Delhi District Court
State vs 1. Padam Kumar Savita on 27 March, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. 1190/2016
FIR No. 327/15
PS - Greater KailashI
Under Section 376 IPC
State Versus 1. Padam Kumar Savita
S/o Sh. Gyan Prasad Savita,
R/o Village Siddeshwar Nagar,
Gali No. 3, Morar Town, PS
Thatipur, Gwalior.
Date of Institution : 08.01.2016.
Judgment reserved for orders on : 21.02.2018.
Date of pronouncement : 27.03.2018.
J U D G M E N T
Brief facts of the case:
1.As per the prosecution case on 27.07.2015 complainant 'X' ( name with held to keep her identity confidential) came to the police station and gave her complaint that she is residing with her family consisting of four children and works in Kothies at Pampos area. On 04/05.07.2015 she went to B30, Pampos for cooking food where one male person resides. When she was cooking food in the kitchen that SC No. 1190/16 State Vs Padam Kumar Savita Page No. 1 of 22 person took her forcibly in the room and committed rape with her. At around 1011 AM when she told him that she will file a complaint against him to the police, he replied that "tu hi mere ghar aayi thi". She got scared and did not tell anyone and left the work. She felt that she should not kept mum therefore she came to police station to lodge the complaint. Victim/prosecutrix was sent to AIIMS Hospital along with Lady Ct. Rinka for her medical examination where the prosecutrix refused for her gynecological examination. Victim 'X' was medically counseled through NGO. Site plan was prepared at the instance of victim/prosecutrix 'X'. Thereafter, statement of prosecutrix under Section 164 Cr.P.C was got recorded by the police. Supplementary statement of prosecutrix was got recorded and statement of witnesses also recorded. Certified CDR copy of prosecutrix and accused was also recovered wherein it was discovered that mobile phone number 8527524130 is in the name of complainant and mobile phone number 7840036777 is in the name of accused and accused called complainant on 05.06.2015 in between 1012 and also sent SMS to her. Accused was granted anticipatory bail. Accused was formally arrested and he was got medically examined from AIIMS Hospital and the exhibits were taken into possession and deposited in the Malkhana. Enquiry was made from the owner Ms. Rita Darbari. Thereafter, the case under Section 376 IPC was registered and chargesheet was filed in the court.
SC No. 1190/16 State Vs Padam Kumar Savita Page No. 2 of 22 Charge:
2. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 08.02.2016, prima facie case was made out against the accused for the offence under Section 376 IPC. The charge was framed to which accused pleaded not guilty and claimed trial. Prosecution Evidence:
3. To substantiate its allegations against the accused, prosecution examined eleven witnesses in all.
Material Witnesses:
4. PW1 prosecutrix had deposed in the court that she is a widow lady having four children. She used to work as maid and used to prepare food in the house of accused Padam Kumar at H.No. B30, Pamposh Enclave, Greater Kailash, New Delhi, who used to live alone in the house. On 0405.07.2015 she went to the house of accused for preparing food. At about 1011 AM she was cooking food in the kitchen, accused dragged her in his room forcibly and committed sexual intercourse with her forcibly without her consent. On saying that she will make complaint against him with police he replied " tu hi mere ghar aye thi". She got scared being widow and as she was the only bread earner of his family consisting of four children, she did not inform to anyone. She became disturbed and could not concentrate in her house. On asking of her eldest daughter she told her everything SC No. 1190/16 State Vs Padam Kumar Savita Page No. 3 of 22 who took her to NGO from where she came to police station and lodged a report Ex.PW1/A. Police had taken her to AIIMS Hospital for her medical examination where she was medically examined vide Ex.PW1/B and she told the incident in brief to the examining doctor. She was taken to the spot by the police and site plan was prepared. On 29.07.2015 her statement was got recorded by the police at Saket Courts before the Magistrate. She has correctly identified her statement under Section 164 Cr.P.C Ex.PW1/C on record. Formal Witnesses:
5. PW3 Ms. Reeta Darbari had deposed in the court that he was the owner of the house where accused was staying on rent for about two years. She deposed that he was a yoga teacher. She did not know if any maid used to work in the tenanted premises of the accused and she has also not seen her going or coming from his premises and that accused has never told her about employing of maid by him.
6. PW4 L/Ct. Rinka who had deposed in the court that she had taken the prosecutrix to AIIMS Hospital for medical examination where prosecutrix refused for her internal examination. She collected the MLC No. 10154/16 from doctor which she handed over to IO/SI Manisha.
7. PW5 Ms. Manisha Kakkar Ld. MM had deposed that on 29.07.2015 she had recorded the statement of the prosecutrix and had proved on record Ex.PW5/A and the exhibits already exhibited as SC No. 1190/16 State Vs Padam Kumar Savita Page No. 4 of 22 Ex.PW1/C and Ex.PW4/A.
8. PW6 Ms. Sushma, Counsellor from DCW deposed that on 27.07.2015 she was called by the police at police station GKI and she gave counselling vide Ex.PW6/A to prosecutrix. Inadvertently she mentioned the date underneath her signature as 07.07.2015 in place of 27.07.2015.
9. PW7 Sh. Chander Shekhar, Nodal Officer from Bharti Airtel had brought the CDR of mobile phone number 8527524130 for the period from 01.06.2015 to 30.08.2015 Ex.PW7/A, customer application form of the said phone number Ex.PW7/B and the relevant Cell ID chart Ex.PW7/D and proved on record the certificate under Section 65B of the Indian Evidence Act Ex.PW7/C. He deposed that copy of CAF and certificate u/s65B of the Indian Evidence Act already placed on record provided by Sh. Surender Kumar and Nodal Officer of Bharti Airtel Ltd. and proved on record copy of CDR Ex.PW7/E, copy of CAF Ex.PW7/F, copy of certificate u/s65B of the Indian Evidence Act Ex.PW7/G and Cell ID Chart Ex. PW7/H and identified the signatures of Sh. Surender Kumar.
10. PW8 HC Manvir Singh had deposed that on 27.07.2015 he was working as Duty officer. SI Manisha gave a rukka for registration of FIR and accordingly he recorded the present FIR. Computer generated copy of the same is Ex.PW8/A. He also endorsed the rukka vide Ex.PW8/B and also gave certificate under Section 65B of the Indian Evidence Act Ex. PW8/C. He had handed over the copy of FIR and SC No. 1190/16 State Vs Padam Kumar Savita Page No. 5 of 22 rukka to SI Manisha.
11. PW9 Sh. Pawan Singh, Nodal Officer from IDEA Cellular Ltd. had brought the CDR of mobile phone number 7840036777 for the period from 01.06.2015 to 30.08.2015 Ex.PW9/A, customer application form of the said phone number Ex.PW9/B and proved on record the certificate under Section 65B of the Indian Evidence Act Ex.PW7/C.
12. PW11 W/SI Manisha is the Investigating Officer of the case. She had sent the prosecurix for her medical examination, made endorsement on the complaint of prosecutrix Ex.PW11/A and got the case registered vide Ex.PW8/B. She got the prosecutrix counselled from N/GO vide report Ex.PW6/A. She took the prosecutrix to B30, Pamposh Enclave and prepared the site plan Ex. PW11/B at her instance. She got recorded the statement of prosecutrix u/s164 Cr.P.C Ex.PW1/C on her application Ex.PW5/A. She formally arrested the accused vide arrest memo Ex.PW11/C and sent him for his medical examination and thereafter MLC and the exhibits in sealed condition along with sample seal were handed over to her which were seized vide memo Ex.PW11/D. He examined the owner of the house and also collected the CDR in respect of mobile of the prosecutrix and accused and thereafter filed the chargesheet. Medical Witnesses:
13. PW2 Dr. Shivani who deposed that she had examined the SC No. 1190/16 State Vs Padam Kumar Savita Page No. 6 of 22 accused who was brought by police to AIIMS Hospital for his medical examination qua his potency to perform sexual intercourse under normal circumstances. She deposed that she found nothing to suggest that he was incapable of performing sexual intercourse under normal circumstances. She has duly proved the MLC Ex.PW2/A. She deposed that she had taken blood sample of the accused in gauze, preserved and sealed it with the seal of department and handed over the same to the police with sample seal.
14. PW10 Dr. Bhawani Shekhar had appeared on behalf of the Dr. Seema Yadav. She deposed that prosecutrix was brought on 27.07.2015 by W/Ct. Rinka and the history of the incident has been recorded from point C to C. There was no fresh external injury. UPT was negative. She was not willing for her gynecological examination. Statement of Accused and Defence of Accused :
15. Statement of accused under Section 313 Cr.P.C was got recorded wherein he stated that he is innocent and all the witnesses have deposed falsely against him. He did not commit any offence. On 05.07.2015 the prosecutrix had come at his house for job but he refused. Accused had not brought any witness in his defence. Arguments of the prosecution:
16. It is argued by the Ld. Addl. PP for the State that from the consistent statement of the prosecutrix case stand proved. Prosecutrix has duly explained the delay in lodging of the FIR. She got scared.
SC No. 1190/16 State Vs Padam Kumar Savita Page No. 7 of 22 Accused had even threatened her. She refused for medical as medical examination was conducted after a long delay. The suggestion of the accused with regard to his defence are totally denied by the prosecutrix. It is stated that the accused has not given any suggestion that she was demanding salary of one month and when the accused refused, she falsely implicated him in this case. Hence, it is prayed that case of the prosecution stand proved from the statement of the prosecutrix as given to the police, to the Magistrate as well as in the court. No 'Whats App' messages etc. were put to the prosecutrix in the cross examination. Prosecutrix has stated that her salary was never stopped by the accused hence, the defence of the accused is shattered. Call Detail Record does not prove that her presence cannot be there at the place of incident. The witness of the accused does not know that she was working with the accused or not on the date of incident. It is argued by Ld. APP that there is no reason for false implication of the accused by the prosecutrix. Hence, it is prayed that accused be convicted.
Arguments of the Ld. Counsel for accused:
17. It is argued by the Ld. Counsel for accused that there is a delay of 23 days in lodging of the FIR. It is argued that prosecutrix has refused for her gynae examination. She herself did not give any precise date of incident and as such the accused could not exactly relate to the exact time and date with his presence. The NGO official SC No. 1190/16 State Vs Padam Kumar Savita Page No. 8 of 22 is not examined at whose instance the prosecutrix had lodged the complaint. The doctor who attended the prosecutrix in the hospital is also not examined. The telephonic call made by the prosecutrix on 13.07.2015 to the accused 78 times proves the defence of the accused that she was demanding money from him. Otherwise if she was raped by the accused, there was no occasion for her to talk to the accused on phone on 13.07.2015. She does not raise any hue and cry when she was raped. Her locations is away from the place of incident between 10 to 11 AM. Ex. PW7/B is the cell phone location chart of the prosecutrix which proved this fact. Her conduct post incident is not convincing. Her eldest daughter is also not made a witness in this case. Prosecutrix was speaking to the accused number of times through mobile and 'Whats App'. Landlady says that she was not told about the incident of rape by the prosecutrix nor she was aware that prosecutrix was working there. The accused has examined security guard through whom the prosecutrix got job with the accused but he was also not being told about the rape by the accused. Hence, it is prayed that the testimony of the prosecutrix is not convincing. Conclusion:
18. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence of rape by resorting to the provisions of section 375 read with section 376 IPC. Section 375 IPC provides as under: SC No. 1190/16 State Vs Padam Kumar Savita Page No. 9 of 22 "375. Rape. A man is said to commit "rape" if he (a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : First. against her will.
Secondly. Without her consent Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent. Explanation 1. For the purpose of this section, "vagina" shall also include labina majora.
SC No. 1190/16 State Vs Padam Kumar Savita Page No. 10 of 22 Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
19. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced upon a woman against her will. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Lett. 130b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials"
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the seven clauses in Section 375 IPC. SC No. 1190/16 State Vs Padam Kumar Savita Page No. 11 of 22
20. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended b y any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
21. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
22. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word ' consent' and 'submissions' as shown below: "(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either SC No. 1190/16 State Vs Padam Kumar Savita Page No. 12 of 22 clouded by fear or vitiated by duress, cannot be deemed to be " consent" as understood in law.
(2) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
(4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
23. The essence of rape is absence of consent. The consent means SC No. 1190/16 State Vs Padam Kumar Savita Page No. 13 of 22 intelligent and positive concurrence of 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 influence of fear or terror or false promise is not consent. If the physical relations are made with consent, that cannot be termed as rape.
24. To prove the case the most material witness is the prosecutrix. As per her testimony, she used to prepare food in the house of the accused who was living alone in the house and on 04/05.07.2015 at about 1011 AM when she was cooking food in the kitchen, the accused dragged her in his room and committed sexual intercourse with her forcibly without her consent and when she told the accused that she will make the complaint against him with the police, he replied that "tu hi mere ghar aye thi". As per her version she was widow, mother of the four children and was only bread earner in the family. She got scared and did not inform anybody but she became disturbed and could not concentrate in his house upon which her eldest daughter enquired as to what had happened with her. She told her everything who took her to the NGO namely 'Jagori' from where she was taken to the police station and the complaint was made on which the FIR was registered.
25. There is delay of around 23 days in lodging of FIR by the prosecutrix . As per her statement she got scared. Admittedly, she is quite a matured lady and is a mother of four children. She is having SC No. 1190/16 State Vs Padam Kumar Savita Page No. 14 of 22 previous acquaintance with the NGO official even prior to the incident. Hence, it is quite improbable that she would get scared because of the incident or would come to the court only when her eldest daughter, who is aged about 20 years, talked to NGO. It is also against the natural conduct that prosecutrix would not try to inform the landlady of the house where the accused was residing or even guard who had got him employed with the accused. The prosecutrix is a grown up lady and it was not expected that she would keep mum for 23 days and will not disclose the incident to anybody.
26. When the prosecutrix lodged the complaint on 27.07.2015 she was taken to AIIMS Hospital for her medical examination but she refused for her medical examination. She had not even handed over her clothes to the police which she was wearing at the time of incident. The presence of injury on the body of a victim is a vital factor to assess the factum of rape but as the prosecutrix refused for her medical examination and there is late reporting of the matter, the prosecution does not find any support from her medical evidence or forensic evidence.
27. As per the suggestion given by the accused to the prosecutrix the prosecutrix was demanding money from him and when he refused to give money, she threatened to make complaint against the accused in the police and the similar demand was made by her even on 13.07.2015 through phone. The prosecutrix has denied that she has called the accused on 13.07.2015 for 56 times. In this regard the SC No. 1190/16 State Vs Padam Kumar Savita Page No. 15 of 22 necessary CDR details of the prosecutrix and the accused are produced and proved by the prosecution through PW7 and PW9 i.e. Nodal Officers of Bharti Airtel Ltd and IDEA Cellular Ltd. On checking the CDR of the mobile phone of the prosecutrix produced on record by prosecution, various calls were found to be exchanged between the accused and the prosecutrix on 13.07.2015. As per the CDR's Ex.PW7/A & Ex.PW9/A the first call of around 87 Seconds was made by the prosecutrix to the accused followed by other calls between both of them. A rape victim will not call a person who has ravished her. If the prosecutrix was raped by the accused on 04/0507.2015, her conduct of making calls to the accused post incident and before lodging of FIR is not comprehensible. As per version she did not lodge the FIR immediately after the incident since she was scared. A scared person is not expected to make a phone call to the perpetrator of crime. This is not the natural conduct and makes the testimony of the prosecutrix doubtful.
28. The daughter of the prosecutrix is admittedly aged about 20 years whereas the prosecutrix is aged about 36 years as per her statement in the cross examination. Neither the NGO official nor the daughter of the prosecutrix is made witness in this case by the IO. As per the statement of the prosecutrix in the cross examination, she deposed that she knew the NGO official 67 months prior to the incident.
29. It is not the case of the prosecutrix that when she was raped, she SC No. 1190/16 State Vs Padam Kumar Savita Page No. 16 of 22 raised any noise or resisted the act. The landlady of the premises, PW3 Smt. Rita Darbari has deposed that accused was a tenant in the annexe block under her for two years and there were tenants in the rear portion of the premises where incident of rape had happened and there was tenant in the rear portion even in the month of July, 2015 also. If the prosecutrix would have raised alarm, other tenants would have heard the same. Even the prosecutrix had not gone to PW3 who used to remain at her house being the landlady of the premises. As per the statement of PW3, no one told her about the alleged incident of rape. Though as per statement of PW3, the accused was having independent entry for going to his premises but even then if the prosecutrix was raped and would have raised alarm, the tenant in the rear portion or PW3 landlady must have heard the same. As per the statement of the IO/SI Manisha, even the guard of the colony through whom she got job with the accused had stated to the IO that he does not know anything about rape.
30. The testimony of prosecutrix shows that she was not truthful to the court and tried to conceal various facts. She has even concealed her actual age from the court. In her testimony recorded in the court, she has given her age as 25 years whereas in her cross examination she has stated that she is 36 years of age and not 25 years. She even did not tell her mobile number in the court, though she was keeping the mobile phone with her even on the date of incident. As per the suggestion put by the accused to the prosecutrix in her cross SC No. 1190/16 State Vs Padam Kumar Savita Page No. 17 of 22 examination (though denied by her), when the accused refused to give money to the prosecutrix, she in connivance with a person who had mobile phone number 7042221630 attempted to trap the accused by sending 'Whats App' messages on his phone. So far as this mobile phone number 7042221630 is concerned, prosecutrix has stated that she does not know to whom this mobile phone number pertains nor she can say whether she made any call on this number or not. In this regard perusal of the call detail record of the prosecutrix shows that there were several exchange of calls between the phone of the prosecutrix and the said number mentioned by the accused. Though, accused has not filed any 'whats app' messages allegedly received by him from this mobile phone number but the denial of any acquaintance with this mobile phone number by the prosecutrix is falsified from the call detail record of the phone of prosecutrix Ex.PW7/A. Defence of the Accused:
31. The accused has taken the defence that the prosecutrix has worked for 45 days whereafter his brother advised the accused to remove her when he came from Lucknow. The accused stated that he was paying Rs. 100 per day but the prosecutrix started asking him to give full month salary and when he refused, she started giving him threats and in anger he told her to do whatever she like. Ld. APP has argued that no suggestion was put by the accused to the witness that SC No. 1190/16 State Vs Padam Kumar Savita Page No. 18 of 22 she was demanding one month salary nor any specific amount of extortion allegedly demanded by the witness is put to her nor the 'whats app' messages are produced by the accused and as such the defence of the accused is not believable. It is settled law that prosecution has to stand on his own legs and has to prove the case irrespective of the defence of the accused. Moreover, during cross examination the accused has put suggestion to the prosecutrix with regard to money demand by her and consequential threat by the prosecutrix to involve him in a case. The accused has also suggested to the prosecutrix that when accused refused to make the payment of money the prosecutrix in connivance with the person having mobile phone number 7042221630 attempted to trap him. As already observed, the prosecutrix has tried to conceal her acquaintance with the above said mobile number and is not truthful on that account.
32. The accused had produced one Jata Shankar Pandey, the guard in his defence but as per the statement of the IO the name of the said guard was Jai Shankar Pandey. Be that as it may, admittedly the prosecutrix never complained to the guard anything against the accused. He also stated that on 04/05.07.2015 from 9 to 12 Noon he did not see the prosecutrix.
33. Though it is settled law that conviction can be based on the sole testimony of the prosecutrix if it inspires confidence but the statement of the prosecutrix must be of sterling quality.
34. The court, while evaluating the facts of a case, is supposed to SC No. 1190/16 State Vs Padam Kumar Savita Page No. 19 of 22 form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable:
a) the witness's statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
35. It is for the court to consider in each case whether as a result of cross examination, the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to SC No. 1190/16 State Vs Padam Kumar Savita Page No. 20 of 22 rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
36. In Sada Shiv Ram Rao Hadbe Vs. State of Maharashtra and Anr., 2006 (10) SCC 92, Apex Court has observed :
"It is true that in 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, the case set up by the prosecutrix, the court shall not act on the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
37. In Raju Vs. State of Madhya Pradhesh, (2008) 15 SCC 133, the Supreme Court stated that the testimony of the victim of rape has to be tested as if she is an injured witness, but cannot be presumed to be gospel truth. The court observed : "It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim, but at the same time, a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a SC No. 1190/16 State Vs Padam Kumar Savita Page No. 21 of 22 large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailant, but there is no presumption of any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
38. In the light of above observations, the sole testimony of the prosecutrix without any corroborative evidence, medical or otherwise, does not prove the case of the prosecution beyond reasonable doubt against the accused. Giving benefit of doubt, the accused Padam Kumar Savita is acquitted of the charges framed against him.
39. In view of the Section 437A of Cr.P.C., accused is directed to furnish bail bond in a sum of Rs. 30,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any.
40. File be consigned to Record Room.
Announced in the open court today i.e. 27.03.2018 ( Renu Bhatnagar) ASJSpl. FTC / SED/Saket Courts New Delhi.
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