Delhi District Court
State vs . Manoj Saini on 30 March, 2017
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS JUDGE (SFTC), DWARKA COURTS, NEW DELHI. SC No. 441398/2016 FIR No. 298/2016 U/s. 376 IPC P.S. Palam Village. State Vs. Manoj Saini S/o Sh. Mahender Saini R/o C397, Ramphal Chowk, Palam Extn. Sector7, Dwarka, New Delhi. Date of Institution : 26.9.2016 Date of reserving judgment : 21.3.2017 Date of pronouncement : 30.3.2017 JUDGMENT : 1.
Accused was arrested by the Police of Police Station Palam Village, New Delhi and was challaned to the court for trial for commission of the offences punishable under Sections 376 IPC.
2. The case of the prosecution, in brief, is that in the year 2008 prosecutrix 'X' (real name withheld in order to conceal her identity) was a student of ninth standard while accused was in tenth standard in the same school. They became friends. In the year 2012, prosecutrix took admission in a college. One day the accused told the prosecutrix that he loved her. The prosecutrix had a liking for the accused and, therefore, she agreed to marry him. After few days, the accused took the prosecutrix to the house of one of his friends and State vs. Manoj Saini. Page 1 of 13 FIR No.298/2016 PS Palam Village.
insisted on physical relations. The prosecutrix refused for the same but the accused forcibly established physical relations with her. The accused continued to establish physical relations with the prosecutrix in the year 2013 on the pretext of marriage. It is further alleged that in the year 2014, the prosecutrix insisted for marriage but the accused again refused on the pretext that his elder sister was yet to be married. After the marriage of the elder sister of the accused, the prosecutrix again pressurized the accused to marry her but he avoided the same. It is further the case of the prosecution that on 8.7.2016 and 21.7.2016, the accused refused to marry the prosecutrix. On the aforesaid complaint dated 26.7.2016 of the prosecutrix, the present FIR was registered on 26.7.2016 for commission of offence punishable u/s 376 IPC.
3. On the complaint of the prosecutrix, FIR was registered and the matter was investigated by the police. During investigation, statement of the prosecutrix was got recorded u/s.164 Cr.P. Accused was arrested. The statements of the witnesses were recorded. The prosecutrix as well as accused were got medically examined. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court.
4. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions.
5. Charge u/s 376 IPC against accused was framed to which he pleaded not guilty and claimed trial. He was accordingly put to State vs. Manoj Saini. Page 2 of 13 FIR No.298/2016 PS Palam Village.
trial.
6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined nine witnesses in all. PW1 is the prosecutrix who has narrated the incident. PW2 Ravinder Saini and PW3 Gaurav have not supported the prosecution case. PW4 Beero Devi is the mother of the prosecutrix. PW5 Mrs. Saroj is the landlady of the house where prosecutrix and the accused resided as tenants. PW6 Narender Saini has proved Whatsapp messages and audio clips as Ex.PW6/A. PW7 Sh. Siddharth Malik, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded u/s.164 Cr.PC as Ex.PW1/B and his certificate as Ex.PW7/A. PW8 Pawan Singh has proved the customer application form of the prosecutrix as Ex.PW8/A; photocopy of Voter ICard of the prosecutrix as Ex.PW8/B; call detail record of the mobile phone of the prosecutrix as Ex.PW8/C; customer application form of Ravinder Saini as Ex.PW8/D; copy of his driving licence as Ex.PW8/E; call detail record of his mobile phone as Ex.PW8/F and certificate u/s.65B of the Indian Evidence Act as Ex.PW8/G. PW8 Inspector Meena Yadav is the IO of this case who filed chargesheet in the court after completing the investigation.
7. Statement of accused was recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against him. Accused pleaded that he has been falsely implicated in this case by the prosecutrix as she wanted to extort money from him.
8. I have heard Ms. Satwinder Kaur, Ld. APP for the State State vs. Manoj Saini. Page 3 of 13 FIR No.298/2016 PS Palam Village.
and Sh. Jai Singh Yadav, Ld. Counsel for the accused. Ld. Counsel for the accused has contended that the prosecutrix has made several improvements and contradictions in her testimony before the court. According to him, accused is liable to be acquitted in this case. On the other hand, Ld. APP has contended that prosecution has proved its case against the accused beyond reasonable doubt.
9. The material witness in this case is PW1 on whose testimony prosecution case rests. PW1 has deposed that accused was known to her since 2008 as they were in the same school. They became friends. Thereafter, she took admission in B.A. Course through correspondence. However, they continued to talk to each other regularly on mobile phones. She has further deposed that in 2012 accused proposed to marry her which she accepted. One day accused took her to the house of his friend namely Gaurav at Palam, New Delhi and committed rape upon her. Thereafter, they continued meeting each other and on several occasions accused took her to the house of his friend and committed rape upon her which continued till 2013. She has further deposed that she completed her graduation in 2014 and requested the accused to marry her but the accused avoided on one pretext or the other. In 2015 accused committed rape upon her on the pretext of marriage. In March, 2016 they took a house on rent at Mahavir Enclave, New Delhi (address withheld) and where accused used to commit rape upon her. She has further deposed that on 08.7.2016 accused committed rape upon her in the afternoon. He made a call to her on said date at about 12 midnight and told her that he State vs. Manoj Saini. Page 4 of 13 FIR No.298/2016 PS Palam Village.
would not marry her. He also threatened her of dire consequences. She tried to call her but his phone was switched off. She has proved her complaint to the police as Ex.PW1/A; statement u/s.164 Cr.PC as Ex.PW1/B; site plans as Ex.PW1/C & Ex.PW1/D; seizure memo regarding Whatsapp messages, photograph and other recordings as Ex.PW1/E; memory card as Ex.PW1/F and printouts of Whatsapp messages etc. as Ex.PW1/G.
10. During her cross examination, she has admitted that she did not mention the name of Gaurav either in her statement u/s.164 Cr.PC or in her complaintEx.PW1/A. She has also admitted that neither in complaintEx.PW1/A nor in statementEx.PW1/B, it is mentioned that his friend was present in the house on the ground floor. She was confronted with his complaintEx.PW1/A and statement Ex.PW1/B wherein the incident of forcible sexual intercourse on 08.7.2016 in the afternoon in the house at Mahavir Enclave, New Delhi (address withheld) is not mentioned. She has denied that Ms. Banna resided in the same house at Mahavir Enclave, New Delhi (address withheld) on rent. PW1 was taken through the Whatsapp conversationEx.PW1/G and has admitted that accused was not paying the rent of the said room and for said reason he had told accused if rent is not paid by him, the room would be given to Suresh. After going through the Whatsapp messages, she has further admitted that she had asked accused to pay half of the rent which the accused had assured to give on the condition that Suresh would not reside there. She has admitted that mobile no. 96544xxxxx (number withheld) was State vs. Manoj Saini. Page 5 of 13 FIR No.298/2016 PS Palam Village.
in the name of her friend Neeraj. She has admitted that her mobile phone from which Whatsapp chats etc. were taken was not seized by the IO. She has admitted that the IO had not asked the IMEI number of her mobile phone make Lenovo and no seizure memo of the pen drive was prepared by the IO. She has admitted that she got the complaintEx.PW1/A typed from some computer operator at District Courts, Dwarka after consulting a lawyer.
11. PW2 Ravinder Saini has denied that he had given SIM card bearing no.99909xxxxx (number withheld) to anyone including the accused for using the same. He has not supported the prosecution case. This witness was declared hostile by the prosecution.
12. PW3 Gaurav has deposed that the prosecutrix was the friend of accused Manoj. He has not supported the prosecution case. This witness was declared hostile by the prosecution.
13. PW4 Beero Devi is the mother of the prosecutrix. She is not the eye witness to the alleged incidents of rape and criminal intimidation. However, she has corroborated the prosecutrix on other aspects.
14. PW5 Ms. Saroj had given house at Mahavir Enclave, New Delhi (address withheld) to prosecutrix and accused on 23.3.2016 on rent. As per PW5, accused and the prosecutrix resided in the said house for about five months and she got it vacated when she came to know about the registration of the present case. During her cross examination, she has denied that she deposed falsely at the behest of the prosecutrix.
State vs. Manoj Saini. Page 6 of 13FIR No.298/2016 PS Palam Village.
15. PW6 Narender Singh Saini has deposed that he was running a Cyber Cafe in the name of 'Cyber Zone'. He had taken out the printouts of Whatsapp messages and audio clips from the mobile phone brought by one girl. He has proved the documents in this regard as Ex.PW6/A. During his cross examination, he had admitted that in documentEx.PW6/A, the make and model of the mobile phone are not mentioned.
16. PW9 Inspector Meena Yadav is the IO of the case who filed the chargesheet in the court after investigation. During her cross examination, she has admitted that no call at no.100 was made by the prosecutrix or her family members with regard to the present case. She has further admitted that she has not mentioned the IMEI number of the mobile phone of the prosecutrix which was containing the Whatsapp messages, recording etc. in the seizure memoEx.PW1/E. She has further admitted that there is reference of one Ms. Banna in Whatsapp chats Ex.PW1/G but she neither interrogated her nor cited her as a witness in this case. She has further admitted that she did not record the statements of the neighbours where the accused and prosecuttrix resided in the rented house of Ms. Saroj. She has also admitted that in CD1 (received from FSL), there is no conversation showing any promise of marriage by accused to the prosecutrix and it only contained formal conversation between the two. It was also admitted by her that no voice samples of the accused/prosecutrix were taken and Neeraj was not cited as a witness in this case. She has denied the suggestion that she did not carry out the investigation fairly State vs. Manoj Saini. Page 7 of 13 FIR No.298/2016 PS Palam Village.
and properly.
17. I have gone through the file. The FIR in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is well settled proposition of law that a mere delay itself cannot be a ground to disbelieve the entire case of the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given case. Though not referred to or relied upon, in case of Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principle for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.
18. IO has admitted that no call at No.100 was made by the prosecutrix or her family members with regard to the present case. A typed complaint was lodged with the police by the prosecutrix on 26.07.2016. No complaint was lodged by the prosecutrix immediately after the alleged incidents though she had ample opportunity to lodge the same against the accused. From the testimony of PW1, it appears that she voluntarily stayed with the accused for five months in the house rented to her by PW5 Smt. Saroj. Thus, there is inordinate delay in lodging the FIR which has not been adequately explained.
19. No specific dates and time are mentioned by the State vs. Manoj Saini. Page 8 of 13 FIR No.298/2016 PS Palam Village.
prosecutrix in her complaintEx.PW1/A as to when the accused committed rape upon her. As regard the incident dated 08.7.2016, it is not mentioned by the prosecutrix in her said complaint that the accused committed rape upon her on that day. However, in her testimony before the court the prosecutrix has deposed that the accused raped her on 08.07.2016. The prosecutrix has made material contradictions and improvements in her testimony before the Court. During her crossexamination she has admitted that she did not mention the name of Gaurav either in her statement u/s.164 Cr.PC or in her complaintEx.PW1/A. It is further admitted by her that neither in her complaintEx.PW1/A nor in her statementEx.PW1/B, it is mentioned that accused's friend was present on the ground floor of the house. She was also confronted with her statement Ex.PW1/B wherein incident of rape on 08.07.2016 at Mahavir Enclave, New Delhi (address withheld) is not mentioned.
20. The independent witness PW3 Gaurav has not supported the prosecution case. He was declared hostile and was allowed to be cross examined by Ld. APP. However, nothing incriminating has come out in the evidence against the accused. When the prosecutrix was taken to hospital for her medical examination, no fresh external injury was found on her person. The medical evidence to corroborate the version of the prosecutrix is zero. It was admitted by the IO during her cross examination that a reference of Ms. Banna was found in the Whatsapp chats Ex.PW1/G. However, said Banna was neither interrogated nor cited as a witness in this case. Neighbours were not State vs. Manoj Saini. Page 9 of 13 FIR No.298/2016 PS Palam Village.
interrogated by the IO where the prosecutrix and accused stayed in a rented accommodation at Mahavir Enclave, New Delhi. The prosecutrix was using mobile phone no. 96544xxxxx (number withheld) which was in the name of her friend Neeraj. The said Neeraj was not cited as a witness in this case. The mobile phone from which Whatsapp chats etc. were taken out was not seized by the IO. The prosecutrix herself gave the printouts of Whatsapp messages etc. to the IO. It was admitted by the IO that in the CD1 (received from FSL), there is no conversation showing any promise of marriage by accused to the prosecutrix. All these circumstances create a doubt in the story of the prosecution.
21. Though not referred to or relied upon, in judgment Jayanti Rani Panda v. State of W.B., 1984 Crl. Law Journal 1535 it has been held that if a grown up girl has consented to sexual intercourse with a person who held out false promise to marry her, it would not amount to consenting under any misconception of fact under Section 90 IPC and sexual intercourse by the man under these circumstance would not be an offence of rape as defined in Section 375 IPC. Though not referred to or relied upon, similar is the view taken by our High Court of Delhi speaking through Hon'ble Mr. Justice Vipin Sanghi in a recent judgment titled as State v. Anupam Bhardwaj, Criminal Revision P. No. 4/2017, decided on 3.1.2017.
22. It is the settled law that conviction in rape cases can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case the Court has reasons not to accept State vs. Manoj Saini. Page 10 of 13 FIR No.298/2016 PS Palam Village.
the version of the prosecutrix on its face value, it may look for corroboration.
23. Though not referred to or relied upon, in judgment Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr., 2006 (10) SCC 92, the Apex Court while reiterating that in a rape case, the accused could be 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 acepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
24. Though not referred to or relied upon, in judgment Rai Sandeep @ Deepu v. State of NCT of Delhi, (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. It held: "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a State vs. Manoj Saini. Page 11 of 13 FIR No.298/2016 PS Palam Village.
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 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."
25. Though not referred to or relied upon, in judgment Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, State vs. Manoj Saini. Page 12 of 13 FIR No.298/2016 PS Palam Village.
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."
26. Considering the facts and circumstances of this case, I am of the opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, the accused is acquitted. His personal bond is cancelled and surety is discharged. Documents, if any, be released to the surety/Counsel. In terms of Section 437(A) Cr.P.C., accused is directed to furnish personal bond in the sum of Rs.25,000/ with one surety in the like amount for a period of six months for his appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Announced in open Court (PRAVEEN KUMAR) today i.e. on 30.3.2017. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
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