Delhi District Court
Addl. Sessions Judge06 vs Monu S/O Late Sh. Bharat on 28 April, 2018
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE06, WEST
TIS HAZARI COURTS, DELHI
State Case UID No.................................... 56514/16
New SC No. 62/18
Old SC No. 38/16
FIR No. 839/15
PS Anand Parbat
U/S: 376/506 IPC &
6 of POCSO Act
State
Versus
Monu S/o late Sh. Bharat
R/o CN719, Gali No. 10, Tali Wali Basti,
Anand Parbat, New Delhi
Date of institution : 04.02.2016
Judgment reserved on : 11.04.2018
Judgment delivered on : 28.04.2018
ORDER/JUDGMENT: Accused is acquitted for the offences punishable
under section 6 of POCSO Act or in alternative u/s 376
IPC and under section 506 IPC.
J U D G M E N T
1. Briefly stated the prosecution case is that one Ms. P, ( identity
withheld) lodged a complaint Ex. PW1/B raising allegations against the
accused Monu that on 18112015 in Night at about 2 AM when she went
for toilet out of her house, he dragged her in his room and raped her twice
and also threatened her to kill her brother, if she would tell the said
incidence to anyone.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 1
She further raised allegations that even on 24112015 at about 12
Night when she was sleeping, someone knocked the door of her house,
which she opened and found the accused Monu, who caught hold her
hand and tried to take her alone forcibly to his room and when she cried,
her father came there and the accused Monu had run away.
2. On the basis of such statement/complaint, an FIR No. 839/15, U/s
376/506 IPC and 4/6 of POCSO Act was registered on 04.12.2015 and the
matter was investigated by one IO SI Kiran Sethi.
On completion of the investigation, the chargesheet was filed against
the accused for the offences under Section 376/506 of the Indian Penal
Code, 1860 (IPC) and Sections 4/6 of the POCSO Act.
3. Vide order dated 16052016, the Charges were framed by the
Predecessor Court of Sh. Pawan Kumar Matto, Ld. ASJ01 West, Delhi, for
the offences punishable under section 6 of the POCSO Act & in
alternative, 376 IPC and secondly for the offence under section 506 IPC
thereby stating therein that on the intervening night of 17.11.2015 &
18.11.2015 at about 2 AM, when the prosecutrix was going to the toilet, the
accused had dragged the prosecutrix in his room and repeatedly
committed penetrative sexual assault upon her or in alternative raped her
and also threatened her to kill her brother with knife, thereby he had
committed the offences punishable u/s section 6 of POCSO Act or in
alternative u/s 376 IPC and secondly u/s 506 IPC, to which the accused
had pleaded not guilty and claimed trial.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 2
4. To prove the guilt of the accused, the prosecution has examined 2
witnesses:
a) The complainant/public witness:
• Ms. P, the prosecutrix/victim, PW1, who is the material public witness
produced by the prosecution to prove the allegations leveled against the
accused.
During her examination, the prosecutrix/victim has exhibited the death
certificate of her father Ex. PW1/A, her complaint/statement Ex. PW1/B, MLC
Ex. PW1/C, her statement recorded u/s 164 Cr.PC Ex. PW1/D, site plan Ex.
PW1/E.
b) Police Witnesses:
• W/ASI Kiran Sethi, PW2 who was the witness of investigation (IO) and she
had come to the witness box to prove the investigation.
She had exhibited the documents viz., version of the victim Ex. PW2/A, the
request of the IO for recording of the statement u/s 164 Cr.PC and for obtaining
the copy of the same, Ex. PW2/B & PW2/C, the seizure memo of blood sample
of the accused Ex. PW2/D.
c) Evidence admitted u/s 294 Cr.PC:
• The evidence of PWs, Dr. Gaurav Swami, Dr. Pooja Abeey, Dr. Parvesh
Mehra, Dr. Arvind Kumar, Ms. Sanggeta NGO, Dr. Yashi Rawat, Dr. Tanvi, Dr.
Shikha Garg, Dr. Mahesh, Ms. Swati Singh, Ld. MM, HC Rajender Kumar, DO,
HC Priyavart, DO, W/Ct. Pinki, Ct. Ajay Kumar, Ct. Ashok, Ct. Ramesh, HC Raj
Kumar MHCM and SI Jagrup Singh, Mr. Naresh Kumar Senior Scientific
Officer, Biology, FSL & the Principal of school of the prosecutrix, were admitted
u/s 294 on behalf of the accused, vide statement dated 23.08.2017 of Sh. R.R.
Jha, Ld. Legal Aid Counsel for the accused.
5. On concluding of the prosecution evidence, all the incriminating
circumstances were put to the accused under Section 313 Cr.PC., wherein
he refuted all the allegations leveled against him and had pleaded his
innocence and he took the plea that he had been falsely implicated in the
case as the parents of the prosecutrix were against their friendship and the
prosecutrix was deeply in love with him.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 3
6. Ld. Addl. PP for the State has submitted that the prosecutrix has
supported the prosecution case wholly, raising specific acts of the accused
and his role is specified and there appears no reasons for false implication
of the accused as nothing adverse could come on record to the contrary,
thereby proving the allegations of aggravated penetrative sexual assault,
and also of the criminal intimidation punishable under section 506 IPC
thus, the prosecution has successfully proved the case through the
complete chain of evidence and there appears no reasons to disbelieve
the prosecutrix.
7. Sh. R.R. Jha, Ld. Legal Aid Counsel for the accused has submitted
that accused Monu has been falsely implicated at the instance of the
parents of the prosecutrix as the accused Monu and the prosecutrix were
in friendship & in love with each other and the parents of the prosecutrix
were not happy with their friendship and by pressurizing the prosecutrix,
the accused has been falsely implicated in the present case and that is
why the prosecutrix was at variances in her versions given at different
places.
Also that the falsity of the allegations are clear from the versions
/testimony of the PW1, the prosecutrix as her testimony is full of major
contradictions regarding the date of occurrence & incidents as in her
complaint the prosecutrix stated that on 18112015 in Night at about 2
AM when she went for toilet out of her house, the accused Monu dragged
her in his room and raped her twice but in her testimony before the court
she has totally changed her version regarding the incident of 18112015
and she deposed that on 18112015, the accused knocked on the door of
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 4
her house and when she opened the door the accused caught hold her
hand, started pulling her out of her house and on coming of her father the
accused run away from her house.
8. Also that the MLC Ex. PX1 does not suggest any such act as stated by
the prosecutrix and no external injury marks were observed by the doctor
concerned nor anything has been mentioned regarding alleged penetration
that itself proves contrary that nothing wrong had happened with the girl
prosecutrix and the accused has been falsely implicated.
Further that FSL result does not support the allegations raised in the
prosecution story.
9. Further that there is a substantial delay in recording of the FIR PX6 as
the alleged incident is of the date of 18112015 and the prosecution has
not explained the delay satisfactorily in recording of the FIR on 04.12.2015
after 15 days, thus, it was submitted that the allegations are after thought
and false and the prosecution story was full of lies.
Thus, it was submitted that the case of the prosecution is within the
shadow of doubt, and was not proved beyond reasonable doubts, and the
accused is entitled for benefit of doubt.
10. I have given my thoughtful considerations to the rival submissions of
Ld. Addl. PP for the State and Sh. R.R. Jha, Ld. Legal Aid Counsel for
the accused and have perused the evidence available on record,
meticulously in the light of such contentions.
11. The prosecution, in order to establish its case for the offences under
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 5
section 506 IPC & 6 of POCSO Act, alleged against the accused
namely Monu, facing trial before this court, must establish the following
ingredients:
For the offence under section 506 IPC
i) that the accused threatened the prosecutrix,
ii) that such threat consisted of some injury to his person, reputation or property; or
to the person, reputation or property of some one in whom he was interested;
iii) that he did so with intent to cause alarm to that person; or to cause that person to
do any act which he was not legally bound to do, or omit to do any act which he was
legally entitled to do as a means of avoiding the execution of such threat.
Further for offences punishable under section 6 of POCSO Act
i) that the accused had committed aggravated penetrative sexual assault
upon the victim
12. What acts of the accused constitute penetrative sexual assault is
prescribed U/s 3 of the POCSO Act that reads as under :
3. Penetrative sexual assault : A person is said to commit "penetrative sexual
assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child
or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of the child or makes the child to do so with him or any other
person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the
vagina, urethra, anus or any part of body of the child or makes the child to do so with
him or any other person or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to
do so to such person or any other person.
13. Also that the penetrative sexual assault would be said as 'aggravated'
penetrative sexual assault if it falls within the categories described u/s 5 of
the Act the relevant extracts of the provision of Section 5 of the Act is
extracted below :
5. Aggravated penetrative sexual assault :
(a) ...........
......
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or ......
said to commit aggravated penetrative sexual assault.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 614. On careful perusal of the evidence on record, it is observed that the entire prosecution case was based solely on the testimony of Ms. P, the prosecutrix, examined as PW1, who was the sterling witness of the prosecution and the quality of her evidence must be very high to fetch a conviction against the accused on the basis of that sole testimony, in view of the observations made in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21 ' by the Hon'ble Supreme Court, wherein it was observed that, "... 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 cross examination of any length and howsoever 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.
...........
...........
Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it 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.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 7To 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."
15. On appreciation of evidence of PW1, the prosecutrix, it is observed that PW1, Ms. 'P', in her brief account of her version given in the court, the allegations of penetrative sexual assault were of the next day of 1811 2015 i.e. on 19112015 when according to her, at about 1:00 to 2:00AM, she had gone to public convenience toilet, located near the drain ( nala) and she was alone, accused came there and pulled her by her hands to his house and threatened her that he will kill her brother with knife if she would sought for help and raped her in his house and after that she returned to her house and told everything to her father who reported the matter to the police.
The relevant extract of her testimony as PW1 is extracted below:
On the next day, at about 1.002.00am, I was at home. I had gone out of my house at night to use the public convenience ( toilet) which are located near the drain (nala). I was alone accused Monu came there and pulled me from my hand inside his house and had threatened me that he will kill my brother with a knife if I shout for help. He raped me in his house ( Balatkar). By rape I mean that accused Monu had inserted his private parts in my private parts ( apni susu karne wali jagah meri susu karne wali jagah me dal di) After my rape by accused Monu in his house, I returned to my house I told everything to my father to report the matter to the police'.
16. It is observed that the date of birth as per her school record is 1508 2001 and she was examined on 23082017 in the court. Thus, the prosecutrix was of the age of 16 years at the time of examination in the court.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 817. It is observed that her testimony regarding the date of occurrence was absolutely different and at variance from her complaint Ex. PW1/B that was written in vernacular language Hindi and even the details of occurrence & allegations changed.
18. In her first statement/complaint dated 04122015, Ex.PW1/B, it is reported that, 'On 18112015 in Night at about 2 AM when I went for toilet out of my house immediately ( tabhi) the accused Monu dragged me in his room and raped me twice and threatened me to kill my younger brother with knife , if I would tell the said thing to anyone.
Whereas according to her testimony, 'On 18.11.2015, I was at home at night. It may be around midnight that I heard knocking on the door of my house. My parents were sleeping in one room while I along with my two brothers and one sister were sleeping in the second room. I thought that my father may have returned home and I went to open the door. I was mistaken that it was my father who was knocking on the door. Accused Monu was at the door of my house. He was living in my neighbour hood in a tenanted accommodation. He caught hold my hand and started pulling me out of my house. He did not say anything to me. In the meanwhile, my father came there and accused Monu run away from my house. I did not shout for help as my father had come there'.
19. On appreciation of the ocular evidence of the prosecutrix as PW1 when compared with the documentary evidence i.e. complaint Ex. PW1/B, it is observed that both the versions are at variance to each other on many counts.
20. According to the complaint the date of incident of alleged penetrative sexual assault was of 18112015 but according to her testimony as PW1, UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 9 it was next day of 18112015 i.e. 19112015. Also there is no scope of any confusion about the date because as per her testimony even on 18 112015 another incident of alleged sexual harassment had been detailed by her.
The relevant portion of her testimony as PW1 to that extent is extracted below:
'On 18.11.2015, I was at home at night. It may be around midnight that I heard knocking on the door of my house.
My parents were sleeping in one room while I along with my two brothers and one sister were sleeping in the second room. I thought that my father may have returned home and I went to open the door. I was mistaken that it was my father who was knocking on the door.
Accused Monu was at the door of my house. He was living in my neighbour hood in a tenanted accommodation. He caught hold my hand and started pulling me out of my house. He did not say anything to me. In the meanwhile, my father came there and accused Monu run away from my house. I did not shout for help as my father had come there'.
21. According to the testimony of PW1, on 18112015, the accused Monu knocked the door of her house when she was sleeping along with her two brothers and one sister and her parents were sleeping in another room on hearing 'knocking' of the door, she opened the door believing that 'her father had returned home' but it was accused Monu, who barged into her house in midnight and caught hold her hand and started pulling her out of her house and as her father came there, the accused Monu ran away.
In her testimony, at the same place, she had deposed that her parents ( meaning thereby her mother and father both) were sleeping in one room and she along with her two brothers and one sister were sleeping in UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 10 another room and at the same time, she had deposed that she opened the door believing that her father might have returned back, as if she knew that he had gone somewhere.
This version of the PW1 appears some how strange as to why the prosecutrix deposed that in the midnight she opened the door believing that 'her father might have returned home' whereas she herself had deposed that her father and mother ( her parents) were sleeping in another room. Thus, if one portion of her testimony is 'relied' upon that her parents (including her father) were sleeping in another room, the other portion of her version is 'belied' that she opened the door on the pretext that her father had returned home. This shakes her version shadowing doubts for her opening of the door. Also, this is hard to believe as to why a girl of 14 years will open the door in the midnight, when her two brothers and another sister were already sleeping in the same room and there is nothing to show on record that she was the eldest of all other siblings and also it appears against the norms of reasonable prudence that in a room where the two brothers are sleeping with two sisters, a girl of 14 years will get up and opened the door when knocked in midnight by 'someone'.
22. Thus, on giving conjoint reading to the entire testimony of PW1, the prosecutrix, in its entirety, there appears no confusion of date of occurrence of alleged penetrative sexual assault that allegedly it was of 19 112015, i.e. the next day of the date of 18112015 when already an alleged incident of 18.11.2015 regarding knocking of door & barging of the accused in the house of the prosecutrix had allegedly been taken place and her father had intervened during such occurrence and the accused UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 11 had run away on seeing the father of the prosecutrix.
23. The State through Ld. Addl. PP had declared the prosecutrix hostile and sought permission to crossexamine the witness to clarify the date of occurrence and by putting leading question & it was clarified by PW1 during her crossexamination that the first incident was of 18112015 and the second incident was of 24112015, meaning thereby is that there were two separate incidents and there was a gap of 6 days. According to such depositions during her crossexamination, it was deposed by the prosecutrix that the first occurrence (18112015) was of 'knocking of the door' & barging of the accused into the house of the prosecutrix and that the accused had tried to pull her by holding her hands out of her house and the second incident was of 24112015 when the occurrence of alleged penetrative sexual assault upon the prosecutrix was committed by the accused.
24. To the contrary, as per the version of the prosecutrix given in her statement recorded Ex. PW1/D recorded u/s 164 Cr.PC, the date of first incident of 18112015 was of the alleged penetrative sexual assault by the accused and the date of second incident i.e. 24112015 was of knocking of the door by the accused and barging into her house. The relevant extract of translated version of her statement recorded u/s 164 Cr.PC is given below:
'On 24.11.2015 we all four brother and sister were sleeping in a room and parents were sleeping in another room. At 12 Night someone had knocked the door, I opened the door and found the accused Monu and he tried to drag me towards his house and then her father woke up and after seeing my father he had run away.UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 12
On 18.11.2015 at about 1:002:00 night, when she had gone for toilet, the accused Monu had dragged her in his house and raped her'.
Therefore, it is observed that the prosecutrix has changed her version from beginning when she gave her complaint, then to her statement u/s 164 Cr.PC, again she changed her version in her testimony, again in her crossexamination as to when & what happened with her.
25. Thus, this is difficult to rely on the testimony of PW1 on the aspects of allegations raised against the accused, firstly for sexual harassment on 18 112015 and secondly of penetrative sexual assault on next day i.e. 1911 2015 allegedly committed by the accused upon the prosecutrix. Also during her crossexamination by the State, Ld. Add. PP put the case of the prosecution but she changed the dates of occurrence & the manner, to take the case of the prosecution under the shadow of doubts when it was deposed that the two incidences of alleged sexual assault respectively were not of consecutive dates but were having a gap of 6 days between the first and second incidence occurred on 18112015 and 24112015 respectively and even the sequence was changed.
Thus, she did not stand firm on her version given in testimony in her chiefinexamination or in her complaint Ex. PW1/B. On her being hostile, she was crossexamined by the Ld. Addl. PP for State and she has deposed that, The relevant extracts of the testimony of PW1 is extracted below:
(At this stage the witness is shown the complaint Ex. PW1/B again and after she has read the same, she is crossexamined) After reading the complaint Ex. PW1/B again, I say that I had made the same statement to the police. It is correct that there is a gap of UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 13 six days between the first and second incidents as the first incident occurred on 18112015 and the second incident occurred on 24 112015. I had forgotten about the same.
The first incident occurred when the accused had come to my house and had tried to pull me out of my house by pulling me from my hand. The second incident occurred when the accused had forcibly taken me to his house and raped me. The statement given by me to the police Ex. PW1/B is wrong regarding the sequence of events. Whatever I have told before the court today is correct. I cannot give any specific reason why I have told a wrong sequence of events, to the police and the lady judge earlier'.
Thus, according to her version in chief in examination, the two incidents occurred on 'consecutive' days of 18 & 19 November, 2015 whereas in crossexamination she deposed that there was a gap of 6 days in between two occurrences.
As per her complaint, the alleged occurrence of rape was of 1811 2015, but as per her testimony it was next day of 18112015 i.e. on 1911 2015, when the alleged incident of rape had occurred. As per her cross examination, the date of alleged rape was of 24112015.
26. Now come to the 'allegations' raised about the alleged sexual assault, regarding the 'manner' of alleged occurrences. In the complaint Ex. PW1/B of the prosecutrix she has stated, 'On 18112015 in Night at about 2 AM when I went for toilet out of my house immediately (tabhi) the accused Monu dragged me in his room and raped me twice and threatened me to kill my younger brother with knife , if I would tell the said thing to anyone.
27. According to her complaint Ex. PW1/B, on 18112015 at about 2 AM, she came out of the house for going to toilet ( a public conveniences) situated near a drain (nala), just thereafter (tabhi) the accused dragged her ( Khhinch Liya) and raped her 'twice' and then threatened her for 'not to UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 14 tell the incident to anyone'.
28. Whereas in her testimony as PW1, she has deposed that on 1811 2015 in the midnight accused 'knocked the door' and when she opened the door he barged into her house and tried to drag her from her house by holding her hand but ran away when her father came and intervened and that, 'On the next day ( i.e. on 19112015), at about 1.002.00am, I was at home. I had gone out of my house at night to use the public convenience ( toilet) which are located near the drain (nala). I was alone accused Monu came there and pulled me from my hand inside his house and hand threatened me that he will kill my brother with a knife if I shout for help. He raped me in his house ( Balatkar)'
29. Thus, it is observed that the prosecutrix deposed in the court that on next day i.e. on 19112015 she had gone to the toilet (public convenience) situated near drain/nala and from there (at toilet) when she was alone, the accused pulled/dragged her by holding her hand to his house and had threatened her' if she will shout (during the way) whereas as per complaint Ex. PW1/B, when she was coming out of her house, immediately she was pushed into his room by the accused. ( the room of the accused was in the close neighbourhood of the prosecutrix).
30. Also as per her complaint, on 18112015 when she came out of her house for going for toilet, just thereafter ( tabhi) she was 'pushed' in the house of the accused whereas as per her testimony, she was 'pulled/dragged' by the accused all the way from the place of public convenience toilet situated near drain (nala) to his house and she was taken to his house and during the way she was threatened not to shout for UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 15 help else her brother to be killed.
Thus, even 'the manner' in which she was taken to the place of occurrence, there are absolute inconsistencies. These inconsistencies were 'major' because the public convenience toilet was at a distance from their house and the distance matters when she deposed that she was threatened for not shouting for help but in her complaint she does not whisper anything regarding threatening before she was taken to the alleged place of occurrence rather she had reported to police that she was taken in his house adjacent to her house just after she left her house. Further according to the prosecutrix she had gone alone on the odd hours of 1:002:00 AM in the midnight for public convenience toilet located near the drain/nala when and she had a family comprises of her parents, two brothers and one sister and it is beyond imagination & against the rule of reasonable prudence that a girl of the age of 14 years would be allowed to go to the toilet alone in midnight at a distance in a public convenience toilet situated near drain/nala.
31. On appreciation of ocular & documentary evidence of the prosecutrix, it is observed that the prosecutrix was not firm as to exactly what had happened on the intervening night of 18th & 19th November, 2015 because as per her complaint, the room of the accused was just adjacent to the room of the prosecutrix where she was sleeping with her other siblings including her two brothers and according to her complaint, the 'moment' she came out of her house, just thereafter (tabhi), accused pushed her in his room on 18112015 whereas as per her testimony on 18112015 at the same time in the midnight the accused knocked her door and when she opened the door, the accused tried to hold her hand and started UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 16 pulling her to his house and as her father came, the accused ran away and that she did not shout because her father had already come for help. Whereas, according to her complaint her father came only when she shouted and on seeing her father, the accused had run away.
32. As per her complaint Ex. PW1/B, accused committed rape upon her 'twice', whereas as per her testimony she did not depose regarding commission of alleged assault 'twice'.
33. Thus, there were major discrepancies in the form of contradictions, inconsistencies, omissions, exaggerations and embellishments not only regarding the factum of 'date' of occurrence, but also about 'the manner' she was allegedly taken to the place of occurrence, the type of 'threats' given to her during/after the occurrence and even about 'number' of times of alleged sexual assault committed upon her.
34. Further even on the aspects of threats, allegedly extended to the prosecutrix by the accused, as per her testimony, the accused threatened her on 19112015 'on the way' during the period when she was pulled by her hand from the place of public toilet to his house & threatened not to shout for help.
It is worth to note that the site plan Ex. PW1/E does not mention the places of public toilet & the place of occurrence and the distance between the two places.
Regarding pulling of her from the public toilet to his house, the complainant is absolutely 'silent' ( omissions) in her complaint Ex. PW1/B and such facts were absolute 'improvements' in her testimony as these UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 17 facts were brought 'first time' in her testimony to bring a story absolutely new, as according to her complaint she was just pushed in his room by the accused just after when she came out of her room for going to toilet ( as per her complaint the room of the accused is just 'adjacent' to the room of the accused).
These facts are material as according to her testimony, the accused extended threats 'for not to shout for help' when she was dragged by accused from toilet to his house.
35. It is observed that as her complaint Ex. PW1/B, the 'threats' were extended to her by the accused, after the alleged rape, for 'cautioning her not to tell the incident to anybody' but according to her testimony she was threatened for not shouting for help during the way when she was pulled/dragged by the accused from the place of public toilet situated near nala/drain to his house i.e. the alleged place of occurrence. Thus, even the version of prosecutrix in her testimony is 'doubtful' on the aspects of threatening given to her during the way from toilet to the house of the accused as according to her complaint, when she came out of her house for going to toilet, just thereafter (tabhi) she was 'pushed in' by the accused in his house that was adjacent to her room. Therefore, the factum of threats as testified by the prosecutrix in her testimony were at variance with major discrepancies & shake her version to rely either of the two versions, one in her complaint i.e. in documentary evidence Ex.PW1/B another her testimony as PW1.
36. Thus, on appreciation of evidence of the prosecutrix examined as PW1, who was the sterling witness of the prosecutrix and on whose sole UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 18 testimony the prosecution has heavily relied to establish its case, it is observed that there were large number of discrepancies, material in nature in the testimony of the prosecutrix, in the form of contradictions, inconsistencies, omissions, exaggerations and embellishments that shakes her version to lack credence to rely upon the testimony of the prosecutrix, in view of the observations made in the case titled as Krishan Kumar Malik Vs. State of Haryana, (2011) 7 Supreme Court Cases 130, wherein the Hon'ble Supreme Court has held that, 'When there are various serious contradiction in her statements and action from which it can safely be concluded that she was certainly not telling the truth'.
Also the criminal courts were guided in such authority that on appreciation of evidence, in cases of infirmities/lapses/omissions, in a rape case in the testimony of prosecutrix which were not minor contradiction, it is the duty of the court in such case that, 'Role of courts in such cases is to see whether evidence available before court is enough and cogent to prove accused guilty.
37. Also the prosecutrix, in her testimony as PW1 has brought certain facts first time, at variance to her version given to police and in the case titled as State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440, it has been held by the Hon'ble Apex Court that, 'In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded'.
38. Further there were material & major discrepancies in the form of omissions & improvements in the evidence of PW1 & in case titled as Sunil UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 19 Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal Appeal No. 891/2004, the Hon'ble Supreme Court has observed that, 'Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence'.
39. Further in case titled as Raj Kumar Vs. State, 1997 (2) CCC 292 DB Delhi , the Hon'ble Supreme Court has held that:
'Where the PW has been absolutely inconsistent and has been changing his (her) stand from time to time, he (she herein) can not be regarded as reliable and trustworthy witness of the occurrence'.
40. In a recent case titled as Sunil Kumar Vs. State, 2015 IIIAD (Delhi) 568 Crl.A 1213/2013 201, it was held by the Hon'ble High Court of Delhi that, 'if the evidence of a sole witness is not of such unimpeachable character on whose testimony alone conviction can not be passed without corroboration'.
41. In this case when the testimony of prosecutrix on whose the prosecution is heavily relied and was a sterling witness, was not of the quality as observed in case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21 and that it is the duty of the court to see whether the evidence available before the court is enough & cogent to prove the accused guilty as observed in case titled as Krishan Kumar Malik Vs. State of Haryana, (2011) 7 Supreme Court Cases 130, and that if the evidence of a sole witness is not of such unimpeachable character, then court has to look into the corroborative evidence to support the version of the prosecutrix regarding the allegations, as observed in case titled as Sunil Kumar Vs. State, 2015 IIIAD (Delhi) 568 Crl.A 1213/2013 201.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 2042. Unfortunately, in this case the medical record i.e. MLC Ex. PW1/C does not show any injury to support the case of the prosecutrix of alleged penetrative sexual assault.
Also the FSL result, to prove the scientific evidence Ex. PX13 does not support the case of penetrative sexual assault as no semen could be detected on the exhibits of the prosecutrix or of the accused and even the further DNA examination was not conducted due to such report.
43. Unfortunately, IO has not prepared the site plan properly to indicate the place of occurrence. The site plan Ex. PW1/E is just rough sketch showing certain area with the marks of arrows but in such site plan there is nothing mentioned as to what does these arrows indicate and what was the place of occurrence. Even such site plan does not mention the place of toilet ( public convenience) where according to the prosecutrix she had gone and from where she was dragged by the accused to take her to his house as alleged, nor it indicates any place of occurrence that is the room wherein the alleged incidence had taken place.
The site plan mentions 'A' but it is not clarified as to what 'A' indicates. It appears that IO has drawn some painting without connecting it to the present case except mentioning the details of the case at the top of the paper.
Even the IO was examined as PW2, has not clarified the discrepancies regarding the date or places of two alleged occurrences.
44. Even on the aspects of intimations given regarding occurrence of alleged sexual assault by the prosecutrix to her father, the two versions of the prosecutrix are at great variances with material discrepancies that UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 21 matters as there was a delay of about 15 days in reporting of the matter to the police.
As per her testimony when she returned to her house after the alleged rape, she 'told everything' to her father who reported the matter to the police.
The relevant extracts of her testimony are brought below:
'After my rape by the accused Monu in his house, I returned to my house. I told everything to my father who reported the matter to the police.'
45. But according to the date of FIR, the matter was reported to police only on 04122015, thus, even there are 'contradictions' in her versions given in her complaint to her testimony on the aspects of 'threatenings' given to her because as per her version given to the police after the occurrence of alleged rape she did not inform anyone for quiet a long time for 6 days as she was threatened by the accused for not reporting/informing the incident to anyone, otherwise he will kill her brother.
To the contrary, to her complaint Ex. PW1/B, she deposed in the court as PW1 that she had told everything to her father just after reaching home to her house after occurrence and her father had reported the matter to the police.
Thus, her testimony was in 'contradiction' with the documentary evidence i.e. complaint Ex. PW1/B & FIR Ex. PX1 on record. As per documentary evidence, the matter was reported to the police on 0412 2015 only i.e. after about 15 days of the alleged date of occurrence on 18 112015, if the complaint Ex. PW1/B is believed, after 14 days, if her testimonyinchief is believed on calculating it from 19112015, the alleged UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 22 date of occurrence or after 10 days if her version given during her cross examination is given, according to which the date of alleged occurrence was 24112015. But there is no explanation even to that effect as to why the matter was reported so late that is also after a period of more than 10 days, even if it is assumed that the alleged occurrence was of 24112015. Thus, even the delay in reporting of the matter and registration of the FIR remained unexplained and also in contradiction to the sole testimony of the prosecutrix who had deposed as PW1 that the matter was reported to the police by her father just after alleged occurrence as she had told everything to her father on returning home, after the occurrence who reported the matter to the police.
46. The Hon'ble High Court of Delhi, in case titled as Rajinder Prasad & Anr. Vs State decided by the Hon'ble High Court of Delhi in CRL.A. NO. 8/2000 on 19 052014 has observed that, 'In criminal trial, one of the cardinal principles is registration of earliest information as FIR'.
In that authority, the reliance was placed on the observations of the Honble Supreme Court in case titled as Lalita Kumari vs. Govt. Of Uttar Pradesh and Ors., cited as (2014) 2 SCC1, wherein it was observed that, 'The object sought to be achieved by registering the earliest information as FIR is inter alia twofold:- One, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment, etc., later. In case there is delay in lodging the FIR, the Court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 23 to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming to the police or before the Court, the Court always views the allegations with suspicion and looks for satisfactory explanation.
If no such explanation is found, the delay is treated as fatal to the prosecution case'.
47. Thus, the prosecution has miserably failed to explain the delay in registration of FIR and delay in reporting of the matter for a substantial period of 10 to 15 days from the date of the alleged occurrences. The prosecutrix has failed to establish as to when the alleged occurrence of sexual assault had taken place. This delay becomes material and fatal to the prosecution case because as per the prosecution story there were two incidences allegedly occurred with the prosecutrix, one was of 18112015 and the other was of 19112015 or of 24112015, the exact date not established but date of FIR was 04122015 and as per rukka Ex. PX7, the matter was reported on the same day on 04122015 & there was no delay in registration of the case on reporting the matter.
Thus, delay in registration of the FIR in this case, remain unexplained and is fatal to the prosecution case. This is a great dent in the prosecution story that makes it an after thought story of the complainant, particularly when the exact date of alleged occurrence is not established on record as the sole testimony of PW1 did not inspire confidence & lacks credence.
48. According to the prosecutrix's testimony, she has informed her father everything just after alleged occurrence allegedly committed on 1911 UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 24 2015 and her father had reported the matter same day i.e. on 19112015 to the police that makes a new story that the alleged date of occurrence was of 19112015 but the FIR was of 04122015, that creates further doubts on the prosecution story even regarding the threats given to the prosecutrix after alleged sexual assault, due to which she did not tell the incident to anyone but these facts are not testified in the testimony of PW1 according to which she informed her father just after the alleged occurrence.
Thus, the story of prosecutrix is absolutely under the shadow of doubts even regarding the alleged occurrence.
49. The State raised the contentions that there is presumption raised u/s 29 of POCSO Act in favour of the prosecution for assumption of the commission of offence, in case the accused is prosecuted for the alleged offences under this Act. But the 'assumptions' cannot take place of 'proof' and are basically in the form of assumptions raised u/s 304A and 304B IPC within law to be read with assumption of section 113B Evidence Act but for the assumptions, it is a settled principle of law as settled by Hon'ble Apex Court in catena of judgments that despite assumption raised in favour of the prosecution, in law the prosecution cannot escape its duty of proving the 'guilt' of the accused beyond reasonable doubts as in criminal law, it cannot be the preponderance of probability by which the guilt of the accused is to be proved, but it is system of 'standard proof' for proving the case of the prosecution beyond reasonable doubts for holding accused guilty for a criminal offence and if there is any doubt in the prosecution story, then the doubt has to go to the favour of the accused and he is entitled for such benefit of doubt, if the prosecution story is doubtful.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 2550. In this case, the case of the prosecution remained in the realm of suspicion but did not prove the case beyond reasonable doubt about the alleged occurrence of sexual assault and it is a well settled principle of law as settled in Sunil Kumar Vs. State, 2015 IIIAD (Delhi) 568 Crl.A 1213/2013 201 that, 'suspicion howsoever grave cannot take place of proof'.
51. Also in case titled as Mousam Singh Roy & Ors. Vs. State of West Bengal, (2003) 12 SCC 377, it was observed by the Hon'ble Apex Court that, 'It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused'.
52. Further, as per the settled legal propositions of law as settled, in the case titled as Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
53. The above settled principles of law when applied to the facts of instant case, it is observed that on the face of the evidence came on record, due to the material contradictions, inconsistencies, omissions, exaggerations UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 26 and embellishments and noncorroborative evidence available on record to prove the guilt of the accused for either the allegations for sexual assault or its repetition or of threats allegedly extended as the sole testimony of the sterling witness, the prosecutrix is not meeting the test of quality as observed in Rai Sandeep's case & was containing material contradictions to her previous versions that shakes her version to lack its credence, in view of case titled as Sait @ Krishnakumar's case and due to serious contradictions regarding date of occurrence & manner of commission of alleged occurrence, it can safely be concluded that the prosecutrix was certainly not telling the truth, in view of observations made in Krishan Kumar Malik's case and as sole testimony of PW1 was not unimpeachable & was without any corroboration to prove the allegations, conviction cannot be passed, as per observation made in Sunil Kumar's case. Thus, it is difficult to conclude that the prosecution has discharged its onus of proving everything essential to establish charges leveled against the accused. Thus, the prosecution story is under the shadow of doubts and the prosecution case could not be proved beyond reasonable doubt either for the alleged sexual assault or for extending threats to the prosecutrix by the accused, and the accused is entitled for benefit of doubt.
54. Thus, a benefit of doubt is given to the accused namely Monu on the basis of abovenoted principles, in the abovenoted facts & circumstances of the case.
55. Consequently, the accused namely Monu is acquitted of the offences punishable under section 6 of POCSO Act or in alternative u/s 376 IPC and under section 506 IPC.
UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 2756. The copy of this judgment be also sent to the DCP concerned who is the incharge of investigation within his territorial limits for perusal and for further directions and actions regarding the irregularities of investigation in this case. Digitally signed by ARCHANA ARCHANA SINHA SINHA Date: 2018.05.08 15:37:27 +0530 Announced in the open Court (Dr. Archana Sinha) th on this 28 day of April 2018 Addl. Sessions Judge06,West Tis Hazari Courts, Delhi 28.04.2018 UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 28 UID No. 56514/16 FIR No. 839/15 PS. Anand Parbat State Vs. Monu Page No. 29