Delhi District Court
State vs Accused on 23 March, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI SC NO.96/10 Date of Institution :10.12.2009 FIR No.218/08 Date of Argument :21.03.2012 PS Mandawali Date of Order :23.03.2012 U/S 376 IPC State Versus Accused Khalil Ahmad S/o Sh. Sagir Ahmad R/o B-27, Joshi Colony, Mandawali, Delhi. JUDGMENT
The facts in brief of the prosecution case are that in the intervening night of 10th & 11th May, 2008 at about 1:30 a.m. at B-27, Joshi Colony, Badi Masjid Wali Gali, Mandawali, Delhi, accused Khalil Ahmad committed rape upon prosecutrix Gulista against her consent and he also threatened her that in case she disclosed the incident to anybody, she would be killed. A complaint dated 31.05.2008 in that regard was filed before SHO PS Mandawali on 02.06.2008 and on the basis of which FIR No. 218 dated 03.06.2008 at PS Mandawali Fazalpur u/s 376 IPC was recorded against accused. Prosecutrix Gulistan was got medically examined in LBS Hospital on 03.06.2008. The IO took into possession the articles which were handed over by doctor vide seizure memo dated SC No. 96/10 State Vs. Khalil Ahmad Page 1 of 19 03.06.2008. IO also prepared site plan on the same day. An application for recording of statement of prosecutrix u/s 164 of the Code of Criminal Procedure, here in after referred to as the Code, was filed before the concerned Metropolitan Magistrate and that application was marked to Link M.M. but request was declined on the ground that FIR was registered on the basis of complaint of prosecutrix. On 10.08.2009 accused was arrested. His arrest memo was prepared. He was interrogated and his disclosure statement was recorded on the same day. Accused Khalil Ahmad was also got medically examined in LBS hospital, Khichripur, Delhi on 12.08.2009. The seizure memo regarding taking into possession of blood and semen was also prepared. After recording of statements of witnesses and on completion of investigation, police filed charge sheet against accused for his trial for the offence punishable U/s 376 IPC.
2. On appearance, Ld. M.M. supplied copies of documents to accused and thereafter, committed the case to the court of sessions and case was assigned to this court.
3. Vide order dated 19.01.2010 my Ld. Predecessor was of the view that there was a prima-facie SC No. 96/10 State Vs. Khalil Ahmad Page 2 of 19 case against accused for framing of charge against him for the offence punishable u/s 376/506 IPC. Therefore, the charge against the accused for the said offences was framed and read over to him. Accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined Dr. V.K. Singh Specialist Forensic Medicine as PW1; Smt. Rajni Bharti Lady Constable as PW2; Dr. R.N. Dass, CMO as PW3; HC Bane Singh as PW4; Prosecutrix Gulista as PW5; SI Khayali Ram as PW6; Inspector Rajni as PW7; HC Jitender Singh as PW8; ASI Virender Singh as PW9; Inspector Alka Azad as PW10; Sh. Abdul Sattar as PW11; Sh. Naeem S/o Ahsan as PW12; Dr. Kavita Gupta, CMO as PW13; and Ct. Somvir Singh as PW14.
5. After closing of prosecution evidence statement of accused u/s 313 Cr. P.C. was recorded. All the material and incriminating evidence was put to him. Accused denied the correctness of prosecution evidence. Accused admitted that prosecutrix was the wife of Iqbal, his brother in law. He also admitted that mother in law of prosecutrix, her three brothers in law (Devar), children, wife of one brother in law were residing in H. No. B-27, Joshi Colony, Mandawali on 10.05.2008. He either denied the remaining SC No. 96/10 State Vs. Khalil Ahmad Page 3 of 19 evidence or expressed his ignorance about the same and pleaded that a false case was registered against him. PWs deposed against him as there was a quarrel between the accused and PW Naveen and prosecutrix deposed against accused at the instance of Naveen. It was also pleaded that police registered a false case and made out a concocted story against accused.
6. In support of his defence accused examined Smt. Afsari Begum as DW1; Smt. Rumana as DW2; Sh. Chand as DW3; Sh. Bilal Ahmad as DW4; Sh. Mohd. Umar as DW5; Sh. Rahis as DW6; and Sh. Iqbal husband of prosecutrix as DW7.
7. After closing of evidence of both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and lengthy arguments addressed by Ld. Defence Counsel for the accused.
8. It has been argued on behalf of Ld. Defence Counsel that testimony of prosecutrix is not reliable as it was inconsistent.
9. On the other hand it has been argued on behalf of Ld. Additional Public Prosecutor that statement of SC No. 96/10 State Vs. Khalil Ahmad Page 4 of 19 prosecutrix is reliable and trustworthy and conviction of accused can be based on her sole testimony.
10. My attention goes to cases Pardeep @ Sonu v. State, 2011 [2] JCC 1031. The Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
11. In case of Balia alias Balaram Behera and another v. State of Orissa, 1994 CRI. L.J. 1907, it was held by Orissa High Court that:
"It is well settled that the conviction can be maintained even on the sole testimony of the prosecutrix if believed to be true being wholly reliable and in such a case corroboration is not sought for. Corroboration becomes necessary when such evidence is neither wholly reliable nor wholly unreliable. It is in such case, "the court has to circumspect and (sic) look for corroboration in material particulars by reliable testimony, direct or circumstantial." (refer decision AIR 1957 SC 614: (1957 Cri LJ 1000), Vadivelu Thevar v. State of Madras).*** So far as the victim in the rape case is concerned, generally speaking she is not an accomplice. She is the SC No. 96/10 State Vs. Khalil Ahmad Page 5 of 19 victim of outrage. In such cases corroboration is not essential if her testimony is believed for securing a conviction. But the court normally looks for corroboration of her testimony to satisfy its conscience that she is telling the truth.*** It is well settled in law that in case of rape and similar offences against females, the fact that the prosecutrix made a complaint soon after the outrage confirms her testimony so as to destroy the fact of consent. This is considered as a corroboration to her evidence in Court. But care must be taken not to consider all previous statements corroborative statements. The circumstance under which it was made the motive and all other facts must be carefully scruitinised in each particular case. The witness may have had sufficient motive for making false assertions. She may have done so with a distinct object of creating evidence. In such cases corroboration of such previous statements would be of varying character dependent upon circumstances of such case and a person may equally and persistently adhere to falsehood once uttered. In the present case, P.W. 1 had a motive to false implicate the appellants."
[Emphasis supplied]
12. In case of Ramcharan v. The State of M.P., IX-1986(3) Crimes 165, the Madhya Pradesh High Court observed that:
"In a rape case, the oral testimony of the prosecutrix particularly when she is a married and grown up woman must be scrutinized with abundant caution and care to ensure that it is not concocted or embellished to any extent.***"
[Emphasis supplied]
13. On careful scrutinizing the evidence and material on record and on applying the principles of law SC No. 96/10 State Vs. Khalil Ahmad Page 6 of 19 laid down in cases Pardeep @ Sonu v. State, (supra), Balia alias Balaram Behera and another v. State of Orissa, (supra), and Ramcharan v. The State of M.P., (supra), I am of the view that testimony of prosecutrix is not fully reliable and trustworthy. There are embellishments and contradictions in her testimonies. Therefore, corroboration of his testimony is necessary. I noticed embellishments and contradictions on the following points:
Period of stay of prosecutrix in her matrimonial house prior to the occurrence
14. Prosecutrix PW5 in Ex.PW5/A mentioned that she had been residing in H.No.B-27, Joshi Colony, Badi Masjid Wali Gali, Mandawali, Delhi. In her cross examination, she stated that she did not remember the time when she had come to her matrimonial home on 04.05.2008. Her father PW11 deposed that he had visited matrimonial home of her daughter in Delhi for about 7-8 days prior to the occurrence of the present case because there was some matrimonial dispute between her daughter and her inlaws. Naeem, Babu, Imran and Allauddin were also with him as there was matrimonial dispute of Gulista with her inlaws. Thus, the evidence of her stay at her matrimonial home before the date of occurrence is doubtful because prosecutrix deposed that she came to her matrimonial home on 04.05.2008 i.e. six days prior to SC No. 96/10 State Vs. Khalil Ahmad Page 7 of 19 incident whereas her father disclosed that she had been there and they visited her matrimonial home seven/eight days prior to the incident.
Position of clothes
15. Prosecutrix PW5 in her examination-in-chief deposed that accused committed wrong act with her after removing her kameej and salwar. In cross-examination she changed her version and stated that accused did not remove her kurta i.e. kameej. While putting knife on the neck of prosecutrix by one hand and shutting her mouth by another hand, it was not feasible for accused to remove her clothes and commit rape as stated by the prosecutrix. This creates doubt in truthfulness of prosecution case.
Disclosing of Fact of Rape to Father
16. Prosecutrix PW5 deposed that on arrival at Meerut she narrated about the incident to her mother and sister Raeesa. Her mother, after 7-8 days informed about the incident to her father. Father of prosecutrix PW11 deposed that her daughter told him that accused Khalil committed rape upon her in the intervening night of 10/11.05.2008. Thus both the PWs made contradictory statements.
SC No. 96/10 State Vs. Khalil Ahmad Page 8 of 1917. In view of these material contradictions, I am of the view that arguments of Ld. Defence Counsel that statement of prosecutrix is not reliable and trustworthy, is convincing.
18. On scrutinizing and evaluating the testimonies of Prosecutrix PW5 and other witnesses, I come to the conclusion that prosecution has failed to prove its case against the accused beyond any suspicion and reasonable shadow of doubt. The reasons which support my conclusion are firstly, that testimonies of prosecutrix, relevant portions of which have already been discussed here in above, is neither consistent nor it has been supported by other prosecution witnesses.
19. Secondly, there are material contradictions in the testimonies of prosecution witnesses. In view of these material contradictions, the prosecution case become doubtful and accordingly, the accused has become entitled to get benefit of doubt. The principles of law laid down in case Labh Singh v. State of M.P., IX-1986(3) Crimes 176 also support this decision wherein, the accused was acquitted for the offence punishable u/s 376 IPC on the ground that there were material contradictions in the prosecution case which were causing doubt on the SC No. 96/10 State Vs. Khalil Ahmad Page 9 of 19 prosecution story.
20. Thirdly, as discussed here in above, the fact of her presence at the place of occurrence has not been proved beyond any reasonable doubt. That has also created doubt in the genuineness of the prosecution case.
21. Fourthly, testimony of prosecutrix has not been supported by any medical evidence. Admittedly, the alleged rape was committed in the intervening night of 10 & 11.05.2008. The matter was reported to the police on 02.06.2008 and prosecutrix was medically examined on 03.06.2008. There is no corroboration of commission of rape on the prosecutrix by medical or scientific evidence.
22. My decision finds support by a case pf Lachhman and another v. State, 1973 CRI. L.J. 1658. The Himachal Pradesh High Court held that:
"It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a SC No. 96/10 State Vs. Khalil Ahmad Page 10 of 19 struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged o have been committed; and in all cases importance is attached to the subsequent conduct of the complainant."
[Emphasis supplied]
23. My decision also finds support by a case Chidda Ram v. State, VIII-1992(2) Crimes 1142. It was held by Delhi High Court that:
"In the absence of medical report of vaginal and cervical swabs it cannot be said that the petitioner committed sexual intercourse with the prosecutrix on the night of 28th May, 1975. Even otherwise the story given by the prosecutrix after being handed over by the police to her mother does not inspire confidence nor any credence can be attached to the same. Her version vary from stage to stage and from point to point. Therefore, no much reliance can be placed on the testimony of the prosecutrix particularly when there is no corroboration for the same."
24. My decision also gets support by a case Sakariya v. State of M.P., 1991 CRI.L.J. 1925. The M.P. High Court set aside the conviction and sentence awarded by Trial Court on the grounds inter alia that the Chemical Examiner's repot was negative so far as seminal stains and presence of spermatozoa are concerned, nothing of the sort, was detected on chemical examination.
25. My decision also gets support by a case State of Orissa and etc. v. Nrusingha Charan Barik, 1990 CRI.L.J. 1676. The Orissa High Court acquitted the accused for the SC No. 96/10 State Vs. Khalil Ahmad Page 11 of 19 offence of rape observing inter alia that doctor was not categorical in his opinion that deceased was raped before being killed.
26 My decision also finds support by a case Madho Ram and another v. The State of U.P., AIR 1973 SC 469. It was held by Apex Court that:
"As a rule of prudence, however, it has been emphasised that courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated."
[Emphasis supplied]
27. The principles of law laid down in case Sanya alias Sanyasi Challan Seth v. State of Orissa, 1993 CRI. L.J. 2784, relied on by counsel for accused also support this decision. It was observed by Orissa High Court that:
"In the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction.*** As has been held in many cases all that is required is that, there must be some circumstance which should not support the version of the victim lady by way of corroboration."
[Emphasis supplied]
28. Fifthly, although in case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 AIR SC 753, it was held that rarely a girl or woman in India will make false allegations of sexual assault, yet present case come in SC No. 96/10 State Vs. Khalil Ahmad Page 12 of 19 exceptional cases. She has, in the present case, strong motive to falsely implicate accused because there had been matrimonial dispute between her and her in laws. The principles of law laid down in a case Pradeep @ Sonu v. State (Govt. of NCT of Delhi), 2011 [2] JCC 1031 relied on by Ld. Defence Counsel further supports this decision, wherein Delhi High Court observed that:
"41. In the case of Radhu (supra), the Supreme Court had held that the false charges of rape are not uncommon and in some cases parents do persuade gullible or obedient daughter to make false charge of rape either to take revenge or extort money or to get rid of financial liability. The Supreme Court had cautioned against false cases."
29. Sixthly, the place of incident is first floor of a house consisting of ground floor, first floor and second floor. Every floor has been occupied by other member of her inlaws. She was also having two children with her at the time of occurrence. The entire incident took place within ten minutes in total darkness as admitted by prosecutrix. Nobody else realised happening of the alleged occurrence. Neither she raised hue and cry nor children awoke or wept. This has further created the doubt in the genuineness of the prosecution case. The arguments of Ld. Defence Counsel that prosecutrix herself admitted that there was darkness in the room is convincing in this regard. The principles of law laid down in a case Satish SC No. 96/10 State Vs. Khalil Ahmad Page 13 of 19 Kumar v. State (Delhi)(DB), 1995(3) C.C. Cases 252 (HC) relied on by Ld. Defence Counsel support this decision, wherein Delhi High Court observed that:
"28.***This witness also admitted that there was darkness at the place of occurrence as there was no street light available. If that is so, it is not explained how this witness could have even identified the assailant and how he could note the colour of the clothes worn by the appellant."
[Emphasis supplied]
30. The principles of law laid down in a case Shashi Chaudhary v. Ram Kumar & Anr., 2011 [1] JCC 520 relied on by defence counsel support this decision, wherein Delhi High Court observed that:
"The conduct of the petitioner in the given facts and circumstance when tested on the anvil of ordinary reaction of a normal person, cannot withstand scrutiny. It appears to be more a case of the petitioner seeking to involve the respondent No.1/accused in the offence under Sections 376/506 IPC only to pressurize him in the civil litigation initiated by her, in respect of the tenanted premises, of which respondent No.1/accused is the landlord."
[Emphasis supplied]
31. Seventhly, the principles of law laid down in case a case State v. Raje Ram & Ors., 2011 (2) C.C. Cases (HC) 198, relied on by Ld. Defence Counsel also provides benefit to the accused. It was held by High Court of Delhi that:
"12. Even if two views are possible and one is taken by the Trial Court, the High Court has no power to replace the view of the Trial Court with its own view."SC No. 96/10 State Vs. Khalil Ahmad Page 14 of 19
32. Eighthly, although prosecution has proved disclosure statements of accused as EX.PW7/C, yet no recovery of knife could be made on the basis of disclosure statements which could have been admissible in evidence u/s 27 of the Indian Evidence Act. Therefore, disclosure statement is hit by Section 25 of the Indian Evidence Act and is not admissible in evidence.
33. Ninethly, the investigating officer has failed to join and examine not only independent person in the investigation of present case for corroboration of the prosecution case but also she has failed to join most relevant witnesses i.e. mother in law and sister in law of prosecutrix to whom she disclosed the fact of alleged rape soon after its occurrence and mother and sister to whom she disclosed the fact of rape on arrival at Meerut. In this way the prosecution has withheld the most relevant witnesses. Therefore, an adverse presumption under section 114 (g) of the Indian Evidence Act is drawn in favour of the accused and against the prosecution that testimonies of these witnesses were not favourable to the prosecution. Conversely, the accused has examined as much as six witnesses to prove his innocence and the fact that he had not been residing at the matrimonial house of prosecutrix on the alleged date of occurrence.
SC No. 96/10 State Vs. Khalil Ahmad Page 15 of 1934. Tenthly, there has been inordinate delay in reporting the present case to the police. The explanation for delay in the presence of contradictions on material points, is not convincing. The matter was admittedly reported after consultation of relative, etc. This has further created doubt about the genuineness of the prosecution case.
35. My decision in this regard finds support by principles of law laid down in case of Papatla John Veeranna v. State of A. P. & Anr., 2003 Cri. L.J. 2204, wherein the Andhra Pradesh High Court observed that the incident had taken place on 08.02.1998, whereas the complaint was submitted on 06.03.1998. The delay of one month was hardly explained. The time between the alleged date of occurrence and submission of complaint was so vast that it was possible to mediate or invent anything. When delay of two days was held to be fatal by the Supreme Court, it was just impossible to prosecute a person on the basis of a complaint submitted almost one month after the alleged date of commission of offence.
36. My decision in this regard finds support by principles of law laid down in case of Chintamani Sethi v. Raghunath Mohanty, 2003 Cri. L.J. 2866, wherein the date SC No. 96/10 State Vs. Khalil Ahmad Page 16 of 19 of commission of offence was 22.08.1986. There was delay of two months in lodging complaint against the alleged offence. The Orissa High Court upheld the order of acquittal.
37. My decision in this regard finds support by principles of law laid down in case of Chikkappa & Ors. v. State of Karnataka, 2002 Cri. L.J. 518, the alleged offence of insult under section 3 (1) (x) of the Act had taken place on 7.9.2001. The complaint was filed after 11 days of the incident. The Karnataka High Court observed that there was inordinate delay in filing the complaint.
38. Eleventhly, the accused examined husband of prosecutrix namely Iqbal as DW7. He, inter alia, stated that his wife left his house about 7-8 months prior to the date of alleged incident. On 05.05.2008 he divorced his wife in a panchayat. His statement contradicts the testimony of prosecutrix regarding her presence at her matrimonial house and pronouncement of talaq on 05.05.2008. As prosecutrix once stated that she was divorced soon after commission of alleged rape when she told this fact to her mother in law and subsequently she deposed that she was divorced when she was being taken to Meerut. This has also created doubt about the truthfulness of the SC No. 96/10 State Vs. Khalil Ahmad Page 17 of 19 prosecution case.
39. Twelthly, in the absence of reliable testimony of prosecutrix, the testimonies of other police witnesses and doctor witnesses will not provide any benefit to the prosecution in proving its case against the accused.
40. Lastly, it is one of the basic principles of criminal jurisprudence that let the hundred accused may go scot- free without punishment but one innocent person should not be punished. This principle is fully applicable in the present case as the prosecution has failed to prove its case against the accused beyond any reasonable suspicion or doubt. It would not be just and fair rather it would be hazardous to convict accused on the basis of inconsistent, contradictory and unreliable prosecution evidence.
CONCLUSION
41. In view of the above reasons and discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove that accused committed rape on the prosecutrix on the point of knife i.e., on the basis of criminal intimidation extended to her by the accused. Consequently, by giving SC No. 96/10 State Vs. Khalil Ahmad Page 18 of 19 benefit of doubt, the accused is acquitted for the offences punishable u/s 376/506 IPC.
42. However, accused is directed to furnish his personal bond for a sum of Rs.25,000/- with one surety of like amount as per provisions of Section 437A of the Code for a period of six months.
43. Previous bail bonds/surety bonds of accused stand cancelled and surety stand discharged.
44. After furnishing of personal bond/surety bond, file be consigned to record room.
Announced in the open court on 23.03.2012 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District:KKD Courts:Delhi SC No. 96/10 State Vs. Khalil Ahmad Page 19 of 19