Delhi District Court
In Case Shyam And Another vs State Of Maharashtra, Air on 18 April, 2018
1
IN THE COURT OF MR. BHUPESH KUMAR,
ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK
COURT)01, WEST, TIS HAZARI COURTS, DELHI
S.C No: 38/15
FIR No : 1540/14
PS: Uttam Nagar
U/section: 342/366/376/506 IPC
State
Versus
Ajay Kumar @ Ajju
S/o Mr. Baldev Raj,
Vill. & PO Mothan Wala Mohalla,
Kamalpur District, Kapurthala, Punjab.
Date of receipt of file after
committal : 25.03.2015
Date of judgment : 18.04.2018
JUDGMENT
1. Brief facts of the matter as emerged from the chargsheet are that on 24.12.2012 husband of Prosecutrix (name of Prosecutrix and her husband have been withheld in order to conceal their identity) made written complaint at PS Uttam Nagar wherein he has submitted to the effect that his wife / Prosecutrix is missing from his house since 19.12.2014 at 3 PM. He searched his wife at his own but he could not found her and then he lodged her missing report vide DD no. 37A dt.20.12.2014. But now he came to know that one boy SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 2 namely Ajay residing in front of his house is also missing and Ajay has taken his wife somewhere by enticing her. Inter alia, on the basis of complaint of husband of Prosecutrix, initially FIR bearing no. 1540 dt. 24.12.2014 was registered u/s 365 IPC at PS Uttam Nagar. Investigation of the case was carried out. During investigation on 27.12.2014 husband of Prosecutrix alongwith his father in law came to police station and informed the police that his wife alongwith Ajay were present at Jodhpur. The police went to Jodhpur and at the instance of secret informer recovered Prosecutrix from Thar Handloom showroom at Sardarpura Road, Jodhpur, Rajasthan. The statement of Prosecutrix was recorded u/s 161 Cr.P.C. wherein she has deposed to the effect that the accused Ajay reside with his Bua (father's sister) in front of their house and she knew accused Ajay being her neighborer. They have exchanged the mobile numbers and used to talk to each other on mobile. Accused has promised to get good job for her and for this purpose on 19.12.2014, he called Prosecutrix to old Delhi Railway Station. There she tried to contact her husband but accused did not allow her by threatening her. Hence, she could not tell anything to her husband. Then accused took her to Jodhpur on train. At Jodhpur she inquired from the accused that why he has brought her there to which he told her that he has arranged job for her at Thar Handloom. But she refused for the job and tried to contact SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 3 her family but again accused threatened her and under fear she did not disclose about the same to her family. Then accused took a room on rent and in the said room he established physical relations with her despite her resistance. She started working at Thar handloom on 25.12.2014 to 28.12.2014 till her father and husband came there. After recording the statement of Prosecutrix, she was medically examined and exhibits were taken into possession. Her statement u/s 164 Cr. P.C. was recorded. Accused Ajay @ Ajju was arrested. The blood sample of accused and exhibits which were taken during medical examination of Prosecutrix were sent to FSL Rohini. The investigation ultimately culminated into chargsheet and the same was filed before the Court of Ld. MM u/s 365/376/506 IPC against the accused Ajay @ Ajju.
After supplying the copies of chargsheet as per provisions of Section 207 of Cr.P.C., the case was committed to Sessions Court and it was assigned to my ld. predecessor court.
2. Vide order dated 27.3.2015 my Ld. predecessor court has found that prima facie charge u/s 342/366/376/506 IPC was made against the accused. The separate formal charge was framed accordingly to which accused pleaded not guilty and claimed trial.
SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 4
3. Before proceeding ahead here it is necessary to mention that on 13.07.2015, ld. Counsel for accused on behalf of accused has admitted evidence of Ld. MM who recorded the statement of prosecutrix under Section 164 Cr.P.C., evidence of Dr.Ramesh and Dr. Vimal who has medically examined the accused at DDU Hospital, evidence of Dr.Avnish and Dr. Prabhleen Kaur who had medically examined the prosecutrix vide MLC No.98/2014 in DDU Hospital; HC Hari Ram, duty officer who recorded the FIR, and also admitted documents prepared and signed by these witnesses.
4. The prosecution has otherwise examined twelve witnesses in support of this case.
5. PW1 is prosecutrix. She deposed to the effect that earlier she was residing alongwith her husband. Accused was living in front of her house with his paternal aunt (Bua). She was having visiting terms with Bua of accused. Whenever she talk about her job, the accused used to say that he could get her job as he was working as Graphic Designer. On 19.12.2014, accused talked to her on her mobile and called her to near Old Delhi Railway Station alongwith documents, on the ground that he had arranged job for her. At about 3.00 PM - 4.00 PM she reached old Delhi Railway Station alongwith SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 5 documents where accused met her. The accused asked her to have tea. She had tea with accused but after taking tea, she felt giddiness and lost her consciousness. When she regained her consciousness, she was in Jodhpur. She further deposed that she did not know how she was taken to Jodhpur. She asked the accuse to let her call her husband, but accused did not allow to make call and rather accused told her that since she has left the house, hence, nobody will accept in her house. The accused took her to a hotel in Jodhpur where she stayed with accused for one day. The accused raped her in the hotel room on that day. On next day, accused took her to rented accommodation. The accused stayed with her in rented accommodation and raped her every day. It was without her consent and wishes. They stayed there from 21.12.2014 to 28.12.2014. On 25.12.2014, accused took her to Thar Handloom at Jodhpur, where he got her job of cleaning glasses and window panes for Salary @ Rs.4500/ per month. She went at Thar Handloom till 28.12.2014. On 28.12.2014 her father and husband alongwith police came to Thar Handloom and she was taken back to Delhi. The accused was arrested by the police on her identification and she signed the arrest memo and personal search of accused as Ex.PW1/A and PW1/B respectively. Her statement U/s 164 Cr.P.C. was recorded by Ld. MM which is Ex. PW1/C. The witness was crossexamined at length by Ld. Counsel for SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 6 accused and the same shall be considered at the time of appreciation of evidence.
6. PW2 Sh. Ram Swaroop is Manager of Guest House at Sinla Haweli, Jodhpur. He deposed to the effect that on 20.12.2014 at 9.00 AM, Bijender and prosecutrix came to guest house and produced marksheet of Xth class and election I Card. On next day, they checked out from the guest house at 9.00 AM. He further deposed that the man who visited the guest house and disclosed his name to be Bijender. The witness identified the said Bijender as Ajay Kumar @ Ajju. During his cross examination, he submitted that prosecutrix was carrying a luggage bag. It is possible that luggage bag contained clothes. Prosecutrix did not appear to be under any kind of pressure.
7. PW3 is Ms.Sangeeta. She deposed to the effect that in the month of December, 2014, accused alongwith on girl came to her house for taking room on rent through one Suresh, shopkeeper in Jodhpur. The accused and that girl stayed in their house for about 34 days. The father of girl alongwith her husband reached there and took them back.
8. PW4 is HC Ram Pratap. He has deposed that on 27.12.2014, the investigation of the case was handed over to him as HC Ajeet, first IO was out of station. He further deposed to the SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 7 effect that he alongwith husband and father of prosecutrix went to Thar Handloom on 28.12.2014 from where the prosecutrix was recovered vide Ex. PW4/A. The accused was apprehended at pointing out of prosecutrix. Then both of them were brought to Delhi. He has further brought on record the statement of prosecutrix recorded u/s 164 Cr.P.C. as Ex.PW4/B, his application in this respect as Ex.PW1/C and site plans Ex.PW1/D and Ex.PW1/E. This witness was cross examined at length by Ld. Counsel for accused and the same shall be considered at the time of appreciation of evidence.
9. PW5 Ct Joginder is the witness who had taken the accused to DDU Hospital on 29.12.2014 for medical examination. The witness further deposed that after medical examination of accused, doctor handed over sealed pulenda and MLC of accused to him and he further handed over the same to HC Ram Pratap and the same was seized vide seizure memo Ex. PW5/A.
10. PW6 Ct. Subhash Chand has deposed that on 19.1.2015 on the instructions of IO, he obtained 11 sealed pulendas alongwith two sample seal for depositing the same at FSL, Rohini vide RC no.10/21/15. He further deposed that so long the case property remained in his possession no one tampered the same.
11. PW7 Mr.Anandi Lal Nagar is the Manager of Thar Handloom, Jodhpur. He deposed to the effect that on SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 8 28.12.2014 a lady came to Thar Handloom to work as helper and stated that she would produce her ID proof on the next day. On the next day, she was taken by the Delhi Police. A photograph Mark 2C was shown to this witness, who identified the same to be the prosecutrix. During his crossexamination he deposed that prosecutrix herself told him that she would produce her ID proof on the next day. He did not feel that she was under
any pressure.
12. PW8 Mr.Bijender is the huband of prosecutrix. He has deposed that he married with prosecutrix on 28.05.2005 and they have a son aged about 8 years. On 19.12.2014 he found that his wife was missing from his residence. He further deposed to the effect that he immediately called up at his native place where his mother and elder reside and also called to parents of his wife to enquire about her, but they told that she was not with them. On 20.12.2014 he alongwith his elder brother went to PS Uttam Nagar where he lodged the missing report of his wife vide DD no. 37A, Mark X. He alongwith his family searched his wife but she could not be located. On 24.12.2014 he made his complaint Ex.PW8/A in this respect. In his complaint he mentioned that accused Ajay Kumar @ Ajju who was living opposite his house was also missing from 19.12.2014 and his cousin Mr.Dheeraj Mehra had also lodged a missing report about him. In his SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 9 complaint he mentioned that accused had enticed and abducted his wife. Mr.Atul told him that accused had told him that his wife was with him and they were in Mumbai. The IO put the mobile phones of accused and his wife on surveillance and they were traced at Jodhpur. Then IO alongwith HC Ram Partap, Mr.Attar Singh, father of prosecutrix and he himself went to Jodhpur on 26.12.2014 or 27.12.2014, and went to Thar Handloom, Jodhpur from where his wife was recovered.
Thereafter, they went to a shop near the railway station where the accused was working and he was apprehended by police. This witness was cross examined at length, however the same would be considered at the time of appreciation of evidence.
13. PW9 is HC Ajit Singh. He has submitted that DD no.
37A was handed over to him for investigation. The WT message Ex. PW9/A, missing person from Ex. PW9/B were filled to trace out the prosecutrix, but she could not be traced. On 24.12.2014 complainant Bijender Kumar came to PS and lodged the report Ex. PW8/A and he made his endorsement as Ex.PW9/C. He tried to trace the prosecutrix and accused but they could not be found. He further deposed that he had gone Bihar and the file was handed over to HC Ram Partap for further investigation.
14. PW10 HC Vijay Kumar MHC(M). He deposed that on SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 10 29.12.2014, HC Ram Pratap had deposited ten sealed pullandas and one sample seal of CMO DDU hospital alongwith articles recovered from personal search of accused with the Malkhana vide register no.19 serial no.4690. The photocopy of the same was brought on record as Ex PW10/A. It is further deposed by him that on 30.12.14 WSI Usha deposited one sample pullanda alongwith one sample seal of CMO DDU Hospital in Malkhana vide entry no. 4698 Ex PW 10/B. It is further deposed by him that on 19.01.2015 11 sealed pullandas alongwith two sample seals were received by Ct.Subhash from Malkhana and deposited the same in the office of FSL vide RC no.10/21 and relevant documents were brought on record as Ex.PW10/C and Ex.PW10/D.
15. PW 11 is Ct. Nirmala Kulhari. She is the witness who took the prosecutrix to DDU Hospital for her medical examination on 29.12.2014. She has deposed that after medical examination, concerned doctor gave her exhibits and sample seal and she produced the same before the IO and IO had taken the same into her possession.
16. PW12 Insp. Usha Sharma is the IO of the matter. She deposed that on 29.12.2014, further investigation of the matter was handed over to her. She has deposed qua the investigation carried out by her and proved all the documents prepared by her during investigation. She was crossexamined at length. However, the same shall be considered at the time SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 11 of appreciation of evidence. PE was closed.
17. Statement of accused was recorded under Section 313 Cr.P.C. wherein he has denied all the incriminating evidence came on record against him and further submitted that he has been falsely implicated in this case. Accused further submitted that he does not want to lead evidence in his defence.
18. I have heard arguments of Sh.Subhash Chauhan, Ld. APP for state and Sh. Sushil Kumar, Ld. Counsel for accused besides going through the material on record carefully.
19. Ld. APP for State submitted that prosecution has examined prosecutrix as PW1. She has fully supported the case of prosecution and stated to the effect that accused has called her to Old Delhi Railway Station on the pretext to arrange job for her where she was administered Tea and after consuming it, she became unconscious and on the next day, she was found herself at Jodhpur, Rajasthan. There she was taken to a Hotel where the accused established forcible physical relations with her. She was then kept by accused in her rented room and was repeatedly raped by the accused. PW2 Ram Swaroop, Manager of the Guest House, where both of them have stayed for one night. PW3 is Ms. Sangeeta, Landlady of the room which the accused took on rent. Both of SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 12 them have corroborated the evidence of PW1. PW8 is husband of the prosecutrix, he has proved the complaint Ex.PW8/A given by him to the police of PS Uttam Nagar on the basis of which the FIR was registered. The evidence of all these witnesses is corroborating each other and with the evidence of prosecutrix. On the basis of these submissions, it is submitted that the prosecution has proved his case beyond reasonable doubts that on 19.12.2014, the accused with intention and in order that she may be forced or seduced to illicit intercourse and confined her at Jodhpur, Rajasthan and has committted rape upon her.
20. On the other hand, Ld. counsel for accused submitted that no reliance can be made on the evidence of the prosecutrix because the evidence of the prosecutrix suffers from material contradictions. It has been further submitted that there are material contradictions between the evidence of the prosecutrix recorded in the court as PW1 and her statements recorded under section 161 Cr.P.C and 164 Cr.P.C.
It is further argued that the relation between the prosecutrix and her husband was not cordial that is why husband of the prosecutrix had not made any complaint with the police when the prosecutrix had left her house. It has been submitted that the missing report in this matter was SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 13 made by Mr. Jitender, elder brother of the husband of the prosecutrix and not by her husband.
It is further submitted that the investigation of the case was not carried out property by IO because husband of prosecutrix is working in Delhi Police. It is submitted that in the evidence of PW8, it came on record that Dheeraj Mehra cousin of accused and Mr. Prashant and Mr. Atul, friends of accused were also suspected by him but, no investigation in this respect has been carried out.
It has been further submitted that the prosecutrix has accompanied the accused at her own and she was never kidnapped by the accused. It is further submitted that the physical relations between the accused and the prosecutrix were consensual. On the basis of these submissions, prayer has been made to acquit the accused by giving benefit of doubt.
21. Arguments heard. Material perused.
22. In this matter the accused was, inter alia, charged under section 366 IPC. In order to prove charges u/s 366 IPC, in this matter against the accused, prosecution was required to prove that the accused has abducted/kidnapped the prosecutrix in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 14 forced or seduced to illicit intercourse. As per Section 362 of IPC, in order to prove abduction, the prosecution is required to prove that the accused has enticed a person by forcible compulsion or deceitful mean to go away from any place. Reverting to the present matter, the court is required to find out if the accused has used any force or adopted any deceitful means in order to take the prosecutrix alongwith him.
On aspect of threat, the prosecutrix has deposed to the effect that when they reached at Jodhpur, the accused has told her that since she has left the house, nobody would accept her in her house. As per record, the prosecutrix was grown up lady aged about 26 years, married and having 8 years old son, meaning by the prosecutrix was enough mature to understand the consequences of remaining silent when she was expected to retaliate any action of the accused which she found was inappropriate.
Further, from careful scrutiny of evidence of PW1 and other material on record, it is found that accused has not shown or used any weapon or even threatened the prosecutrix to harm her physically.
By simply asking of the accused that since she has come to Jodhpur, and her family members would not accept her, question arises, if any, alarm or fear has caused in the mind of prosecutrix which compelled her to remain with the SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 15 accused. On this aspect it is found that prosecutrix has not explained further that what sort of fear came to her mind and under what circumstances she remained with accused at Jodhpur. This aspect would be further considered after the appreciation of remaining important evidence which the prosecution has brought on record.
The prosecutrix has claimed that when they reached Jodhpur, the accused did not allow him to contact her family as he has taken her mobile. If the version of prosecutrix in this respect is admitted to be correct, the prosecutrix must remained under threat or force, so long she remained at Jodhpur. But there is no material on record which suggest that prosecutrix was threatened by the accused in any manner. At Jodhpur, both of them lived one night at guest house and thereafter in rented accommodation. The conduct of prosecutrix while their stay at guest house came in the evidence of PW2 Mr.Ram Swaroop, Manager of guest house. During his cross examination, this witness has deposed that the prosecutrix was carrying large bag with her and it is possible that the luggage bag contains clothes. He further deposed that the prosecutrix did not appear to be under any kind of pressure. He further deposed to the effect that the prosecutrix appeared to be comfortable while living in the guest house.
PW3 Ms. Sangeeta, owner of the rented room where SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 16 prosecutrix and accused were stayed at Jodhpur. During cross examination, she has submitted that she noticed one large bag with prosecutrix and prosecutrix has told her that they were husband and wife. She never saw accused and prosecutrix fighting or arguing and both of them leave for job together.
From the careful scrutiny of evidence of PW2 Ram Swaroop, Manager of Guest House and PW3 Ms. Sangeeta, owner of rented room, one aspect came on record that prosecutrix was carrying big bag with her. The prosecution has not brought on record any evidence/material that why prosecutrix carried such bag with her. Now, the question arises that when she was called by the accused for job, she was required to take documents only and not large luggage bag with her. It casts doubt in the mind of the court that the prosecutrix might have already planned to leave her house. In case Shyam and Another vs State of Maharashtra, AIR 1995 SC 2169, Hon'ble Supreme Court has, inter alia, held as under :
Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceedings to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one ho had yet not touched 18 years of age, but still she was in the age of SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 17 discretion, sensible and aware of the intention of the accusedShyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyamthe appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother.
In case Mohan vs Rajasthan, 2003 Crl.LJ 1891, Hon'ble Rajasthan High Court as held as under : There is absolutely no explanation as to why if such an offence like rape was committed, why this matter was not reported for police for more than a month.
In case Mohd. Imran Khan & etc. vs State, 2010 Crl.LJ 1756, Hon'ble Delhi High Court has, inter alia, held as under : The case of the prosecution is that the appellants have threatened the prosecutrix by putting knives on her person and being afraid of them she accompanied them to Meerut. This part of deposition of prosecutrix where she claimed that she had been threatened and two knives have been put on her person when she was taken from Delhi to Meerut cannot be believed and is obviously false. The truth appears to be that since prosecutrix was previously known to appellants, and had SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 18 become friendly to one of them, she of her own abandoned the guardianship of her parents and eloped with the appellants. Though the prosecutrix has been found to be less than 16 years it cannot be said that she was not capable of knowing what she was doing. ....... in my view the facts and circumstances brought on record clearly shows that prosecutrix willingly accompanied the appellants and stayed with them till they were caught by police. The prosecutrix knew and had the capacity to know the full import what she was doing.
23. Reverting to the present matter, the chain of entire facts and the evidence of matter is reproduced to come to the conclusion of evidentiary value of the prosecution witnesses. As per case of prosecution, first of all the accused had called the Prosecutrix to old Delhi Railway Station with documents for arranging job for her. During crossexamination the Prosecutrix submitted that when she left the house, her son and her nephew were present. But she did not tell her husband or anybody else that accused was calling her. This conduct of prosecutrix does not appear to be natural and the question remained that why she has not disclosed her proposed visit to old Delhi railway station to meet accused who has promised her to arrange job for her. Disclosing this fact was also found to be important for prosecutrix because her son was aged about eight years at that point of time and well being and brought up of the son of prosecutrix was also SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 19 at stake.
24. Further, as per Prosecutrix they reached Jodhpur on next day. During crossexamination she deposed that when they reached Rajasthan at 8.309.00 AM she was fully conscious, but she did not tell any person from the public or police at railway station at Jodhpur that accused made her to consume some intoxicant and brought her from Delhi. This portion of crossexamination further reflects that police and public persons were present at the railway station. Now the question arises if the Prosecutrix was taken to Jodhpur after administering her some intoxicated substance, why she has not made hue and cry or alarm right at Jodhpur railway station itself when she was fully conscious at that time. There is no explanation that why the prosecutrix has not made complaint to police, public persons or railway employees etc. at Jodhpur when they reached there in the morning hours at 8.30 to 9.00 AM.
Further as per evidence of PW1 from railway station she was taken to hotel where they stayed for one night. But as per crossexamination she has not made complaint to auto rickshaw driver who had taken them to hotel or employee over there. In this respect as stated by PW2, manager of hotel during crossexamination in unmistakable terms has stated that Prosecutrix did not appear under any kind of pressure till she stayed there. Further as per evidence of SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 20 Prosecutrix the accused has taken her to rented room. In this respect PW3 Ms.Sangeeta owner of house has also stated that Prosecutrix has not made any complaint against accused to her and Prosecutrix herself told her that they were husband and wife. One more fact came in the evidence of Prosecutrix that on 25.12.2014 accused took her to Thar handloom where she got the job of cleaning glasses and window panes. Mr. Anandi Lal Nagar, Manager of Thar handloom was examined as PW7 has submitted to the effect that Prosecutrix herself came there to work as helper. During his cross examination, the witness submitted that Prosecutrix came alone to taken employment and she was not found under any pressure.
Further during crossexamination Prosecutrix submitted to the effect that her working timings were 10 AM to 8.30 PM at Thar handloom and was at distance of five kilometer from the place where they were residing. She further in unmistakable terms submitted that she was residing and going work place with accused with her consent. She further submitted that she has not told her employer, landlord, occupants of bus in which she used to travel, her neighborer about the incident. On calling explanation, the Prosecutrix submitted that she has not requested any of her colleague to provide her mobile to talk to her father or her husband. From the close scrutiny of entire chain of evidence of PW1, it SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 21 creates doubt in the mind of court that if she was under any pressure or threat at the hands of accused. It is further observed that prosecutrix was having ample opportunities of disclosing the fact of her abduction to various persons at various points of time viz. when they reached Jodhpur railway station, traveled to hotel, during their stay in hotel, during their stay in rented accommodation, while traveling from rented accommodation to her work place. The most important period to disclosed this fact was during her working hours because she was working alone over there at Thar Handloom.
The manner in which the prosecutrix has deposed, it cannot be ruled out that the prosecutrix has voluntarily consented to accompany the accused.
In case Hari Chand vs State, CRL.A. 860/2103 & CRL.M.B. 7634/2015 decided on 10.11.2016, Hon'ble High Court of Delhi while discussing the various judgments of Hon'ble Supreme Court, has, inter alia, held as under :
Settle legal position is that conviction can be based upon the sole testimony of the prosecutrix provided it is reliable and is of sterling quality. A court can return a finding of guilt for offence punishable under Section 376 IPC only if the prosecutions is able to first prove beyond reasonable doubt that the accused committed the offence where after the next step is of ascertaining the consent in case the prosecutrix is major.
SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 22 In 'Sadashiv Ramrao Hadbe Vs. State of Maharashtra & Anr.' 2006 (10) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be 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 surroundings 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."
In 'Abbas Ahmed Choudhary Vs. State of Assam', (2010) 12 SCC 115, observing 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, the Hon'ble Supreme Court held:
"Though the statement of prosecutrix must be given prime consideration, at the same time broad principle that the prosecution has to prove its case beyond reasonable doubt applied equally to a case of rape and there could be no SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 23 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 thoroughly demolished by the deposition of DW1."
Hon'ble Supreme Court in the decision reported as (2012) 7 SCC 171 'Narender Kumar Vs. State (NGT of Delhi)' held:
The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions insignificant discrepancies in the evidence of the witness which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts."
In view of the findings of the judgment, in order to hold the accused guilty for offence of rape, the evidence of prosecutrix should be clear and trustworthy etc. and it is the duty of prosecution to prove its case beyond reasonable doubt. However, in this matter as discussed earlier the evidence of prosecutrix is not free from doubts. Hence, it would not be safe to hold the accused guilty for offences he was charged in this matter. Hence, by giving benefit of doubt, the accused stands acquitted for offence under Section 342/366/376/506 of IPC. In view of provision of Section SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018 24 437A Cr.P.C, bail bond and surety bond of accused person furnished and accepted for six months. His earlier surety stands discharged.
25. File be consigned to record room.
Announced in the open Court on (BHUPESH KUMAR) this 18th April, 2018 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
SC No. 38/15 Bhupesh Kumar ASJ (SFTC)-01 West, THC, Delhi/18.04.2018