Delhi District Court
State vs Pradeep -:: Page 1 Of 59 ::- on 9 January, 2015
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013.
State
Versus
Mr. Pradeep
Son of Mr. Pyare Lal,
R/o B-206, Mange Ram Park,
Budh Vihar, Delhi.
First Information Report Number : 349/2013.
Police Station : Punjabi Bagh.
Under sections : 376/313/506 of the Indian Penal Code.
Date of filing of the charge sheet before : 07.11.2013
the Court of the Metropolitan Magistrate
Date of receipt of this file after committal
in this Court ASJ (SFTC)-01, West, Delhi. : 13.01.2014
Arguments concluded on : 09.01.2015.
Date of judgment : 09.01.2015.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
Accused Mr.Pradeep has been produced from judicial
Custody in some other case. He is on bail in this case.
Ms.Kusum Gupta, counsel for the accused.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
***********************************************************
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013
FIR No. 349/2013, Police Station Punjabi Bagh
Under section 376/313/506 and 511 of the Indian Penal Code.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? With- out her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations as way back as in 1996 in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
2. Rape is a dark reality in Indian society like in any other nation. Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is allegedly subjected to unwanted physical contact by a perverted male, known to her, sister in law's husband (nanadoi), as in the present case.
PROSECUTION CASE
3. Mr. Pradeep, the accused, has been charge sheeted by Police Station Punjabi Bagh, Delhi for the offence under sections 376/313/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that during the period of nine months prior to 24.08.2013 at Block no. 139, Quarter No. 7, Railway Quarter, Shakur Basti, Delhi, he committed rape, several times, on the prosecutrix and he voluntarily caused the prosecutrix, then being with child, to miscarry without her consent and such miscarriage was not being caused by him in good faith for the purpose of saving the life of the prosecutrix.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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filed before the Court of the learned Metropolitan Magistrate on 07.11.2013 and after its committal, the case was assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 13.01.2014.
CHARGE
5. After hearing arguments, vide order dated 23.01.2014, charge for offence under sections 376/313 of the IPC was framed against the accused.
CASE IDENTIFIED FOR STUDY / PROJECT
6. Vide order dated 31.01.2014, this case was identified as one of the four cases for the study / project of NGO Partners for Law in Development, in terms of the directions of the hon'ble Delhi High Court received vide endorsement number 54141/FTC/Gaz./2013 dated 31.10.2013, Delhi. In pursuance to the directions of the hon'ble Delhi High Court, the researchers/ officers of the above mentioned NGO were permitted to remain inside the Court room while recording the evidence of the prosecutrix, which was in camera and the evidence of the other prosecution witnesses. However, the researchers stopped appearing after 30.04.2014.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as sixteen witnesses i.e. the prosecutrix as PW1; HC Sohan Pal, Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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Malkhana Moharrrar, as PW2; SI Rajbir Singh, Duty Officer, as PW3; Dr. Sarika, who had medically examined the prosecutrix, as PW4; Ms.Aditi Garg, learned Metropolitan Magistrate who had recorded the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the prosecutrix, as PW-5; Dr. M. Das, who had medically examined the accused, as PW-6; Ms. Shanu @ Shalu, sister of the prosecutrix, as PW-7; SI Shiv Kumar, first Investigation Officer in Police Station Punjabi Bagh, as PW-8; Ct. Balwant Singh, witness of investigation, as PW-9; HC Lalit, witness of investigation, as PW-10; W/Ct. Rajni, who had taken the prosecutrix to the hospital for her medical examination, as PW-11; SI Rohtash Mudgal, who was posted in Police Station Sultanpuri and who had attended the call made at 100 number by the prosecutrix and later taken her to Police Station Punjabi Bagh, as PW-12; Dr. Dhruw Sharma, FSL expert who had examined the exhibits of the case and prepared the FSL report, as PW-13; Ct. Ganesh, who had taken the exhibits of the case to the office of FSL, as PW-14; SI Vipnesh, second Investigation Officer in Police Station Punjabi Bagh, as PW-15; and SI Rakhi Chauhan, who was posted in Police Station Sultanpuri and who along with SI Rohtash Mudgal had taken the prosecutrix to Police Station Punjabi Bagh, as PW-16.
8. The accused and his counsel have preferred not to cross PWs numbers 2, 3, 4, 5, 6, 13 and 14 and therefore, their evidence remains unrebutted and uncontroverted and presumed to have been admitted as Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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correct by the accused.
9. The Additional Public Prosecutor, on 10.03.2014, made a statement that the prosecution did not wish to examine PWs Mr.Badri Nath and Ms.Ratne as they are not relevant witnesses for the prosecution case and requested for dropping them from the list of the prosecution witnesses. On her request, PWs Mr.Badri Nath and Ms.Ratne were dropped from the list of the prosecution witnesses vide order dated 10.03.2014.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
10. In the statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and he has not committed any offence. He has further submitted that he has been falsely implicated in the present case just to extort some amount. He was called to the Police Station, where his arrest was made.
11. The accused has preferred to lead evidence in his defence. However, later on, his counsel made a statement on 16.08.2014 that the accused does not want to examine any witness in his defence and accordingly, the defence evidence was closed vide order dated 16.08.2014.
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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ARGUMENTS
12. I have heard arguments at length. I have also given my
conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
13. Additional Public Prosecutor for the State had argued the matter at length and has requested for convicting the accused for having committed the offence under sections 376 and 313 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable. No motive can be assigned to the prosecutrix for false implication of the accused.
14. The counsel for the accused has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The evidence of the prosecutrix is not reliable as it suffers from various contradictions. There is an unexplained delay in lodging of the FIR which indicates that the FIR has been lodged after deliberation and consultation and is motivated. Even the place of occurrence is not proved. There are several contradictions in the evidence of the prosecutrix and her sister which also indicates that the case is false. The prosecutrix was with the accused with her free consent as her husband was not earning and supporting her. She wanted to extort money from him which he refused to give and then, she has lodged a false case against the accused.
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
15. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
16. Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
17. The prosecution story unveils with the prosecutrix (PW1) making a call at 100 number on 24.08.2013 on which SI Rohtash Mudgal (PW12) from Police Station Sultan Puri went to the house of the prosecutrix at Sultan Puri. The prosecutrix narrated the incident of rape by the accused to him on which he called SI Rakhi Chauhan (PW16) for investigation since it was a rape case. The statement of the prosecutrix (Ex.PW1/A) was recorded. The prosecutrix showed the spot of incident and as it was within jurisdiction of Police Station Punjabi Bagh, SI Rohtash Mudgil and SI Rakhi Chauhan took her to Police Station Punjabi Bagh where DD entry (Ex.PW15/A1) was made and the investigation was assigned to SI Shiv Kumar (PW8) and thereafter to SI Vipnesh (PW15). On 25.08.2013, SI Shiv Kumar (PW8) had brought the rukka for registration of the FIR and on the basis of the same, Duty officer SI Rajbir Singh (PW3) lodged the FIR (Ex.PW3/A), endorsement was made on the rukka (Ex.PW3/B) and certificate under section 65 B Evidence Act (Ex.PW3/C) was issued. The prosecutrix (PW1) was taken Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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to SGM hospital by W/Ct Rajni (PW11) where she was medically
examined by Dr. Sarika (PW4) vide MLC (Ex. PW4/A) and doctor had handed over the blood and other samples of the prosecutrix to Ct. Rajni (PW11) which she handed over the same to the IO and same were seized vide seizure memo (Ex.PW8/B). On 26.08.2013, statement under section 164 of the Cr.P.C (Ex.PW1/B) of the prosecutrix (PW1) was recorded by Ms. Aditi Garg, learned Metropolitan Magistrate (PW5) on the applications of the Investigation Officer (Ex. PW5/A and Ex. PW15/C) and copy were given to the Investigation Officer on her applications for supply of copy of the statement under section 164 of the Cr.P.C. (Ex. PW5/B and Ex. PW15/D). On the same day i.e. 25.08.2013 IO/SI Vipnesh (PW15) along with the prosecutrix (PW1), her sister Ms. Shalu (PW7), HC Lalit (PW10) and Ct. Balwant (PW9) went to house no. 260 Mange Ram Park which was the house of the accused where he was found present and on the pointing out of the prosecutrix (PW1), IO/SI Vipnesh (PW15) arrested him vide arrest memo (Ex.PW15/A) and his personal search was conducted vide personal search memo (Ex.PW15/B). Accused were taken to SGM hospital by HC Lalit (PW10) where he was medically examined by Dr. M.Dass (PW6) vide MLC (Ex.PW6/A). His blood and other samples were taken and handed over to HC Lalit who handed the same to the IO/SI Vipnesh who seized the same vide seizure memo (Ex.PW10/A). Under the pressure of the accused and that of her mother in law, the prosecutrix (PW1) gave a statement before the Court during the hearing of bail application that she had consented for the physical relations with the accused. After the accused was released on Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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bail the prosecutrix (PW1) had told her mother in law that he should not visit her matrimonial home at Mangol Puri but he continued to visit there and he used to tease her and use bad language. The prosecutrix had complained to her mother in law about the same and she told that he would be doing so. She also told the accused to take the prosecutrix to Shakur Basti. Her mother in law and the accused took her to another quarter in Shakur Basti where the prosecutrix (PW1) stayed for about a month. The accused again had forcibly had physical relationship with her and had also beaten her. He had hit her on the head due to which she had bleeding on her nose. He had threatened to kill her parents. He had put a knife on her throat and threatened to stab her. The prosecutrix (PW1) was again pregnant with his child. He came to know himself about her pregnancy and he told her that he would get her check up done. As the prosecutrix was apprehensive that in case she was carrying a female child, the accused would again get an abortion done, the prosecutrix (PW1) ran away from there using the rear door and went to the house of her paternal uncle at Raghubir Nagar where she was residing at the time of her evidence. The prosecutrix (PW1) had made another complaint against the accused in Police Station Punjabi Bagh and to some other authorities (Ex.PW1/C and Ex.PW1/D). IO/SI Vipnesh (PW15) had recorded the statements of the witnesses i.e. prosecutrix (PW1), her sister Ms. Shalu (PW7), duty officer, L/Ct. Rajni (PW11) and other witnesses. IO/SI Vipnesh (PW15) had visited the place of occurrence i.e. house no. 319/7 Shakur Basti, Railway Quarters and conducted inquiry from one Mr.Badri Parsad and one Ms.Ratni and recorded their statements. The Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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prosecutrix (PW1) had alleged that the accused had got her pregnancy terminated but she did not know the name of the clinic/hospital, so IO/SI Vipnesh (PW15) had taken the prosecutrix (PW1) to the nearby clinics/nursing homes/hospital of the nearby area where she was residing. The prosecutrix (PW1) could not identify any clinic or nursing home or hospital where her abortion was conducted. During investigation, IO/SI Vipnesh (PW15) had collected the photocopy of the voter -I card of the prosecutrix (Ex.PW15/X) to ascertain her age vide seizure memo (Ex.PW15/E). On 28.08.2013, IO/SI Vipnesh (PW15), had deposited one sealed envelope along with one sample seal of the SGMH, GNCT Delhi and a carbon copy of the seizure memo pertaining to the exhibits of the prosecutrix (PW1) and on the same day IO/SI Vipnesh had deposited one sealed envelope along with one sample seal of the SGMH and a carbon copy of the seizure memo pertaining to the exhibits of the accused Mr.Pradeep and HC Sohan Pal (PW2) had made entries of the same in register no. 19 at serial no. 3571(Ex.PW2/A). On 30.08.2013, Ct. Ganesh (PW14) received the entire case property along with sample seals from malkhana and deposit the same with the office of FSL, Rohini Vide RC no. 97/21/13 (Ex.PW2/B) and thereafter again on 02.09.2013 the case property was sent to the office of FSL through Ct. Ganesh (PW14) vide RC no. 99/21/13 (Ex.PW2/C) and deposited in the office of FSL vide acknowledgement (Ex. PW2/D). The exhibits of this case were examined by Dr. Dhruw Sharma, Assistant Director (Biology) FSL (PW13) in the office of FSL vide his report (Ex. PW13/A).
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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18. The allegations against the accused Mr. Pradeep are during the period of nine months prior to 24.08.2013 at Block no. 139, Quarter No. 7, Railway Quarter, Shakur Basti, Delhi, he committed rape, several times, on the prosecutrix and voluntarily caused the prosecutrix, then being with child, to miscarry without her consent and such miscarriage was not being caused by him in good faith for the purpose of saving the life of prosecutrix.
IMPORTANT ISSUES
19. The important issues and the points in dispute are being discussed hereinafter.
IDENTITY OF THE ACCUSED
20. There is no dispute regarding the identity of the accused Mr.Pradeep who has been identified by PW1, the prosecutrix and the police witnesses of investigation as well as PW7, Ms.Shanu @ Shalu, sister of the prosecutrix. It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR as they were related since the sister of the husband of the prosecutrix is married with the accused and the accused is the husband of the sister in law of the prosecutrix (nanadoi). Accused is also named in the complaint (Ex.PW1/A) and the FIR (Ex.PW3/A).
21. Therefore, the identity of the accused stands established.
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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AGE OF THE PROSECUTRIX
22. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint/statement (Ex.PW1/A), statement under section 164 of the Cr.P.C. (Ex.PW1/B), her MLC (Ex.PW4/A) and her evidence before the Court, the prosecutrix has mentioned her age as 27 years. As per the prosecution, she was a major at the time of the alleged incident.
23. Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
24. PW6, Dr.M.Das, has medically examined the accused vide MLC (Ex.PW6/A). He has not been cross examined on behalf of the accused.
25. It is mentioned in the MLC of the accused (Ex.PW6/A) that "There is nothing to suggest that individual is incapable of performing sexual intercourse"
26. Even on physical examination, the doctor has found that penis, glands, testis were normal and the secondary sexual characters were well developed.
27. It may also be mentioned here that in her evidence as PW1, the Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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prosecutrix has deposed that the accused has a wife (nanad/sister in law of the prosecutrix) and three daughters and this fact is not controverted by the accused which shows that he admits his virility and potency.
28. Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX AND FSL REPORT
29. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case as the prosecutrix does not have any injury.
30. The Additional Public Prosecutor has argued that the medical and forensic evidence is only for corroboration.
31. PW4, Dr.Sarika, has medically examined the prosecutrix vide MLC (Ex.PW6/A). She has not been cross examined on behalf of the accused.
32. It can be seen from the MLC of the prosecutrix (Ex.PW4/A) that she does not have any external or internal injuries. She had told the doctor that for last 09 months, she was staying with Pradeep Kumar (husband of nanad) and she was sexually and physically assaulted by him, lastly 04 days back. Accused has 03 daughters who stay with his wife. Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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They don't stay together. The prosecutrix has 02 kids who stay with her mother in law. Her husband is at some nasha mukti Kendra. Last sexual contact was 4-5 days back. She was sexually assaulted several times in nine months. The prosecutrix had agreed for her gynecological internal examination which was done and her blood and other samples were taken.
33. Further, the FSL report (Ex.PW13/A) which has been prepared by Dr.Shruw Sharma (PW13) shows that semen was not detected on the exhibits '1a', '1b', '1c', '1d' and '1e' i.e. nail scraping, public hair, vaginal smear, low vaginal swab and high vaginal swab of the prosecutrix. Blood was detected on exhibits '1f', '1g' and '2' i.e. blood sample and blood swab of the prosecutrix and blood sample of the accused. The evidence of PW13 has not been disputed by the accused as he has preferred not to cross examine PW13 and therefore, stands impliedly admitted by the accused.
34. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR (Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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party. In the present case, therefore, it can be said as there is no injury on the body of the prosecutrix (as is clear from her MLC-Ex.PW4/A), the probability is that rape is not committed.
35. These facts indicate that the prosecution version regarding the prosecutrix being raped are false as had she been actually raped, she would have received some injuries, maybe minor and the FSL report would have shown the presence of semen in the exhibits pertaining to the prosecutrix, as she had told the doctor that the last sexual contact was 4-5 days back. In such a situation, if the last sexual contact was 4-5 days back, then there should have been presence of semen in her exhibits. The absence of injuries on her body and semen in her exhibits, throw a shadow of doubt on the claim of the prosecutrix that she was raped by the accused.
36. There is nothing incriminating against the accused in the medical and forensic evidence produced by the prosecution.
DELAY IN FIR
37. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration. 52.
38. The counsel for the accused has argued that there is a delay in lodging the FIR which was lodged after due deliberation and consultation. Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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39. The contention of the prosecution that there is no delay in lodging the FIR as the prosecutrix lodged the complaint immediately after she escaped from the house of the accused.
40. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
41. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
42. In the case reported as State of Rajasthan v. Om Prakash, Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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(2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
43. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
44. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest Sessions Case Number : 349 of 2013. Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
45. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
46. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
47. It is claimed by the accused that as the FIR (Ex.PW3/A) has Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 20 of 59 ::-
-:: 21 ::-
been lodged after a long delay on 25.08.2013 at 04:45 hours (04:45 am) while the allegations made by the prosecutrix in her complaint (Ex.PW1/A) are that the accused had raped her several times for last about nine months which would be since November-December, 2012. The delay in lodging of the FIR has been not explained by the prosecution.
48. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was confined by he accused and she could not approach the police earlier.
49. As per the complaint / statement of the prosecutrix to the police, Ex.PW1/A, which is dated 24.08.2013, the offence was committed for about nine months. She had come to her mother's house two days ago and then called the police at 100 number on 24.08.2013.
50. In her statement under section 164 of the Cr.P.C. (Ex.PW1/B) recorded on 27.08.2013, the prosecutrix has deposed that nine months ago, she had left her house and gone to her nanadoi Pradeep who took her to Shakurpur. He used to call her giving threats and used to be beat her with sticks everyday. He had physical relations with her several times. She is not accepted by her family and in laws. She is left alone.
51. In her evidence before the Court on 31.01.2014, the Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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-:: 22 ::-
prosecutrix, as PW1, has deposed that about one year ago when her mother in law and husband were turning her out of the house, accused intervened, offered and took her to stay in rented accommodation at Shakur Basti. She went with him to a railway quarter in Shakur Basti. On the same night, he forcibly established physical relations with her. He used to fight with her, beat her and forcibly have physical relations with her for about nine months. When she was about five months pregnant, he got her abortion done. After 2-3 days, he again forcibly had physical relations with her. She escaped to her parents' residence and called the police at 100 number.
52. In DD No.51B dated 24.08.2013, PS Sultan Puri (Ex.PW15/A-1), it is mentioned that at 3:55 am, an information was received from a lady caller that she had been kept confined in his house and tortured for two months by her nanadoi.
53. In PCR form (not proved by prosecution), it is mentioned that a lady caller from mobile phone number 9289604667 has informed that "USKE NANDOI NE 9 MONTHS TAK APNE GHAR ME BAND RAKHA AUR TORCHER KIYA HAI". In the same form, it is also mentioned that on 24.08.2013 at 16:09:01, the prosecutrix giving her age, her husband's name and address, has reported that her nanadoi Pradeep has "MUJHE SHADI KA PARLOBHAN DIYA AUR AB SHADI SE MANA KAR RAHA HAI".
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 22 of 59 ::-
-:: 23 ::-
It is borne out from the record that the prosecutrix is not clear about the date as she says in her statement to the police (Ex.PW1/A) made on 24.08.2013 that it was about nine months ago when the accused had raped her for the first time (which would mean November-December, 2012) and two days ago, she came to her mother's house; in her statement under section 164 of the Cr.P.C. (Ex.PW1/B) recorded on 27.08.2013, the prosecutrix has deposed that nine months ago she had gone to the accused (which would mean November-December, 2012); and in her evidence before the Court recorded on 31.01.2014 that it was about one year ago (which would mean January, 2013) and after 2-3 days of her abortion, she escaped to her parents' house and called the police.
54. It is also clear that in her complaint (Ex.PW1/A) she states that two days earlier, she had come to her mother's house (which would be 22.08.2013) and then made the complaint on 24.08.2013. In her evidence, she has deposed that she escaped to her parents' house and called the police (which was on 24.08.2013).
55. It is also clear from her evidence that the prosecutrix was staying alone at Shakur Basti and the accused used to visit there. She has deposed that ".......I remained in Shakur Basti for about 9 months and accused Praddep came there several times. He used to fight with me, beat me and forcibly established physical relations with me.................After abortion when I returned home to Shakur Basti my condition had deteriorated. After 2-3 days accused Pradeep again Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 23 of 59 ::-
-:: 24 ::-
came there.........". She has also deposed that when accused Pradeep used to go for his work, she used to remain in the jhuggi.
56. It appears that the prosecutrix had ample opportunity to approach the police, if she wanted to do so earlier than 24.08.2013 as the accused was not with her all the time. She was living in Shakur Basti and the accused was not residing there and also he was going for his work. If she wanted, then she could have immediately gone to the police or informed any neighbor or her own parental family (as they are residing in Delhi, as deposed by her) about the alleged confinement and rape by the accused. The fact she preferred to remain silent, indicates that no such offence may have been committed.
57. Even as per her complaint (Ex.PW1/A), if she had come to her mother's house two days earlier, then also, she could have immediately informed the police and her own parental family or anyone else about the alleged offence by the accused. Here also, for two days, she preferred to remain silent and not complain to anyone.
58. No reasonable or logical explanation is coming from the prosecution regarding the delay in lodging of the FIR on 25.08.2013 at 04:45 hours (Ex.PW3/A) when the alleged incident of rape for the first time occurred about nine months earlier (as mentioned in statement/complaint dated 24.08.2013-Ex.PW1/A and statement under section 164 of the Cr.P.C.-Ex.PW1/B) and about one year ago (as Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 24 of 59 ::-
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mentioned in examination in chief of PW1 recorded on 31.01.2014).
59. The prosecutrix and the prosecution have not been able to justify the delay and why the prosecutrix did not report the matter immediately or earlier. No logical explanation has been furnished by the prosecution for the delay of about nine months and then the two days when the prosecutrix was in her mother's house.
60. These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The possibility that the FIR was lodged after due deliberation and consultation cannot be ruled out. The discrepancies in the evidence and the documents regarding the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.
61. Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.
STATEMENTS AND EVIDENCE OF THE PROSECUTRIX
62. It is necessary to discuss and analyse the statements and the testimony of the most material witness i.e. PW1, the prosecutrix.
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 25 of 59 ::-
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63. In DD No.51B dated 24.08.2013, PS Sultan Puri
(Ex.PW15/A-1), it is mentioned that at 3:55 am, an information was received from a lady caller that she had been kept confined in his house and tortured for two months by her nanadoi.
64. In PCR form (not proved by prosecution), it is mentioned that a lady caller from mobile phone number 9289604667 has informed that "USKE NANDOI NE 9 MONTHS TAK APNE GHAR ME BAND RAKHA AUR TORCHER KIYA HAI". In the same form, it is also mentioned that on 24.08.2013 at 16:09:01, the prosecutrix giving her age, her husband's name and address, has reported that her nanadoi Pradeep has "MUJHE SHADI KA PARLOBHAN DIYA AUR AB SHADI SE MANA KAR RAHA HAI".
65. As per the complaint / statement of the prosecutrix to the police, Ex.PW1/A, which is dated 24.08.2013, she has alleged that she is married for about 10 years and has two sons. Her husband drinks liquor and beats her. Her nanadoi (husband of her sister in law/nanad) Pradeep visits her house. Nine months ago, Pradeep told her that as her husband beats her, he will take send her to the jhuggi of Shakur Basti Railway Quarter where his Chachi resides. On his behest, she left her house at Mangolpuri and went to stay in Shakur Basti. There, he established physical relations with her without her consent. Out of fear, she did not tell anyone. She had a pregnancy of five months from him which he had got aborted. He used to beat her also at Shakur Basti. Two days earlier, Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 26 of 59 ::-
-:: 27 ::-
she came to her mother's house at Sultanpuri and today she had called the police at 100 number.
66. In her statement under section 164 of the Cr.P.C. (Ex.PW1/B) recorded on 27.08.2013, the prosecutrix has deposed that nine months ago, she had left her house and gone to her nanadoi Pradeep who took her to Shakurpur. He used to call her giving threats and used to be beat her with sticks everyday. He had physical relations with her several times. She is not accepted by her family and in laws. She is left alone.
67. PW1, the prosecutrix, has deposed on oath on 31.01.2014, in her examination in chief that the accused Mr.Pradeep is her brother in law (Nandoi-husband of the sister of her husband). She was married with Mr. Nawal Kishore on 22.04.2003 and has two sons from the wedlock. After marriage, she came to know that her husband drinks liquor regularly. He used to beat her frequently after drinking. He used to demand money from her. He used to ask her bring money from her parents and as her parents are poor, she did not bring any money from them for her husband. He used to tell her to bring money from anywhere. She used to give him whatever money was available with her. Accused Mr.Pradeep used to visit her residence at the above address. He was living at Mange Ram Park, Delhi. She has never visited his residence. As her husband used to beat her for money and her mother in law Ms. Lalita used to taunt her for not bringing any dowry, accused Mr.Pradeep used to ask them not to trouble her or beat her. He used to support her and show sympathy to her. Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 27 of 59 ::-
-:: 28 ::-
Her husband and mother in law used to stop troubling her for some time whenever accused Mr.Pradeep used to intervene. However, they used to again start beating and troubling her later. She did not remember the exact date but it was about one year ago that her mother in law and her husband were turning her out of the matrimonial home when accused Mr.Pradeep again intervened and he offered her mother in law to make her to stay in a rented accommodation at Shakur Basti. He also told her mother in law that his paternal uncle and aunt (Chacha- Chachi) also lived in Shakur Basti. She went with the accused to a railway quarter in Shakur Basti which the accused told her had been taken on rent and she stayed there. On the same night, accused Mr.Pradeep came to the rented accommodation at Shakur Basti in a drunken condition and he did galat kaam with her. By galat kaam, she means that he tried to remove her clothes. She told him that she will tell about this incident to her mother in law on which he replied that "what I will tell my mother in law as she had only sent him there as I was to bear a male child from him" (Tu kya bataygi teri saas ne hi bheja hai yahan ladka paida karne ke liye). He also said that as his wife who is her nanad (sister in law) has three daughters, she has to bear him a male child. He also threatened to kill her children who are living with her mother in law and she is not permitting her to bring them. Then he forcibly established physical relations with her. She remained in Shakur Basti for about 9 months and accused Mr.Pradeep came there several times. He used to fight with her, beat her and forcibly established physical relations with her. After one or two months of the first incident, she came to know that she was pregnant. On enquiry from Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 28 of 59 ::-
-:: 29 ::-
her, the accused came to know that she was pregnant and he took her to a hospital for a check up once or twice. There he learnt she was carrying a female child and he got the same aborted by taking her to another hospital or clinic where a lady doctor had conducted the abortion. She was about 5 months pregnant at that time. She did not know the names and addresses of both the hospital/clinics. After the abortion when she returned home to Shakur Basti, her condition had deteriorated. After about 2-3 days accused Mr.Pradeep again came there and forcibly had physical relations with her. She fought with the accused and escaped to her parents' residence at Sultan Puri. There she made a call to police at 100 number on which the police came there. She narrated everything to the police. Her statement (Ex.PW1/A) was recorded. She was taken to Sanjay Gandhi Memorial Hospital by police where she was medically examined. Her blood and other samples were taken by the doctor. She was produced before the learned Metropolitan Magistrate, at Tis Hazari, where her statement (Ex.PW1/B) was recorded. After she had lodged the complaint against the accused and got him arrested, her mother in law came to her parental home at Sultan Puri to take her to the matrimonial home. Her mother-in-law told her that no one would misbehave with her and nor she would be trouble in any manner and that she should go with her to the matrimonial home. She, however, refused as her husband used to beat her. As her parents are very poor and can not maintain her, she went with her mother in law to her matrimonial home. As her mother in law again started fighting with her as she had got her son in law arrested and that she should depose in favour of accused Mr.Pradeep, she left her Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 29 of 59 ::-
-:: 30 ::-
matrimonial home and now she is living with her paternal uncle (Chacha) Mr. Heera Lal. Her mother in law and accused Mr.Pradeep have threatened to kill her and her children unless she bears accused Mr.Pradeep a male child. Under the pressure of the accused and her mother in law, she had given her statement before the Court during the hearing of bail application that she had consented for the physical relations with the accused. After the accused was released on bail, she had told her mother in law that accused should not visit her matrimonial home at Mangol Puri but he continued to visit there. The accused used to tease her and used bad language. She had complaint to her mother in law about the same and she told her that he would be doing so. Her mother in law also told to accused to take her to Shakur Basti. Her mother in law and accused took her to another quarter in Shakur Basti where she stayed for about a month. Accused again forcibly had physical relationship with her. He had also beaten her. He had hit her on the head due to which she had bleeding on her nose. He had threatened to kill her parents. Accused Pradeep had put a knife on her throat and threatened to stab her. She was again pregnant with child of the accused. He came to know himself about her pregnancy and he told her that he would get her check up done. As she was apprehensive that in case she was carrying a female child he would again get an abortion done, she ran away from there using the rear door and went to the house of her paternal uncle at Raghubir Nagar where she is presently residing. She had made another complaint against accused Mr.Pradeep in PS Punjabi Bagh and to some other authorities. She had brought copy of complaint dated 23.01.2014 addressed to DCW Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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-:: 31 ::-
and copy of complaint (Ex.PW1/C and Ex.PW1/D) dated 23.01.2014 addressed to SHO PS Punjabi Bagh. Both running into three pages each which bears her signature at point A on each page. She had been called to Police Station Punjabi Bagh in connection with said complaint.
68. It would be pertinent to mention here, that it is elaborated in the order dated 11.10.2013 of the hon'ble Delhi High Court in the bail application of the accused (Bail Appln. 1911/2013) that the complainant (prosecutrix) had filed her affidavit wherein she had stated that she had physical relations with the petitioner (accused) with her consent and the complaint was made by her under the pressure of her family members. It is also mentioned in the order that "Complainant is also present in Court and reiterates the averments made in the affidavit by submitting that she had physical relations with the accused with her own consent and the complaint was lodged by her under the pressure of her family members."
69. It can be seen very clearly that the prosecutrix has given different versions of the alleged incident in her different statements.
70. In DD No.51B dated 24.08.2013, PS Sultan Puri (Ex.PW15/A-1), she says that she had been kept confined in his house and tortured for two months by her nanadoi; in PCR form (not proved by prosecution but the same can be read against the prosecution as it is a document of the prosecution), it is mentioned that a lady caller from Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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-:: 32 ::-
mobile phone number 9289604667 has informed that "USKE NANDOI NE 9 MONTHS TAK APNE GHAR ME BAND RAKHA AUR TORCHER KIYA HAI" and "MUJHE SHADI KA PARLOBHAN DIYA AUR AB SHADI SE MANA KAR RAHA HAI"; in her complaint (Ex.PW1/A), the prosecutrix has alleged that the accused had forcibly established physical relations with her at Shakur Basti without her consent and he had got abortion of a five months pregnancy; in her statement under section 164 of the Cr.P.C. (Ex.PW1/B) recorded on 27.08.2013, the prosecutrix has deposed that nine months ago, she had left her house and gone to her nanadoi Pradeep who took her to Shakurpur where he used to call her giving threats and used to be beat her with sticks everyday. He had physical relations with her several times; and in her evidence before the Court, she has deposed that the accused offered her mother in law to make her to stay in a rented accommodation at Shakur Basti and she had gone to a railway quarter in Shakur Basti which the accused told her had been taken on rent and she stayed there. On the same night, accused Mr.Pradeep came to the rented accommodation at Shakur Basti in a drunken condition and he did galat kaam with her. By galat kaam, she means that he tried to remove her clothes. She told him that she will tell about this incident to her mother in law on which he replied that "what I will tell my mother in law as she had only sent him there as I was to bear a male child from him" (Tu kya bataygi teri saas ne hi bheja hai yahan ladka paida karne ke liye). He also said that as his wife who is her nanad (sister in law) has three daughters, she has to bear him a male child. He also threatened to kill her children Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 32 of 59 ::-
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who are living with her mother in law and she is not permitting her to bring them. Then he forcibly established physical relations with her. She remained in Shakur Basti for about 9 months and accused Mr.Pradeep came there several times. He used to fight with her, beat her and forcibly established physical relations with her. After one or two months of the first incident, she came to know that she was pregnant. On enquiry from her, the accused came to know that she was pregnant and he took her to a hospital for a check up once or twice. There he learnt she was carrying a female child and he got the same aborted by taking her to another hospital or clinic where a lady doctor had conducted the abortion. She was about 5 months pregnant at that time. She did not know the names and addresses of both the hospital/clinics. After the abortion when she returned home to Shakur Basti, her condition had deteriorated. After about 2-3 days accused Mr.Pradeep again came there and forcibly had physical relations with her. She fought with the accused and escaped to her parents' residence at Sultan Puri.
71. It can be seen that the prosecutrix has made several contradictions, improvements and discrepancies in her different statements. The same are too major to be ignored as they do not come within the realm of explanation. They strike at the very root of the prosecution case. The same are being tabulated below as follows:
Sessions Case Number : 349 of 2013. Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 33 of 59 ::-
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DDNo.56 B Complaint
Statement Examination in
(Ex.PW15/A-1) (Ex.PW1/A)
under section chief
PCR Form 164 of the
Cr.P.C.
(Ex.PW1/B)
Kept confined in No such mention No such mention No such specific his house and mention tortured for two months by her nanadoi Mujhe shadi ka No such mention No such mention No such mention parlobhan diya aur ab shadi se mana kar raha hai No such mention Accused had Accused had Accused forcibly forcibly physical had physical established relations with relations with physical her several the prosecutrix relations with times several times.
her at Shakur
Basti without
her consent
No such mention Accused had got No such mention Accused caused abortion of a abortion of the five months prosecutrix.
pregnancy No such mention No such mention She had left her No such mention house and gone to her nanadoi Pradeep No such mention She went with Accused took Accused took accused to her to her to Shakur Shakur Basti. Shakurpur Basti.
No mention where he used to Sessions Case Number : 349 of 2013. Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 34 of 59 ::-
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about accused call her giving
calling her or threats and used
beating her to beat her with
sticks everyday
No such mention Accused had Accused had Accused had
physical physical physical
relations with relations with relations with
her without her her several her without her
consent times consent
No such mention Husband used to No such mention Husband used to
drink drink, beat her
and demand
money
No such mention No such mention No such mention Accused used to
intervene when
husband and
mother in law
used to taunt or
beat her and
show sympathy
No such mention No such mention No such mention Husband and
mother in law
were turning her
out when
accused
intervened,
offered her
mother in law to
make her stay at
Shakur Basti.
No such mention She went to stay She went to She went with
at Shakur Basti accused accused to a
on the saying of railway quarter
accused in Shakur Basti
No such mention No such mention No such mention On the same
night accused
came in drunken
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013
FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 35 of 59 ::-
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condition
No such mention No such mention No such mention Accused told her
that she was to
bear a male
child for him
and her mother
in law had sent
her for this
purpose
No such mention No such mention No such mention Accused
threatened to
kill her children
No mention Accused had Accused had Then he forcibly
about physical physical physical raped her
relations relations with relations with
her without her her several
consent times (No
mention of
consent or lack
of consent)
No such mention No such mention No such mention He raped her
several times for
nine months
No such mention Accused got her No such mention Accused got her
pregnancy of pregnancy of
five months five months of a
aborted female child
aborted
No such mention No such mention No such mention 2 days after
abortion, he
forcibly had
physical
relations with
her
Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013
FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 36 of 59 ::-
-:: 37 ::-
No such mention No such mention No such mention She fought with the accused and escaped to her parents' house No such mention Two days prior No such mention No such mention to lodging of complaint on 24.08.2013, she came to her mother's house No such mention Called the No such mention Called the police at 100 police at 100 number number No such mention No such mention Her parental No such mention and in laws families are not accepting her and she is left alone No such mention No such mention No such mention Mother in law had come to Sultan Puri and taken the prosecutrix to matrimonial home telling her that no one will misbehave or trouble her No such mention No such mention No such mention Mother in law and accused threatened the prosecutrix to kill her and her children unless Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
State versus Pradeep -:: Page 37 of 59 ::-
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she bears the
accused a male
child
72. Besides the above tabulated contradictions in the different statements of the prosecutrix, there are some more unbelievable versions coming forth in her cross examination, which also indicate that the accused has been falsely implicated in this case.
73. n her examination in chief, as PW1, the prosecutrix has deposed that she had gone to a railway quarter at Shakur Basti while in her cross examination, she has deposed that she resided in a jhuggi (hut) and not quarter at Shakur Basti.
74. In her examination in chief at page 5, as PW1, the prosecutrix has deposed that she had given her statement before the Court during the hearing of the bail application that she had consented for physical relations with the accused. She had been pressurized by the accused and her mother in law to give the statement. Here, it is relevant to mention that it is clearly mentioned in the order dated 11.10.2013 of the hon'ble Delhi High Court in the bail application of the accused (Bail Appln. 1911/2013) that the prosecutrix had filed her affidavit and stated before the hon'ble Court that the complaint was lodged by her under the pressure of her family members.
75. It is also clear that the prosecutrix had not made any complaint before the hon'ble Delhi High Court about her being pressurized by the accused and her mother in law to make a statement that she had consented Sessions Case Number : 349 of 2013.
Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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for physical relations with the accused. She has also not made any such complaint before the Court of Mr.Pankaj Arora, learned Metropolitan Magistrate where she had gone with the accused. She had also no made this complaint to any authority, the police or the Court or anyone else.
76. It is not believable that a woman would go many times with a man after he has raped her several times in nine months. It is also not believable that such a woman who has been raped several times, will not disclose about the same to her family or any one else. It is also not believable that a woman when she is a safe place as a High Court and District Court and from whom the hon'ble judge has also made enquiry, will not disclose about the same. When a woman is fully aware that a man is wrong since he has raped her and has given her threats, she will immediately make a complaint about the same.
77. The prosecutrix has admitted that she is visible with the accused in several photographs (Ex.PW1/D-5, Ex.PW1/D-6, Ex.PW1/D-7, Ex.PW1/D-9, Ex.PW1/D-8, Ex.PW1/D-10, Ex.PW1/11, Ex.PW1/12, Ex.PW1/13 and more) .
78. Photograph Ex.PW1/D-9 has a date i.e. 04.03.2013 printed on it and the same has not been disputed by the prosecutrix or the prosecution.
79. Photograph Ex.PW1/D-7 has a date i.e. 16.11.2013 printed on Sessions Case Number : 349 of 2013.
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it and the same has not been disputed by the prosecutrix or the prosecution. The accused and the prosecutrix are standing together and the accused has his left arm around the right shoulder of the prosecutrix. The photographs Ex.PW1/13, Ex.PW1/12 are of a party and it is also clear that they are eating from one plate.
80. All these photographs show the close proximity between the accused and the prosecutrix and she appears to be very comfortable with him.
81. The prosecutrix has deposed that some of the photographs were taken at Haridwar when she had gone for the last rites of her father in law who had expired 3-4 years ago. It is very apparent on seeing the photographs that they are not of last rites but have been taken in the year 2013 and there is no one else in the two photographs Ex.PW1/D-7 and Ex.PW1/D-9 except for the accused and the prosecutrix which indicates that only two of them were in Haridwar and it was not for the last rites of her father in law who had expired years earlier. These photographs also indicate that the prosecutrix was in the company of the accused with her free consent and was not forced by him.
82. In her cross examination dated 24.02.2014 at page 3, the prosecutrix has deposed that she had not filed any affidavit during the hearing on the bail application of the accused. However, this fact is contrary to the record as it is clearly mentioned in the order dated Sessions Case Number : 349 of 2013.
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11.10.2013 of the hon'ble Delhi High Court in the bail application of the accused (Bail Appln. 1911/2013) that the complainant (prosecutrix) had filed her affidavit wherein she had stated that she had physical relations with the petitioner (accused) with her consent and the complaint was made by her under the pressure of her family members.
83. In her cross examination dated 24.02.2014 at page 3, the prosecutrix has deposed that she did not remember the questions asked to her by the hon'ble judge in the enquiry from her. It is also mentioned in the order dated 11.10.2013 of the hon'ble Delhi High Court in the bail application of the accused (Bail Appln. 1911/2013) that "Complainant is also present in Court and reiterates the averments made in the affidavit by submitting that she had physical relations with the accused with her own consent and the complaint was lodged by her under the pressure of her family members."
84. In her cross examination dated 24.02.2014 at page 4, the prosecutrix has deposed that after the accused was granted bail, she had never come with him to Tis Hazari Courts. However, in the next sentence she has admitted coming with accused to Court of Mr.Pankaj Arora, learned Metropolitan Magistrate.
85. In her examination in chief at page 3, the prosecutrix has deposed that after one or two months of the first incident, she was pregnant and the accused had got the pregnancy aborted as she was Sessions Case Number : 349 of 2013.
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carrying a female child. Then she has deposed that she was about 5 months pregnant at that time. It is not possible that after one or two months of the first incident, she could have been five months pregnant.
86. Thereafter, in her cross examination dated 24.02.2014 at page 3, the prosecutrix has deposed that she had physical relations with the accused for the first time in Shakur Basti on 11.12.2012. In her examination in chief at page 4, she has deposed that after 2-3 days of abortion when she returned home, the accused had again forcibly had physical relations with her and she had escaped to her parents' house and called the police (which was on 24.08.2013). Calculating the period, it can be said that one or two months from 11.12.2012 would be January or February, 2013 or even if it is stretched a little, at the most March, 2013. However, the complaint was made on 24.08.2013. There is a clear unexplained discrepancy in the same.
87. It is also very interesting to note that the prosecutrix has even visited the accused in jail. In her cross examination recorded on 13.02.2014 at 1.10 pm on page 2, she has deposed that "I had visited the accused in Tihar Jail once or twice. Once I had gone with Mr. Sonu, brother of accused. Another time I had gone at the instance of my mother in law who had left me till the order. Even the earlier time when I had gone with Mr. Sonu, it was after he had talked with my mother in law." It was due to the complaint of the prosecutrix that the accused was incarcerated and then her going to jail to visit him is Sessions Case Number : 349 of 2013.
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surprising.
88. It also cannot be ignored that the very first information given by the prosecutrix to the police vide DD No.51B (Ex.PW15/A1) and the PCR form do not find any mention of the prosecutrix being raped by the accused for nine months and made to undergo abortion. In fact, it is mentioned there that the accused had confined and tortured her and more importantly, the accused had assured marriage to the prosecutrix and now was refusing to marry her. There is no mention of rape or abortion.
89. Another important fact which cannot be ignored is that the prosecutrix has given her affidavit before the hon'ble Delhi High Court and given her statement that she had physical relations with the accused with her consent and she had been pressurized by her own family to make the complaint against the accused.
90. Also the prosecutrix has given different versions about her alleged pregnancy of five months and its subsequent abortion as she was carrying a female child.
91. In her cross examination recorded on 10.03.2014 at page 4, she has deposed that "I cannot tell the name of the doctor who had conducted the abortion. I also cannot tell the name of the hospital or the nursing home or any place of hospital or nursing home where abortion had taken place. Vol. It was the private hospital. I am not Sessions Case Number : 349 of 2013.
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having any document or medical record to show that my abortion was conducted. Vo. The accused may be having the documents." The prosecutrix has failed to disclose the name of the doctor, hospital or nursing home where her alleged abortion was conducted. She has also failed to produce any medical records or documents to show that her abortion was conducted. Despite the fact that the Investigation Officer SI Vipnesh (PW15) had taken the prosecutrix to nearby clinics / nursing homes / hospitals of the nearby area where the prosecutrix was residing, the prosecutrix was not able to identify the clinic / nursing home / hospital where her abortion was conducted (as deposed by PW15). All these facts show that the prosecution has not been able to prove that the accused had caused the abortion of the prosecutrix.
92. The veracity of the testimony of the prosecutrix, as mentioned in her examination in chief, is shattered in her cross examination, which makes it highly improbable that such incidents, as alleged by her, ever occurred. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the Sessions Case Number : 349 of 2013.
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prosecutrix is that the prosecution case against the accused is false.
93. The prosecutrix has claimed that she was threatened by the accused several times. However, the effect of the alleged threats has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused as she remained in his association for a very long time and there was no reason why she could not have disclosed about the alleged threats to her family, neighbours, police and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was neither any danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that she herself was in the company of the accused with her consent so much so that she preferred to remain there even when the accused was not there and was away to his office or elsewhere.
94. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence Sessions Case Number : 349 of 2013. Unique Case ID Number : 02401R0585452013 FIR No. 349/2013, Police Station Punjabi Bagh Under section 376/313/506 and 511 of the Indian Penal Code.
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and in the absence of special circumstances no conviction can be based on the evidence of such witness."
95. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
96. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
97. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
98. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of Sessions Case Number : 349 of 2013.
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doubt to the petitioner.
99. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
100. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material and there being no forensic or medical evidence, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident as she is related to him (accused is the husband of the sister in law / nanad of the prosecutrix). If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
Sessions Case Number : 349 of 2013.
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101. If one integral part of the story put forth by a witness- prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
102. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376 and 313 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the accused made raped the prosecutrix and caused her abortion.
EVIDENCE OF PW7-SISTER OF PROSECUTRIX
103. The prosecution case suffers a severe blow in the evidence of PW7, Ms.Shanu @ Shalu, sister of the prosecutrix.
104. In her examination in chief, PW7 has only deposed that she had come to know from someone that accused Pradeep had taken her sister somewhere. She did not know anything else about this case.
105. She was declared hostile by the prosecution and in her cross Sessions Case Number : 349 of 2013.
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examination by the Additional Public Prosecutor, after her statement under section 161 of the Cr.P.C. was read over to her, she has deposed that the police did not make any enquiry from her nor recorded her statement. This would indicate that the allegations made in her statement against the accused were not made by her. However, later on, she admitted making the statement under section 161 of the Cr.P.C. (Ex.PW7/A) to the police that the prosecutrix had told her that the accused had forcibly established physical relations with the prosecutrix at Shakur Basti and she had become pregnant and the accused had got her abortion conducted. She also admitted that the prosecutrix told her that the accused had told her that she had two sons and he had three daughters and that if the child she was carrying was male, he would have kept that child. She also admitted that the prosecutrix told her that after 8-9 of her living with the accused, he pressurized her to go to her in-law's house and when she went to her in-law's house, she was turned away and her parents could not keep her in their house due to financial constraints and as they were not keeping well. She also admitted that on 24.08.2013 when her sister had come to her residence at Sultan Puri, she had telephoned the police at 100 number in her presence. She has also deposed that as she did not understand, she could not depose all the above facts in her examination in chief.
106. Here is the sister of the prosecutrix who supposedly is aware of all the facts of the case and knows that the accused is being prosecuted on the complaint of the prosecutrix. It is not believable that she did not Sessions Case Number : 349 of 2013.
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understand and could not depose about the facts in her examination in chief.
107. Further, in her cross examination, PW7 has deposed that "...I had not told the police in my statement that I had come to know that the Ms. Sarita is residing with the accused and I had gone to bring her but she had refused to come with me......... I did not go to meet my sister at Shakur Basti during the period of approximately while she was residing with accused....." However, it is mentioned in the statement under section 161 of the Cr.P.C. of PW7 that when she came to know that the prosecutrix was living with the accused at Shakur Basti, she along with her mother had gone there several times to make the prosecutrix understand but she had refused to come. PW7 has also deposed that the prosecutrix had called the police from her mobile phone.
108. However, it is clear that PW7 is making contradictions from her own statement recorded by the police. She has also leveled some allegations in her evidence against the accused that the accused used to telephone her and say bad things but apparently she has not made any complaint regarding the same to any authority which falsifies her allegations.
109. Further, there are contradictions between the evidence of PW 1 and PW7 regarding PW7 visiting the prosecutrix at Shakur Basti, the prosecutrix using the mobile phone of PW7 for calling the police at 100 Sessions Case Number : 349 of 2013.
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number, the accused telephoning and saying bad things to PW7, etc. No explanation is furnished by the prosecution for all the above elaborated contradictions. The same are blemishes which cannot be ignored and they throw a shadow of doubt on the prosecution version and the possibility of false implication of the accused cannot be completely ruled out.
110. The veracity of the prosecution case is shattered due to the unexplained contradictions in the evidence of its two material witnesses, PWs 1 and 7, which makes it highly improbable that such incidents, as alleged by the prosecutrix, ever occurred. The prosecution has failed to furnish any explanation in respect of the contradictions in the evidence of the prosecutrix and her sister. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence of the prosecutrix and her husband suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecution is that the prosecution case against the accused is false.
MENS REA / MOTIVE
111. Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the Sessions Case Number : 349 of 2013.
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prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
112. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
113. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Sessions Case Number : 349 of 2013.
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Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
114. In the present case, a story has been projected that the accused has raped the prosecutrix and caused her abortion and this version appears to be untrue as there is no reason why he would do so. No reason is shown as to why the accused would jeopardize his own marriage and spoil the relations with his marital family. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution.
115. There does not appear to be any criminal intention and mens rea on the part of the accused.
DEFENCE OF THE ACCUSED
116. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has denied all the evidence against him. He wanted to lead defence evidence but later on, he has preferred not to lead any evidence in his defence. It has been argued that the prosecutrix was living with the accused with her free consent and she had trapped the accused to extort money and wanted him to transfer his property in her name. She also Sessions Case Number : 349 of 2013.
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wanted to marry him.
117. The defence of the accused appears to be plausible considering the unreliable evidence of the prosecution which suffers from overwhelming contradictions and glaring inconsistencies. The suggestions regarding his defence have been put to PWs 1 and 7 which have been denied by them.
118. The accused had filed some photographs on the judicial record during the final arguments and submitted that the prosecutrix was with the accused with her consent but the same cannot be considered as they have not been proved by the accused as per the Indian Evidence Act.
119. However, the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.
120. It has already been discussed above that the evidence of prosecution is not reliable and is unworthy of credence. Therefore, the defence of the accused appears to be plausible.
INVESTIGATION
121. The investigation conducted in the present case has been deposed by PWs 12, 16 and 15, the first, second and the third Sessions Case Number : 349 of 2013.
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Investigation Officers respectively. The FIR, documents of arrest of the accused, documents prepared during investigation etc. have been proved properly in the prosecution evidence. PWs 4, 6 and 13 have proved the MLCs of the prosecutrix and the accused and the FSL report.
122. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
123. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
124. In the present case, it is clearly seen from the evidence of the prosecution especially of PW1 that the allegations against the accused appear to be false.
FINAL CONCLUSION
125. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are Sessions Case Number : 349 of 2013.
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as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
126. Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix nor caused her abortion. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
127. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.
128. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be Sessions Case Number : 349 of 2013.
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proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.
129. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.
130. It is a case of heinous crime of rape and causing abortion which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
131. The prosecution has miserably failed to prove that during the period of nine months prior to 24.08.2013 at Block no. 139, Quarter No. Sessions Case Number : 349 of 2013.
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7, Railway Quarter, Shakur Basti, Delhi, the accused committed rape, several times, on the prosecutrix and he voluntarily caused the prosecutrix, then being with child, to miscarry without her consent and such miscarriage was not being caused by him in good faith for the purpose of saving the life of the prosecutrix.
132. All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of rape of the prosecutrix by accused Mr.Pradeep and casuing her abortion and the accused merits to be acquitted for the offence under sections 376 and 313 of the IPC.
133. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Pradeep.
134. Accordingly, Mr.Pradeep, the accused, is hereby acquitted of the charges for the offences punishable under sections 376 and 313 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
135. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
136. Case property be confiscated and be destroyed after expiry of Sessions Case Number : 349 of 2013.
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period of limitation of appeal.
137. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
138. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 09th day of January, 2015. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
********************************************************** Sessions Case Number : 349 of 2013.
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