Delhi District Court
State vs . Narender on 17 February, 2017
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS JUDGE (SFTC), DWARKA COURTS, NEW DELHI. SC No. 441306/16 FIR No. 194/2016 U/s.376/328/506 IPC P.S. Baba Haridas Nagar State Vs. Narender S/o Sh. Ramesh Kumar R/o H No.231, Melwan Panna, VPO Jharoda Kalan, New Delhi. Date of assignment : 05.08.2016 Date of reserving judgment : 01.02.2017 Date of pronouncement : 17.02.2017 JUDGMENT : 1.
Accused was arrested by the Police of Police Station Baba Haridas Nagar (in short BHD), New Delhi and was challaned to the court for trial for commission of the offences punishable under Sections 376/328/506 IPC.
2. The case of the prosecution, in brief, is that on 17.6.2016 prosecutrix 'X' (real name withheld in order to conceal her identity), a married woman aged about 26 years, lodged a complaint with the police alleging therein that on 13.3.2016 at about 11.10 a.m accused, who was known to her for the last seven years, took her on his scooty bearing registration No. DL9SBB 1443 to a room in a hotel at Bahadurgarh, Haryana (name and address withheld). The accused after administering stupefying substance mixed in water committed SC No. 441306/16 (State vs. Narender) Page 1 of 16 rape upon her. She was also threatened of dire consequences if the incident of rape was disclosed to anybody.
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.PC on 18.6.2016. 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 376/328/506 IPC against accused was framed to which he pleaded not guilty and claimed trial. He was accordingly put to trial.
6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined ten witnesses in all. PW1 is the prosecutrix who has narrated the incident. PW2 Sh. Girish Chand Saxena is the Manager of the hotel at Bahadurgarh, Haryana (name withheld) who has deposed that only one customer namely Ashish Kumar had stayed in his hotel on 13.3.2016. PW3 Sh. Ashok Kumar is the owner of the said hotel who has corroborated the testimony of PW2. PW4 Smt. Lata @ Charu is the friend of accused and prosecutrix who has deposed that her marriage anniversary falls on 4th June and not on 13th March. PW5 SC No. 441306/16 (State vs. Narender) Page 2 of 16 Sh. Siddharth Malik, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded u/s 164 Cr.PC as Ex.PW1/A and his certificate as Ex.PW5/A. PW6 W HC Kaushalya has proved the FIR as Ex.PW6/A; endorsement on rukka as Ex.PW6/B and certificate u/s 65B of Indian Evidence Act as Ex.PW6/C. PW7 W Constable Roshni is a formal witness who took prosecutrix to DDU Hospital for her medical examination. PW8 Dinesh is the husband of the prosecutrix. PW9 Constable Jaiveer is a formal witness in whose presence DVR with hard disk of CCTV camera etc were seized vide memoEx.PW3/B and PW10 W SI Manoj Kumari is the IO of the case.
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 had given money to husband of the prosecutrix and when he demanded the same, the present false case was lodged by the prosecutrix in connivance with her husband. He has examined DW1 HC Jagbir Singh in his defence who has deposed that on 7.6.2016 he was posted as Head Constable in PS BHD Nagar. On that day one Smt. Sunita, mother of the accused, lodged a complaint with police against prosecutrix, her husband and Puneet which was received vide DD No. 30B dated 07.06.2016. He has proved the same as Ex. DW1/A. He has further deposed that on 13.06.2016 the matter between the parties was compromised vide Compromise DeedMark DW1/A. As per DW1, on the same day he prepared his report Ex. DW1/B and on 14.06.2016 the closure report SC No. 441306/16 (State vs. Narender) Page 3 of 16 was filed. During cross examination by Ld. Addl. PP, DW1 has admitted that document Mark DW1/A was not written in his presence and the same also does not bear the signature of complainantSmt. Sunita. He has denied that in collusion with the accused, a closure report was malafidely filed by him.
8. I have heard Ms. Satvinder Kaur, Ld. APP for the State and Sh. Mahipal Singh, Ld. Counsel for the accused. I have gone through the file.
9. Ld. Counsel for accused has contended that there is delay in lodging the FIR which has not been adequately explained by the prosecution. Secondly, Puneet was neither made an accused nor a witness in this case which shows the falsity of the prosecution case. Thirdly, PW2 the Hotel Manager has not supported the prosecution case. There is nothing on record that the accused and prosecutrix stayed in the said hotel on the day of alleged incident. Lastly, it is contended that there are contradictions and omissions in the testimonies of witnesses. According to Ld. Counsel, accused is liable to be acquitted. On the other hand, Ld. APP for State has contended that prosecution has proved its case against the accused beyond reasonable doubt.
10. PW1 is the prosecutrix who has deposed that accused Narender was known to her for the last seven years being her neighbour. In February, 2016 at about 8.00 a.m. when she was going for her job in a school at Najafgarh (name of the school withheld) where she was working as a sweeper, accused asked her to be his SC No. 441306/16 (State vs. Narender) Page 4 of 16 friend with her but she refused. After 23 days, accused called her on her phone and again reiterated his request for friendship. He further stated that he would commit suicide in case his request is not met whereupon the prosecutrix acceded to his request for friendship. She has further deposed that on 13.03.2016 at about 11.00 a.m. accused Narender made a call to her inviting her for the celebration of the marriage anniversary of their common friend Charu. When she reached near the house of Charu, accused met her. He took her to a hotel (name withheld) on his scooty. A room in the name of Puneet was booked in the said hotel. She went inside the room with accused Narender and Puneet. Puneet left after 1015 minutes. Accused offered her water consuming which she felt giddiness. Accused asked her to have some rest in the said hotel. Thereafter, accused committed rape on her for 56 times. She was unable to resist or save herself. Accused threatened to kill if the incident of rape was disclosed to anybody. He also stated that the Prosecutrix would be defamed as he was having video of the incident of rape with him. He also threatened to upload the video on internet. Accused dropped her at Kali Piau, Najafgarh. Due to fear she did not disclose the incident to anybody. She has further deposed that accused Narender also informed about the incident of rape to Puneet. When she contacted Puneet, he made her hear some video clip on his mobile phone. She has further deposed that she went to PS BHD Nagar in the month of April, 2016 but the matter was compromised. However, the accused again started harassing her by showing her video of the incident of rape on his SC No. 441306/16 (State vs. Narender) Page 5 of 16 mobile phone. She has further deposed that whenever she used to pass through the street, people used to treat her as a prostitute as she was defamed by the accused. As per PW1, when she could not bear the atrocities of the accused and being defamed by him in the society, she was left with no option except to lodge a complaint against him. She has proved her complaint to police as Ex. PW1/A; her statement u/s 164 Cr.PC as Ex. PW1/B; site plan as Ex. PW1/C; arrest memo of accused as Ex. PW1/D; scooty as Ex. P1; CD as Ex. P2 and transcript of the CD as Ex. P3.
11. During her cross examination, PW1 has deposed that she got married to Dinesh on 21st June. However she could not tell the year of her marriage. She also could not tell as to when she joined left her job in the school at Najafgarh. She has deposed that she was invited by Charu prior to 13.03.2016 on her marriage anniversary on 13.3.2016 at her house with the accused. She has denied the suggestion that she did not go to hotel on 13.03.2016 with the accused. She has also denied the suggestion that the matter was compromised in the police station as there was some money dispute between her husband and accused which was sorted out on that day. She has further denied that her husband had taken a loan of Rs. 20,000/ from accused which he was unable to pay. She has further denied that a false complaint was lodged against the accused at the behest of her husband.
12. PW2 Sh. Girish Chand Saxena is the Manager of the hotel. He has deposed that on 13.03.2016 only one customer namely SC No. 441306/16 (State vs. Narender) Page 6 of 16 Sh. Ashish Kumar had come to their hotel and he left on 14.03.2016. He has categorically stated that no other customer came to their hotel on that day. He has proved relevant entries in the register alongwith bill and relevant I.D. proof of the aforesaid customer as Ex. PW2/A (collectively). As PW2 did not support the prosecution, he was declared hostile by Ld. Addl. PP. However, despite cross examination, nothing incriminating has come in evidence against accused in the testimony of PW2.
13. PW3 Sh. Ashok Kumar is the owner of the hotel. He has corroborated the testimony of PW2. He has deposed that no person by the name of Puneet or Narender stayed in his hotel on 13.03.2016. He has further deposed that he handed over DVR with Hard Disk containing CCTV footage on 13.03.2016 to the IO which were seized vide memo Ex. PW3/B.
14. During his cross examination, he has deposed that he had never seen or heard persons by the names of Narender or Puneet visiting his hotel on 13.03.2016.
15. PW4 Smt. Lata @ Charu has deposed that she got married to Sudarshan @ Daksh on 04.06.2013. She has further deposed that one day in March, 2016 she alongwith her husband, accused Narender and prosecutrix had gone to Kalkaji Mandir. She has categorically deposed that her marriage falls on 04.06.2016 and not on 13.03.2016. She has proved certificate of registration of her marriage as Ex. PW4/A.
16. During her cross examination, she has deposed that when SC No. 441306/16 (State vs. Narender) Page 7 of 16 she went to Kalkaji temple, she noticed that accused and prosecutrix were close friends as if girl friend and boy friend. She has further deposed that Prosecutrix never made any complaint against accused to her. As per PW3, they went to Kalkaji temple around 15.03.2016.
17. PW8 Dinesh is the husband of the Prosecutrix. In his testimony before the court he has travelled beyond his statement u/s 161 Cr.PC. Even otherwise, he is not a witness to the incident. His testimony would be referred to at the appropriate place at the time of evaluation of evidence.
18. PW9 Ct. Jasveer has deposed that on 04.07.2016 he alongwith W/SI Manoj Kumari went to the hotel where PW2 produced the DVR and Hard Disk of CCTV camera which were seized vide Ex. PW3/B. He has proved the DVR with Hard Disk of the CCTV camera, adaptor and wiring of blue colour electricity supply box as Ex. P6 (collectively).
19. PW10 is the IO of the case who filed the charge sheet in the court after investigation.
20. During her cross examination, she has deposed that the husband of Charu was interrogated by her but his statement u/s 161 Cr.PC was not recorded. She has admitted that she did not record statement of any other staff of the hotel as PW2 (Manager of the Hotel) told her that accused with Prosecutrix had visited their Hotel on 13.03.2016 but no entry in this regard was made in the register. She has further deposed that the Prosecutrix or her husband did not disclose the names of any person residing in their locality who were SC No. 441306/16 (State vs. Narender) Page 8 of 16 defaming them. She has admitted that there is a permanent police picket of Delhi Police at NajafgarhBahadurgarh border. As per PW 10, inquiries were made from Puneet but his statement u/s 161 Cr.PC was not recorded. However, she has proved the written statement and interrogation of Puneet as Ex. PW10/D1 and Ex. PW10/D2 respectively. (Note : These documents were kept by IO in the police file but were taken on record at the time of her crossexamination). She has further admitted that prosecutrix has filed some complaints against her in this case after the release of the accused on bail. She has denied that the signatures of accused were obtained by her on blank papers which were later on converted into documents against him.
21. The FSL reports, both dated 19.10.2016, in respect of CCTV footage and mobile phone were tendered in evidence and the same were exhibited as Ex. P4 and P5 respectively. These reports are per se admissible u/s 293 Cr.PC. Ld. Counsel chose not to cross examine the FSL experts and, as such, the experts were not summoned for their crossexamination.
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 the version of the prosecutrix on its face value, it may look for corroboration.
23. Though not referred to or relied upon, in judgment - Ramdas v. State of Maharashtra, 2007 AIR (SC) 155, it has been held by the Apex Court as under :
SC No. 441306/16 (State vs. Narender) Page 9 of 16"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality.
24. xxx
25. In the instant case there are two eye witnesses who have been examined to prove the case of the prosecution. We have rejected outright the evidence of PW5. We have also critically scrutinised the evidence of the prosecutrix, PW2. She does not appear to us to be a witness of sterling quality on whose sole testimony a conviction can be sustained. She has tried to conceal facts from the court which were relevant by not deposing about the earlier first information report lodged by her, which is proved to have been recorded at the police station. She has deviated from the case narrated in the first information report solely with a view to avoid the burden of explaining for the earlier report made by her relating to a non cognizable offence. Her evidence on the question of delay in lodging the report is unsatisfactory and if her deposition is taken as it is, the inordinate delay in lodging the report remains unexplained. Considered in the light of an earlier report made by her in relation to a non cognizable offence, the second report lodged by her after a few days raises suspicion as to its truthfulness."
24. Though not referred to or relied upon, in judgment - Rajesh Patel v. State of Jharkhand, 2013 AIR (SC) 1497 it has been held by the Apex Court as under :
"9...Further, the High Court accepted the observation made by the learned trial Judge wherein the explanation given by the prosecutrix in her evidence about being terrorised to be killed by the appellant in case of reporting the matter to the police, is wholly untenable in law. The same is not only unnatural but also improbable. Therefore, the inordinate delay of 11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only makes the prosecution case improbable to accept but the reasons and observations made by the trial court as well as the High Court in the impugned judgments are SC No. 441306/16 (State vs. Narender) Page 10 of 16 wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the courts below in accepting delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in law."
25. The testimony of the prosecutrix does not inspire confidence for the following reasons :
(i) 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 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 principles 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. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified in the facts and circumstances of a given case. However, in the present case there is delay of more than three months in lodging the FIR. The delay has not been adequately explained by the prosecution.
(ii) Prosecutrix was medically examined on 18.6.2016 at DDU Hospital, New Delhi. Doctor has written on the MLC that no external SC No. 441306/16 (State vs. Narender) Page 11 of 16 injury was found on the person of the prosecutrix. There is no medical evidence to substantiate the version of the prosecutrix that she was raped by the accused.
(iii) The essential ingredient of Section 328 IPC is that the victim should be administered poison or any stupefying intoxicating or unwholesome drug or other thing. The forensic examination of the stomach wash in order to determine that the substance that administered was poison is, therefore, imperative for ascertaining the commission of the offence punishable u/s 328 IPC. Admittedly, no stomach wash of the prosecutrix was taken for forensic examination in the present case. The averment made by the prosecutrix cannot be said to be final to reach to the conclusion that the water administered was either poison or any stupefying intoxicating or unwholesome drug. Though not referred to or relied upon, for taking this view I am supported with the judgment Sanjay Singh v. State, Crl. Appeal No.636/2005, decided on 23.4.2008, by the High Court of Delhi speaking through Hon'ble Mr. Justice S. Murlidhar. As there is no medical evidence on record that the substance administered was either poison or stupefying intoxicating or unwholesome drug, no offence u/s 328 IPC can be said to be proved against the accused.
(iv) Puneet was neither made a witness nor an accused in this case though it has come in the evidence of PW10 W SI Manoj Kumari (IO) that Puneet was interrogated during the investigation of the case but his statement u/s 161 Cr.PC was not recorded. She has proved the statement of Puneet in his own handwriting as Ex.PW10/D1 and SC No. 441306/16 (State vs. Narender) Page 12 of 16 interrogation memo as Ex.PW10/D2 which were kept by her in the police file. These were taken on record. Puneet could have been a material witness to unearth the truth in this case. However, prosecution chose not to produce him in the witness box.
(v) The mother of the accused had lodged a complaint with the police against the prosecutrix on 7.6.2016 (Ex.DW1/A) but the matter was compromised on 13.6.2016 and the closure report was filed by the police on 14.6.2016.
(vi) PW1 (prosecutrix) has deposed that she narrated the entire incident to her husband and, thereafter, she went to PS BHD Nagar in the month of April 2016 but Ms. Manoj got the matter settled with the accused. There is no plausible explanation from the side of prosecution as to why the prosecutrix did not lodge the complaint against the accused in April 2016 itself when she narrated the incident to her husband. DocumentEx.PW8/F proves that the husband came to know about the incident on 15.4.2016. The FIR was lodged on 17.6.2016.
(vii) No video of the alleged incident was recovered from the mobile phone of the accused. The FSL reportEx.P5 as regards the audio clips does not support the prosecution case. As regards CCTV footage, no relevant data was found present vide FSL reportEx.P4.
(viii) The PW1 (prosecutrix) and her husband (PW8) have made improvements in their testimonies before the Court. PW8 has travelled much beyond his statement u/s 161 Cr.PC. He produced before the Court the confessional statementsEx.PW8/E and SC No. 441306/16 (State vs. Narender) Page 13 of 16 Ex.PW8/F. Ex.PW8/E does not bear any signature while Ex.PW8/F bears the signatures of accused Narender and one Puneet. Both these statements are in the hand of PW8. There is no valid explanation as to why these statements were got written by the husband of the prosecutrix when the accused could have written the same. These documents were not filed along with the chargesheet. They do not inspire confidence. They were produced by PW8 who is an interested witness. No independent witness was examined to prove the same.
(ix) PW2 has not supported the prosecution case. He has categorically deposed that no customer other than Sh. Ashish stayed in their hotel on 13.3.2016. Despite crossexamination by Ld. APP, nothing incriminating has come in evidence against the accused in the testimony of PW2. Thus, it belies the version of the prosecutrix that accused took her to a hotel at Bahadurgarh, Haryana.
(x) The prosecutrix had an ample opportunity to lodge complaint against the accused after the incident. The stand taken by the prosecutrix that she did not lodge the complaint against the accused as she was threatened does not inspire confidence.
(xi) Prosecutrix did not raise an alarm when allegedly she was being ravished in a hotel at Bahadurgarh. It has been admitted by PW10 that there was a permanent police picket at NajafgarhBahadurgarh Border.
26. On scruitinizing the versions narrated by the prosecutrix, it seems that the prosecutrix has not presented the true facts. The testimony of PW1 does not inspire confidence. The defence taken by SC No. 441306/16 (State vs. Narender) Page 14 of 16 the accused in his statement u/s 313 Cr.PC is plausible.
27. The defence taken by the accused has remained consistent throughout the trial. The burden to prove its case remains upon the prosecution. The prosecution is to stand on its own legs. In case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts on the accused.
28. The delay in lodging the FIR, the testimonies of witnesses and the associated circumstances leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. As the prosecution case would show, her testimony does not inspire confidence and the circumstantial evidence do not lend any support to the same. In the absence of both, this Court is of the view that accused is liable to be acquitted.
30. 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. Hence, the accused is acquitted. His personal bond is cancelled and surety is discharged. Documents, if any, be released to the surety. 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 SC No. 441306/16 (State vs. Narender) Page 15 of 16 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 17.02.2017. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
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