Delhi District Court
State vs . Rajbir Singh Jakhar Page No. 1/37 on 25 February, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT SOUTH EAST : SAKET COURTS: NEW DELHI
Unique Case ID No. 02406R0037562014
SC No. : 45/14 (old); 1341/16 (new)
FIR No. : 114/13
U/s. : 376/506 IPC
PS : Lodhi Colony, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Rajbir Singh Jakhar
S/o Shri Chandgi Ram
R/o House no. House no. 760,
Ward no. 7, Adarsh Colony
PS Nimka Thana,
Distt. Sikkar, Rajasthan .........................Accused
Date of Institution : 10.03.2014
Judgment reserved for orders on : 07.02.2017
Date of pronouncement : 25.02.2017
J U D G M E N T
FACTS :
1. This case vide FIR no. 114/13 u/s 376/506 IPC was registered at the police station Lodhi Colony, New Delhi on 11.07.2013 on the complaint of the prosecutrix (name withheld to protect her identity). The facts alleged in the complaint are as under: She has been working as ASI with CISF. When she was posted in the head quarters, Lodhi Road, she became friendly with the accused. He was posted in her branch as FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 1/37 Constable. They used to talk on phone. She had given loan of Rs.5600/ to the accused. When the accused got arrears of sixth pay commission, she asked him to return the loan amount but he did not. Sometimes quarrel took place on this issue.
On 13.07.2009, her marriage was fixed with Arjun Oraon. Her engagement ceremony was held. Accused did not want her to marry with Arjun Oraon. He also contacted Arjun Oraon. On 13.09.2009, the accused called her for an outing. He took her towards Gole Market where on the second floor of a quarter, he committed rape upon her. When she reached her house, he called her and said that he has prepared her CD. She got scared and did not tell it to anyone. The accused then put condition on her that she would continue making physical relations with him until she is married otherwise, he would get her marriage broken. He also asked her to get herself transfered. She alleged that the accused obtained her signature on blank paper whenever she proceeded on leave. He used to quarrel with Arjun and ask about her. Arjun became suspect of her relations with Rajbir. She alleged that the accused also made calls to Arjun assassinating her character. He told him that he has prepared her CD. He also made him hear her voice recording. He made his friends call Arjun. He also harassed Arjun. She alleged that Arjun then broke the engagement and refused to marry her alleging that he has threat of his life. She complained to her father. Her father then contacted the senior officer Ms. Manjari, however, she did not tell her about the accused making her CD. She alleged that the accused used to threaten her that she would not be able to show her face in the family and the society.
She alleged that after about a month, her father searched a boy for her namely Laxman Oraon. Before marrying, she asked the accused if he would marry her. The accused then replied that he would not divorce his wife but he said that he would marry her after his retirement. She alleged that she was to marry with FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 2/37 Laxman on 22.04.2010. The accused started blackmailing and threatening her. He also called her to meet. She went to him where he established physical relation with her at Nizamuddin in April 2010. She alleged that her marriage was to be held at Bokaro Steel City, Jharkhand but the accused made calls to her there. He used to harass and threaten her. She alleged that her family members knew that the accused has been harassing her. Because of shame, she tolerated him. She alleged that the accused after her marriage started making calls in her inlaws house to know if she was with her husband or not. She alleged that she had to join her office on 29.04.2010 but the accused put condition on her that if she would come with her husband he would tell him everything and would get her marriage broken. She came alone and joined duty. She alleged that the accused again started quarreling, abusing and blackmailing asking her to meet outside. One day at about 11 a.m., he stopped her at Kotla Road and told her that they both would see the CD. He also threatened her to hand over the CD to someone or load it on internet. In May 2010, he called her in a room at Nizamuddin where he made physical relation with her. When she was leaving, he gave her the CD. She went to her house and broke the CD but the accused told her that it was not the real CD. She alleged that the accused enquired from her about her sexual relations with her husband and how he made relations with her. She then complained to her husband who asked her to complain in her office. She alleged that the accused used to talk to her husband and ask him to leave Delhi. She alleged that her husband did not stay with her for more than two months and left her. She alleged that her husband Laxman instead of supporting her beat her. She alleged that one day accused called her at Saket where he committed sexual intercourse with her forcibly. He also quarreled and abused her. From 06.03.2011 to 07.03.2011, he continued making calls. He also came in her house at L402, Kotla where her mother was there. He asked her to come out. He took her to the parking of Jawahar Lal Nehru Stadium and told his FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 3/37 identity to her relative that he has made physical relations with her and prepared her CD. He asked him to marry with some other girl. She complained in her office. AC administration asked her to give the complaint in writing. When the accused came to know of this fact, he followed her and on 09.03.2011 evening he caught her hand and pushed her. He also abused her. He restrained her at the flyover for two hours and threatened her to throw from the bridge. With the intervention of some ladies living in the jhuggis, she managed to flee from there. She alleged that the accused physically and mentally harassed her. He sexually exploited her. He is in possession of her nude pictures. She alleged that on 16.03.2011, she made complaint in her department. The accused in the departmental inquiry tried to influence the witnesses and destroy the evidence. He also showed her clippings to others in the barrack.
INVESTIGATION :
2. On this complaint, SI Jag Roshni did the investigation. She got the prosecutrix counseled from the NGO. On 30.07.2013, she got the prosecutrix medically examined at AIIMS. On 31.07.2013, her statement u/s 164 Cr.P.C. was recorded. Effort was made to collect the CD and mobile phone but they were not found. The accused was formally arrested.
Section 201 IPC was added. He was got medically examined. He was found capable of performing sexual intercourse under normal circumstances. After the investigation, the accused was sent for trial for the offences punishable u/s 376/506/201 IPC.
CHARGE :
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case committed to this Court. Vide order dated 25.07.2014, FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 4/37 prima facie case was made out against the accused u/s 376/506 IPC.
Charge was framed. He pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused, prosecution examined as many as sixteen witnesses.
PW1 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence.
PW2 Dr. Nisha Malik did the medical examination of the prosecutrix on 30.07.2013 vide MLC Ex. PW2/A. She stated that her hymen was ruptured, however, there was no external injury on her person. PW3 Dr. Mantaran Singh did the medical examination of accused on 19.08.2013 vide MLC Ex.PW3/A qua his potency and found him capable of performing sexual intercourse under normal circumstances.
PW4 is the niece of the prosecutrix. She stated that she lived with the prosecutrix from 2008 to June 2010 in a government flat no. L402, Kotla Seva Nagar, Delhi. She stated that the accused used to visit her mausi regularly. When she objected, he stopped coming regularly. However, he used to talk with the prosecutrix on phone regularly. She stated that the accused on coming to know of the engagement of the FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 5/37 prosecutrix, quarreled with her. One day, he came in drunken condition in the house with his friend and asked the number of Arjun from the prosecutrix. When she refused, he took a knife from the kitchen and cut his veins and said "me tumhe kisi or ki nahi hone dunga. Tum sirf meri ho." It continued till night. The prosecutrix made the accused understand that she was not going to marry soon. The accused then got the number of Arjun and called him. Arjun became suspect and refused to marry her since the accused told him about his relation with the prosecutrix that she is characterless. She stated that her nanaji fixed the marriage of the prosecutrix with Laxman at Jharkhand. The accused also tried to break that marriage. He threatened her to leave Delhi. She stated that the prosecutrix married to Laxman on 22.04.2010 at Bokaro Steel City. On that day, she was keeping the mobile of the prosecutrix. The accused made several calls and insisted to talk to the prosecutrix. When the prosecutrix refused, he used rough language and talked to the prosecutrix for quite long. She stated that the prosecutrix told her that the accused has put a condition that she would not come with her husband in Delhi lest he would give the CD and clippings to him and get their marriage broken. She stated that FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 6/37 Laxman told her nanaji that the accused has told him that he has relation with the prosecutrix. He refused to live with her and went away.
On being crossexamined, she admitted that she did not see video clipping or photograph and she gave the statement what the prosecutrix had told her during their meetings. She was also confronted with her statement made in the departmental inquiry Ex.PW4/DA on 09.01.2012. She stated that she had seen the prosecutrix meeting with the accused outside i.e. at Indiagate, Children park etc. She also admitted her statement Ex.PW4/DB which she had given in the departmental inquiry. She denied that the prosecutrix wanted to marry with the accused and she made the false allegations against him.
PW5 ASI Gurdeep Raj on 11.07.2013 recorded the FIR Ex. PW5/A. PW6 Ms. Neeta Singh, DIG, NCR CISF proved the service and posting record of the prosecutrix for the period from 06.02.2007 to 24.03.2011. She stated that the prosecutrix was posted in Establishment Branch, Head Quarter Delhi. She stated that the prosecutrix had filed a complaint against the accused with regard to her sexual harassment. A Departmental Enquiry was held and the accused was dismissed from the FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 7/37 services on 29.06.2013.
PW7 Gangaram was the neighbour of the prosecutrix in the year 2013. He stated that he never saw the accused coming in the house of the prosecutrix nor the prosecutrix told him about her relation with the accused. He was declared hostile but nothing favouring the prosecution came from his mouth. He stated that once Laxman had come in the quarter in the absence of the prosecutrix and stayed for a week.
PW8 Arjun Oraon was the person who was engaged with the prosecutrix. He stated that his marriage with the prosecutrix was fixed on 13.07.2009. During that period, he received a call from an unknown person who claimed to have been working in the office of the prosecutrix that he has an affair with her. He asked him not to marry with the prosecutrix. He stated that the person did not tell him anything about making her obscene video but he threatened him not to marry with her. He brought this fact to the notice of his family members who then broke their engagement. He denied that the person had revealed his name as Rajbir or that he had told him that he has prepared the obscene video of the prosecutrix.
PW9 D.K. Sharma, Asst. Commandant, CISF FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 8/37 brought the record regarding the appointment of prosecutrix and the accused in CISF and their details of transfers and postings Ex.PW9/A to Ex.PW9/E. He also proved the order vide which the accused was dismissed from the service pursuant to the departmental inquiry.
PW10 is the nephew of the prosecutrix. He stated that in 2010, he with the husband of the prosecutrix came to visit her at Delhi. After about 8 - 10 days, he came to know that the accused used to visit her house. He stated that a quarrel took place between the prosecutrix and her husband. Her husband then left Delhi and did not come back. He stated that because of the relations of the accused with the prosecutrix, her matrimonial life got disturbed. He stated that the accused used to check the mobile phone of the prosecutrix and harass her. He, however, stated that the accused and the prosecutrix used to behave normally in his presence.
PW10 Ms. Saumya Chauhan recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW10/A. PW11 is the father of the prosecutrix. He used to work as gardener in CISF Unit, Group Headquarter, Patna. He stated that he came to know from the prosecutrix and PW4 that the accused used to visit the FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 9/37 house of the prosecutrix and had taken Rs. 20,000/ from her. He had also seen the accused in her house. He stated that the accused used to harass her and wanted to marry her forcibly. He deposed on the lines of PW1 and stated that the prosecutrix had given complaint in the department against the accused. PW12 Ashok Oraon was posted as Constable in CISF since 2008 in Delhi Unit. He stated that in December 2010, he had met the prosecutrix outside the office at CGO complex. She was looking disturbed. When he asked her the reason, she did not tell him anything and only told him that her husband has left her. After 20 - 25 days when he came to Delhi, he called her. He stated that on 06.03.2011, he received a call from the accused that he is the guardian of the prosecutrix. He asked him not to call the prosecutrix. When he complained to the prosecutrix, she told him that the accused is posted in her department and he did not get her engagement and marriage materialized. He stated that the prosecutrix also told him that the accused has her audio and video clips. He stated that on 07.03.2011, the accused asked him if he wanted to marry with the prosecutrix. When he said 'yes', he told him that he has video and audio of the prosecutrix and asked him not to maintain FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 10/37 relation with her. He also told him that he has sexual relation with the prosecutrix for four years. He recorded the conversation between him and the accused. He stated that at that time he was using two sim nos. 9015626103 and 9312758633. He stated that on 09.03.2011, the prosecutrix told him that the accused has threatened her to withdraw the complaint from the department. He stated that the accused also threatened him that he would upload video and audio of the prosecutrix on net.
On being crossexamined, he stated that the prosecutrix never complained against the accused prior to 06.03.2011. He admitted that he did not see audio or video of the prosecutrix.
PW13 W/SI Kailash got the prosecutrix medically examined. She prepared the site plan Ex.PW13/A of Baba Guest house, Nizamuddin. She stated that the prosecutrix also pointed out the room no. 106 and quarter no. H9/61, Sector1, Pushp Vihar, where the accused had taken her.
On being crossexamined, she stated that she did not find any entry in the guest register regarding the visit of the prosecutrix and the accused nor she seized the CCTV footage. She also stated that the occupant of the quarter no. H9/61 did not join the FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 11/37 investigation.
PW14 HC Lallan Sah recorded the statement of Arjun Oraon Ex.PW8/A. PW15 Rajeev Ranjan was the Nodal Officer of Tata Tele Services Ltd. He proved the CDR in respect of mobile no. 9279837635 for the period from 01.06.2010 to 31.03.2011 Ex.PW15/A. He stated that the mobile phone number was registered in the name of Basanti Oraon. He proved the Cell ID chart Ex.PW15/B and the certificate u/s 65B of the Indian Evidence Act.
PW16 W/SI Jag Roshni was the investigating officer of this case. She deposed on the lines of investigation. She collected ration card and allotment papers of the accused. She admitted that she did not verify the facts alleged in the complaints Ex.PW1/A and Ex.PW1/B nor the marriage card Ex.PW1/G and ID card Ex.PW1/H qua the allotment of quarter to the accused.
STATEMENT OF THE ACCUSED U/S 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that he has returned the loan amount to the prosecutrix. He stated that on 12.09.2009, he and the prosecutrix were on duty and they did not leave the duty during the office hours. He denied having prepared any FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 12/37 CD or taking the prosecutrix to Baba Guest house, Nizamuddin and Pushp Vihar. He stated that he never committed sexual intercourse with the prosecutrix nor harassed her. He stated that the attendance register used to be in the custody of the section officer. He stated that the prosecutrix was attracted to him though he was already married. She pressurized him with an intention to extort money. A quarrel took place between her and his wife on 06.03.2011 and she then made the false complaint against him. DEFENCE EVIDENCE :
6. In defence, the accused examined six witnesses: DW1 Saroj is the wife of the accused. She stated that on 06.03.2011 at about 4 / 5 p.m., a call came from the number 9015469875 on the mobile of the accused 9950757878. She picked the call but no one responded. She heard 'love you Raj'. When she inquired, the caller told her name (prosecutrix). When she objected and got annoyed, she threatened her to ruin their life. She admitted that her husband had taken loan from the prosecutrix. She denied that the prosecutrix never made call nor threatened her.
DW2 and DW5 P.S. Sreejith was the Asstt.
Commandant, CISF. He brought the attendance register for the period from September 2009 to May 2009 Ex.DW2/1 to Ex.DW2/6. He also brought the record of clearance of medical examination of SHAPE Ex.DW2/7 to Ex.DW2/10. He stated that he FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 13/37 can not say from the record if the prosecutrix was subjected to gynecological examination. He also brought the record of the order dated 04.04.2011 regarding suspension of the accused Ex.DW5/1. DW3 Gopal Krishan was the Head Constable, Head Quarter, CISF. He stated that the attendance register of the branch used to remain in the custody of the section officer and no one could manipulate it. The attendance register used to be signed at about 9:30 a.m. and 6 p.m. and no one was allowed to leave the branch without the prior permission of the section officer. He stated that he never saw or heard about the alleged CD.
DW4 Samta Devi was the neighbour of the accused at his native place. She stated that on 06.03.2011 when she was in the house of the accused, a call came on the mobile of the accused. It was attended by his wife. She deposed on the lines of DW1 and stated that the conversation from this phone lasted for 3 - 4 minutes.
DW6 Deen Dayal was the Section officer, CISF. He stated that the attendance register of the branch used to be under his control. There was no possibility of any manipulation in the attendance register. In his absence, the attendance register used to be under the FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 14/37 custody and control of his senior. If any officer remained on leave, his leave was recorded in the register and no one was allowed to leave the office without prior permission.
ARGUMENTS & CONTENTIONS :
7. I have heard the arguments advanced by Ld. Counsel Sh. Turan Garg for the accused and Ld. Addl. PP for the State.
8. Ld. counsel for the accused vehemently argued that the prosecutrix and the accused used to work in the same office in the head quarters of CISF at Lodhi Colony. No CD of audio or video recording was seized or produced during the departmental inquiry or the investigation. The first incident of alleged sexual intercourse took place on 12.09.2009 but the complaint at the police station was made for the first time on 15.03.2013.
As per the complaint, the accused got broken the engagement of the prosecutrix from Arjun in 2010 but she did not file complaint in this regard. She married to Laxman Oraon on 24.04.2010 but till 09.03.2011, she did not file complaint to the Commandant. PW7, the immediate neighbour of the prosecutrix did not state that the accused used to come in the house of the prosecutrix and quarrel with her. PW8 did not say anything about the video CD. PW10 has stated that the prosecutrix and the accused used to behave normally in his presence. Ld. Counsel stated that the prosecution did not examine Ms. Manjari whom the prosecutrix had made the complaint regarding the harassment caused by the accused. There is no evidence / record to show that the accused had taken the prosecutrix to Baba Guest House at Nizamuddin or in the house at Pushp Vihar, Saket.
FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 15/37 The call details record of the mobile of the accused and the prosecutrix were not collected and verified. Ld. Counsel stated that the accused had returned the loan amount to the prosecutrix. The prosecutrix was attracted to the accused. She wanted to marry with him. She had also talked to his wife. When his wife scolded her, she made the complaint. Ld. Counsel drew the attention of the testimonies of the defence witnesses and the attendance register to contend that on the day of alleged incident, the accused and the prosecutrix were very much present in the office. DW5 has completely ruled out any manipulation in the attendance register. Ld. Counsel stated that during the evidence of the prosecutrix, a CD was played which the prosecutrix has admitted to be correct and it completely demolishes the case of the prosecution. Ld. Counsel stated that the prosecutrix was the Head Constable and the accused was Constable. Had there been harassment or threatening, the prosecutrix would have complained against the accused in the office on the first day itself. In the brief history given to the doctor, she did not allege any incident before 2010. In the first complaint dated 16.03.2011 Ex.PW1/A, she did not allege any date or place. She made the second complaint Ex.PW1/C after about 9 months on 05.12.2011 giving different versions adding other incidents though all the incidents were prior to 16.03.2011. In the complaint Ex.PW1/D dated 01.03.2012, she made material improvements and increased the episodes. Ld. Counsel submitted that there is no forensic or medical evidence to support the case of the prosecution. The facts alleged in the complaint are contrary to the office records which show the presence of the prosecutrix in the office. Had there been manipulation in the register FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 16/37 on which the prosecutrix used to sign, she would have complained to the Senior Officer regarding manipulation which was not there in this case. The departmental inquiry shows that it was a case of consented sex. The accused has already challenged the departmental inquiry. The incident at Jawaharlal Nehru Stadium parking at night on 07.03.2011 has been concocted by the prosecutrix as no evidence came to substantiate this fact. Ld. Counsel stated that it is a case of false implication and the accused deserves to be acquitted. In support of his contentions, Ld. Counsel placed reliance on the judgments in State of Haryana Vs. Ram Singh AIR 2002 SC 620; Narender Kumar VS. State (NCT of Delhi) (2012) 7 SCC 171; Dharmendra Yadav Vs. Union of India & Ors. 232(2016) DLT15B; Dinesh Kumar Singh Vs. State 2016 Law Suit (Del) 4267; 2014 Achey Lal Vs. State Govt. of NCT of Delhi Law Suit (Del) 4324; Chinta Sinku VS. State of Jharkhand 2007 (Law Suit (Jhar) 173; K P Thimmappa Gowda Vs. State of Karnataka 2011 Law Suit (SC) 307; Alok Kumar VS. State & Anr. Crl. M.C. No. 299/2009Delhi High Court; Tilak Raj VS. State of Himachal Pradesh 2016 Law Suit (SC)13 and Vijayan Vs. State of Kerala (2008) 14SCC763.
9. Ld. Addl. PP per contra argued that the departmental inquiry clearly incriminates the accused in the commission of the alleged offence. Although the present case was registered in the year 2013 but she had made complaint in her department in the year 2011 itself. The departmental inquiry also commenced in the year 2011. There was no system of biometric attendance in the office of CISF at the time of incident. Ld. Addl. PP stated that the prosecutrix is consistent and cogent FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 17/37 as to the incidents happened with her. Ld. Addl. PP stated that since the prosecutrix was medically examined in 2013, no evidence of external injury came. Ld. Addl. PP stated that the accused used to harass the prosecutrix. He got broken her engagement and marriage from Arjun Oraon and Laxman which facts are proved from the testimonies of PW4, PW8, PW10, PW11 and PW12. Since the complaint was made in 2013, the call details record of the period from 2009 to 2011 could not be collected. Ld. Addl. PP stated that there is enough direct and circumstantial evidence which prove the complicity of the accused in the commission of the alleged offence.
Findings :
10. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record and also the case laws referred during the course of arguments.
11. The accused has been charged with the offence of rape and criminal intimidation. As such, before adverting to the merits of rival submissions, a reproduction of the definition of the offences would be necessary and relevant.
12. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 18/37 been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.......
Fifthly..........
Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.......
13. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
14. Section 506 IPC provides that whoever commits the offence of criminal intimidation shall be punished.... Criminal intimidation as defined u/s 503 IPC means that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Whether the accused is guilty of the offences punishable u/s 376 and 506 IPC or not?
FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 19/37
15. For deciding this question, it is relevant to discuss the testimony of the prosecutrix.
16. PW1 / prosecutrix has testified on oath that in 2008 she was posted as Head Constable (Clerk), CISF office at CGO Complex. The accused was posted as Constable. There, they met each other and became friends. They started talking on phone. In 2008, he borrowed Rs.4000/ from her. On 01.01.2009, he again borrowed Rs.16,000/ from her. In September 2009, she asked him to return money but the accused did not and said that he has spent money on her. It resulted into a quarrel and they stopped talking to each other.
She stated that on 13.07.2009, a proposal for her marriage with Arjun Oraon was finalized. She got the accused talked to Arjun Oraon. Accused saved his mobile number. He started creating problem. He used to call Arjun on his mobile. On 12.09.2009, he took her for outing in the area of Gole Market. From there, he took her in the quarter of his friend at Gole Market where he committed sexual intercourse with her without her consent and against her wishes. He then dropped her at Kotla. From there she went to her house. In the evening, he told her that he has made CD of the said act. He asked her to continue physical relations with him till she marries Arjun. Since she was about to marry, she got scared and did not make complaint against him. She stated that whenever she went on leave, the accused took in writing from her that she would not meet Arjun. He also confirmed it from Arjun. The accused also told him that she is characterless and he has made her obscene CD. He also played her audio recording to Arjun. She stated that the accused started harassing and FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 20/37 torturing Arjun and finally, Arjun broke engagement (sagai) from her. She stated that Arjun disclosed her that he has threat of his life from the accused. She informed her father but she did not tell him that the accused had made her obscene CD. Her father informed Ms. Manjari Jaruhar, IG of CISF. She stated that since the accused had threatened her to make the CD public, she did not tell it to Ms. Manjari Jaruhar. She stated that in March 2010, her marriage was finalized with Lakshman Oraon. Since accused got broken her first engagement, she was angry from him. She asked him if he would marry her, but he said "what is his fault or the fault of his children". He also told her that he would marry her after his retirement. She stated that when she was going to her native place to marry Lakshman scheduled for 22.4.2010, the accused blackmailed her on the pretext of making the CD public and on 10.04.2010, he called her in Baba Guest House at Nizamuddin where he committed sexual intercourse with her forcibly. He called her several times at her native place while her marriage was being performed. Since, she was scared and frightened, she attended his calls but when she avoided his calls, he abused her in filthy language. She stated that after her marriage, accused called her several times just to know if she was with her husband. On 29.04.2010, accused threatened her not to come to Delhi with her husband lest he would disclose everything to him. She with her father came to Delhi and joined her duty on 29.04.2010. After her father returned to her native place, accused again started harassing her on her way to home. In May 2010 accused met her at Kotla Mubarak Pur and forced her to stay with him till 11.00 pm promising that he would deliver her the CD.
FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 21/37 In May, 2010, he called her in his room on the pretext of giving her CD at the post lunch session where he committed sexual intercourse with her forcibly. He gave her a CD, which she smashed in her house. The accused thereafter told her that it was not the original CD. She stated that on 21.05.2010, her husband came to Delhi. The accused started calling her in odd hours and talking in vulgar language with regard to her sexual relations with her husband. She then narrated the incident to her husband, who advised her to make complaint against the accused in her office. She stated that since she was scared from the accused, she did not make the complaint. She stated that the accused also threatened her husband to leave her. She stated that her husband left her after two months only and did not come back. She stated that the accused used to snatch her mobile phone to check the call details. In March 2011, he called her in his room by giving threats to upload her CD on Internet. She went there where he committed sexual intercourse with her forcibly. She stated that on 07.03.2011, the accused came at her room and called her. He forcibly took her to the parking near Jawaharlal Nehru Stadium and called her relative Ashok Oraon and said that he has made her obscene CD and had physical relations with her. She remained there for about 2 ½ hours. She stated that on the next day, she met the Asstt. Commandment and made complaint that the accused has been harassing her. However, she did not tell him about the incidents of rape and CD. She stated that on the same day in the evening, the accused followed her since he smelled that she lodged complaint against him. He caught her hand and tried to drag her in the bus. He threatened her to take back the complaint and not to disclose the FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 22/37 incidents to anyone. When she refused, he pressed her neck on the way and wrongfully restrained her at the flyover of Jawahar Lal Nehru Stadium for two hours. He tried to push her down from the flyover, however, she was rescued by the women living in the jhuggis. She ran to her house. She stated that on 16.3.2011, she gave a written complaint Ex.PW1/A to the Asstt. Inspector General. She stated that the accused thereafter showed obscene CD to the officials in the area of MTO, RI office and barrack, which fact she came to know from them. She stated that after the complaint, she was transferred to West Bengal. She stated that when no action was taken, on 15.03.2013, she made complaint Ex.PW1/B in Delhi. She stated that the accused manipulated the attendance register by showing her presence on a particular date, though, she was absent. She stated that on 5.12.2011, she gave a detailed complaint Ex.PW1/C since her office had asked to detail the incident. She also wrote letters Ex.PW1/D and Ex.PW1/E to her office to expedite the enquiry and seize the obscene video. She proved her complaint given to the police Ex.PW1/B, her MLC Ex.PW2/A and her statement Ex.PW1/F before the Magistrate. She also handed over the marriage card Ex.PW1/G and a CD containing telephonic conversation between her, accused and Ashok Oraon in the parking near Jawahar Lal Nehru Stadium recorded by Ashok Oraon. She proved the transcript of CD A1 and A2.
On being crossexamined, she admitted that she made the first complaint in writing against the accused on 16.03.2011. She denied that on 12.09.2009, they were on duty from 9:30 a.m. to 6 p.m. She stated that it was holiday and the accused manipulated her signatures on the register.
FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 23/37 She stated that she came to know of the manipulation after she was transfered from Delhi, so she did not make complaint. She admitted that sometimes, she used to attend office on Sundays. She admitted that she did not make complaint against the accused after the accused dropped her at Kotla Mubarak Pur after the incident. She stated that in the departmental inquiry, CD was not produced. She stated that her numbers were 8010837958 and 9546448114. She stated that her father knew Ms. Manjari. She was confronted with the messages Mark X and stated that she had sent the messages at serial no. 5, 6, 7, 8. She was also shown the statements recorded during departmental inquiry Ex.PW1/D1 and Ex.PW1/D5. She denied that she used to send SMSs to the accused regularly. She denied that she was attracted towards the accused and when the accused refused, she falsely implicated him. She admitted that her husband never made complaint against the accused. She denied that on 10.04.2010 and 16.05.2010 she was on duty from 9:30 a.m. to 6 p.m. She stated that on 07.03.2011, the accused came in her house at about 4 a.m. He took her to Jawahar Lal Nehru parking. She was on foot. She stated that she raised alarm when the accused dragged her. It was 20 minutes walk from her house but no one came to rescue her. She stated that when the accused dragged her, her buaji was in her house. She was sleeping. She talked to Ashok Oraon for about two hours and during that period, she did not try to run away from there. She stated that on 09.03.2011, the accused held her at the flyover of Jawahar Lal Nehru Stadium from 5:30 p.m. to 8:00 p.m. She denied that on that day, she was in the office upto 6 p.m. She admitted that she did not make complaint to FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 24/37 the police of the incident happened on 09.03.2011. She was shown the transcript of the conversations between her and the accused Mark X which she admitted to have taken place. She denied that on 06.03.2011, she had quarreled from the wife of the accused and she made the complaint out of frustration.
17. On a closer scrutiny of the evidence of the prosecutrix / PW1, I find that prosecutrix and the accused used to work in the office of CISF at CGO Complex, Lodhi Road, New Delhi. The accused was the Constable and the prosecutrix was the Head Constable. They used to mark their attendance in the attendance register. They were friends and used to talk on phones. The accused was already married having children. Although the prosecutrix / PW1 has stated that the accused used to manipulate the attendance register by showing her presence on a particular date though she was absent and on 12.09.2009, the accused manipulated her signature on the attendance register which facts she came to know after she was transferred from Delhi and for that reason, she did not make the complaint but she has admitted that she used to attend the office on Sundays. In the instant case, the accused has examined DW3 and DW6 who were the Head Clerk and Section Officer in the office of CISF. DW6 has stated that the attendance register of the Branch used to be under his control. There was no possibility of any manipulation in the attendance register. In his absence, the attendance register used to be under the custody and control of his senior. If any officer remained on leave, his leave was recorded in the attendance register and no one was allowed to leave the office without prior permission. DW3 corroborated this fact and stated that the attendance FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 25/37 register of the Branch used to remain in the custody of Section Officer and no one could manipulate it. It used to be signed at 9:30 a.m. and 6 p.m. and no one was allowed to leave the Branch without prior permission of the section officer.
18. PW1 / prosecutrix has deposed that on 12.09.2009, the accused took her for outing in the area of Gole Market. From there, he took her in the quarter of his friend where he committed sexual intercourse with her against her wishes. She denied that she and the accused were on duty on 12.09.2009 from 9:30 a.m. to 6 p.m. She stated that it was Sunday. Perusal of the attendance register and the record Ex.DW2/1 produced by the office of CISF would show that both accused and the prosecutrix were on duty on 12.09.2009 and they had marked their attendance in the register. Question arises when the attendance register used to be under the control of the Section Officer how the accused could manipulate it. Had it been so, what had prevented the prosecutrix not bringing this fact to the notice of the Section Officer. It is not the case that she had marked the attendance only on 12.09.2009 and not thereafter. The attendance register produced in the Court does not show any manipulation. Testimonies of the defence witnesses also show that the prosecutrix never brought this fact to their notice.
19. PW1 / prosecutrix has deposed that on 13.07.2009, the proposal of her marriage with Arjun Oraon was finalized. She also got the accused talked to Arjun. The accused thereafter started creating problems. He used to call Arjun on his mobile. It is not understood why she on 12.09.2009, went with the accused for outing as well as in the quarter of his friend at FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 26/37 Gole Market when the accused was allegedly creating problem for her. She has stated that there he committed sexual intercourse with her forcibly. He then dropped her at Kotla, from where she went to her house. It is relevant to mention that both prosecutrix and the accused had been working in the police department. I failed to understand why the prosecutrix did not make complaint against the accused and agreed to go with him to Kotla thereafter.
20. PW1 / prosecutrix has stated that in the evening, the accused told her that he has made her CD. He also asked her to continue physical relations with him till she marries Arjun. She got scared and did not make the complaint. She has also stated that the accused had told Arjun that she is characterless and he has made her obscene CD. He also played her audio recording to Arjun. He started harassing and torturing him and finally he broke the engagement. Testimony of PW8 / Arjun would show that he had received a call from an unknown person who had claimed to have been working in the office of prosecutrix that he has an affair with the prosecutrix. That person did not tell him anything about making her obscene video but had threatened him not to marry with the prosecutrix. He categorically denied that the person who made the call was Rajbir or he had told him that he has prepared her obscene video. His testimony is contrary to the deposition made by the prosecutrix as to the accused telling him about making her obscene video. For the sake of arguments even if it is assumed that she got scared but when this factum of making obscene video exposed, why she not made complaint to the police or the CISF officers. She has stated that Arjun Oraon thereafter broke the FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 27/37 engagement. Surprisingly, even then she neither complained this fact to her father nor to Ms. Manjuri who was IG in CISF though it was a serious matter. She has stated that when her engagement was broken, she was annoyed and asked him if he would marry her but the accused said "what is his fault or the fault of his children". He told her that he would marry her after his retirement. Strangely, even then, she did not make complaint against the accused. It is also relevant to reproduce some of the messages MarkX sent by her to the accused which she has admitted in her testimony.
Raj aapko mere pyar ki kasam cell on karo love you raj mai aapke pai jhhoti hu. Mujhe aapne se is tarah dur mat rakho ki mai aapka aawaj ki liye taras jau.
Raj nidi kar rahe ho kya?
Kya kar rahe ho mandome raj?
Raj love you please call me?
21. The above messages are of the period from 18.04.2010 to 22.04.2010 where she had expressed her love for the accused. She also admitted her writing and signature on the note Ex.PW1/D6 and slip MarkY. Perusal of which also show that she used to love the accused. Though, she subsequently denied having written and signed the above but looking into her writings in the complaints and other documents, no credence can be given to her denial. Further, the prosecutrix has also admitted the transcript of a conversation Mark Z, perusal of which also shows that she used to love the accused and she wanted the accused to be in touch with her.
22. PW4 has deposed that the accused used to visit the prosecutrix regularly. When she objected, he stopped coming regularly. However, he FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 28/37 used to talk to the prosecutrix on phone. PW4 has further deposed that one day he came in drunken condition in her house with his friend and asked the number of Arjun from the prosecutrix. When she refused, he took a knife from the kitchen and cut his veins and said "me tumhe kisi or ki nahi hone dunga. Tum sirf meri ho". It continued till night. In her testimony, PW1 / prosecutrix did not depose this fact nor these fact came in the complaints Ex.PW1/A to Ex.PW1/E and in her statement u/s 164 Cr.P.C. Ex.PW1/F.
23. PW1 has deposed that in March 2010, her marriage was fixed with Laxman Oraon. When she was going to her native place to marry with Laxman, accused blackmailed her on the pretext of making her CD public. He called her at Baba Guest House at Nizamuddin where on 10.04.2010, he committed rape upon her. PW13 has stated that she did not find any entry in the guest register regarding the visit of the prosecutrix and the accused in the guest house. As per the attendance register, on 10.04.2010, both were on duty. According to the prosecutrix, the accused had called her in day time. Although PW1 denied that she was on duty from 9:30 a.m. to 6 p.m. on 10.04.2010 but the attendance register Ex.DW2/2 belies this fact.
24. PW1 / prosecutrix has deposed that when she was in her native place to marry Laxman, the accused called her several times when her marriage was being performed. Since she was scared and frightened, she attended his calls. When she avoided, he abused her in filthy language. It is unbelievable that she during that time had attended his calls. PW4 who is the niece of the prosecutrix has stated that on 22.04.2010, she was keeping the mobile of the prosecutrix on which the accused made several calls and FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 29/37 insisted to talk to the prosecutrix. When the prosecutrix refused, he used rough language and talked to the prosecutrix for long. I could not understand why PW4 did not bring this fact to the notice of the father of the prosecutrix or her close relatives. In the instant case, no CDR of the above period was brought on record. It is not known from which number the accused made the call and on which number the prosecutrix received the call. Although, the prosecution has examined PW15 to prove the CDR in respect of the mobile number 9279837635 for the period from 01.06.2010 to 31.03.2011 Ex.PW15/A but the aforesaid number was neither in the name of the accused nor the prosecutrix. It was in the name of someone else. The prosecution did not collect any evidence which number the accused was using at the relevant time.
25. PW1 has deposed that on 29.04.2010, she joined her duty. The accused again started harassing her. In May 2010, he met her at Kotla Mubarak Pur and forced her to stay with him till 11 p.m. He also promised to deliver the CD. In May 2010, he called her in his room in post lunch session where he committed sexual intercourse with her forcibly. It is strange that even then she did not make complaint to her Superiors or to the police though she had been working in a disciplinary force. She has deposed that on 21.05.2010, her husband came to Delhi. The accused started calling her at odd hours in vulgar language. She then narrated the incident to her husband who advised her to make complaint against him in her office. Strangely, even then she did not make the complaint though everything was in the notice of her husband. The explanation given by the prosecutrix that she was scared, does not inspire confidence. It is relevant FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 30/37 to mention that by that time her relations from her husband had not become strained. There was no reason for her to be scared from the accused. It was her husband who had advised her to make complaint. PW1 has stated that the accused also threatened her husband to leave her. He left her after two months and did not come back. It is strange that even then, she did not make the complaint. In the instant case, the prosecution neither examined the husband of the prosecutrix nor cited him in the list of witnesses. No explanation came from the side of prosecution why this material witness was withheld.
26. PW1 has deposed that in March 2011, the accused called her in his room giving her threats to upload CD on the net. She went there where he committed rape upon her. It is strange that even then she did not make complaint against the accused.
27. PW1 has further deposed that on 07.03.2011, the accused forcibly took her to the parking near Jawaharlal Nehru Stadium and called Ashok Oraon. He told him that he had made her obscene CD and had physical relations with her. She remained there for 2½ hours. Although she raised alarm when the accused dragged her but no one came to her rescue. She, however, admitted that people were coming and going at that time and she did not try to run away from there. PW12 / Ashok Oraon has stated that the prosecutrix had told him that the accused has her audio and video clips. On 07.03.2011, he told the accused that he wanted to marry the prosecutrix but the accused asked him not to maintain relations from her. His testimony shows that he had met the prosecutrix in December 2010 and the prosecutrix did not tell him anything against the accused prior to FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 31/37 06.03.2011. He admitted that he did not see any audio or video of the prosecutrix. Even then neither the prosecutrix nor PW12 made complaint to the police of the incident happened on 07.03.2011.
28. PW1 has stated that on 16.03.2011, she gave the complaint Ex.PW1/A to the AIG and thereafter the accused showed obscene CD to the officials in the area of MTO, RA office and barrack which fact she came to know from them. In the instant case, no investigation was made from the officials who had allegedly seen the obscene CD of the prosecutrix. It is relevant to mention that till date, no obscene CD was recovered from the possession or at the instance of the accused. Testimony of DW1 shows that on 06.03.2011, a call came on the mobile of the accused. She picked up the mobile but no one responded. She heard 'love you raj'. When inquired, the caller told her name (prosecutrix). When she objected, she got annoyed and threatened that she would ruin their life.
29. PW1 has deposed that on 09.03.2011, the accused caught her hand and tried to drag her in the bus. He threatened her to take back the complaint. When she refused, he pressed her neck and wrongfully restrained her on the flyover of Jawahar Lal Nehru Stadium for two hours. He tried to push her down from the flyover, but she was rescued by the jhuggi dwellers below the flyover. It is to be noted that there was no investigation on this aspect. It is relevant to mention that the first complaint Ex.PW1/A made by the prosecutrix in her office was on 16.03.2011 and not before 09.03.2011.
30. In the instant case, the prosecutrix made complaint in her office on 16.03.2011 but in the police station, she gave on 15.03.2013. No FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 32/37 explanation came from the side of prosecutrix / prosecution why she made the complaint so late. It assumes significance because the factum of making her obscene CD by the accused had been exposed in her office in 2011 itself.
31. The delay in FIR, the testimony of the prosecutrix and the associated 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. In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive evidence contributes to the doubt in the prosecution case. In the case of Vijayan vs. State of Kerala (2008) 14 SCC 763, the incident took place seven months prior to the date of lodging of complaint. No complaint or grievance was made either to the police or to the parents prior thereto. It was held that in cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supportive evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape.
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 deserves the benefit.
FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 33/37
32. In the instant case, the CD which is allegedly the voice recording between the accused and Ashok Oraon was played in the Court but in the said video recording, no reference of making obscene video of the prosecutrix by the accused came. The accused had told Ashok Oraon that the prosecutrix and he used to love each other. Nothing came that the accused blackmailed the prosecutrix. Even otherwise the prosecutrix did not produce the original source of the CD. No certificate u/s 65B of the Indian Evidence Act was filed with the CD. In view of the law laid down in the case Anvar PV Vs. Bashir (2014) 10 SCC 473, the CD cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied.
CONCLUSION:
33. On an analysis of the testimony of the prosecutrix with the testimony of other witness and the record, I find that the prosecutrix has not presented the true facts. She is not cogent and consistent. Her testimony can not be said to be of sterling quality to base the conviction of the accused. Facts and circumstances show that prosecutrix and the accused used to love each other. The prosecutrix wanted to marry with the accused but the accused was already married. They used to meet each other and move around. They also had physical relations. When their relations exposed, she made the complaint against the accused. The story of making obscene video appears to be after thought to give a colour of rape and extortion / threat. Delay in lodging the complaint also proves fatal to the prosecution case. There is no scientific and forensic evidence to corroborate the testimony of the prosecutrix. The audio recording, FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 34/37 exchange of SMS also prove that they used to love each other.
34. The burden to prove its case remains upon the prosecution. The prosecution is to stand on its own legs. In 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 on the accused.
35. Considering the materials on record, as discussed above, the possibility of false implication of the accused is not ruled out. No explicit reliance can be placed on the testimony of the prosecutrix to base conviction.
36. In the case of Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr., 2006 (10) SCC 92, the Supreme 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 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."
37. In 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 FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 35/37 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 prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination 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."
FIR No. : 114/13 PS : Lodhi Colony State Vs. Rajbir Singh Jakhar Page No. 36/37
38. 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 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."
39. In the light of what has been stated above, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I therefore, acquit the accused Rajbir Singh Jakhar of the offences punishable under section 376 and 506 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 20,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal.
40. File be consigned to the Record Room.
Announced in the open
court today i.e. 25.02.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 114/13
PS : Lodhi Colony
State Vs. Rajbir Singh Jakhar Page No. 37/37