP for the State that the DNA result is positive and it has been proved that the accused had committed sexual intercourse with the prosecutrix as alleged by the prosecutrix on the night of dtd. 31.12.2016 and the same has also been proved by scientific evidence also. The argument of ld. Addl. PP for the State is not of much worth on the ground that there is evidence that the accused had made physical relation with the prosecutrix but as stated in the afore stated reasoning given by this court there Case No.317/2017 State Vs. Virender 23/25 is no evidence that the sexual intercourse was done by the accused with the prosecutrix without her consent and will and therefore, this court is of the considered view that the prosecutrix as well as the accused were known to each other prior to the incident as deposed by the prosecutrix that she had given the mobile phone number of the accused to the I.O. and perusal of the evidence as well as the cross examination of the prosecutrix and the reasons as explained in the above stated paras, there was sufficient time with the prosecutrix to raise alarm or to made a complaint to the Old Delhi Railway Station authority or to the police official who were present inside and outside the Old Delhi Railway Station and she was having smart mobile phone as admitted by her in her cross examination and she could have make the 100 number call when she came with the accused to take tea on the tea stall which was out of the railway station and when she went back to the place of the incident with the accused but she did not make any 100 number call nor raise any alarm nor stated about the incident to the railway officials as well as police officials who were present on the railway station and therefore, the sexual intercourse alleged to have been made by the accused with the prosecutrix was not of without her consent but it was consensual.
47. Therefore, this court is of the considered view that prosecution has been failed to prove their case against the accused beyond reasonable doubt. Therefore, accused is hereby acquitted from the charges u/s 366/376/323/506 IPC.
48. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
Case No.317/2017 State Vs. Virender 24/2549. As prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victim/complainant.
50. Every page of this judgment is signed by me.
51. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 11.04.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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