Delhi District Court
State vs . Heera Lal, on 9 March, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.8884/2016
FIR No.36/13
PS South Campus
U/s 354 and 376 of IPC
State Vs. Heera Lal,
S/o Late Shri Girdhari Lal,
R/o Servant Quarter No.D-11/21B,
Moti Bagh-I, New Delhi.
Date of Institution 11.07.2013
Argument heard/order reserved 09.03.2017
Date of judgment 09.03.2017
Final Order Acquittal
JUDGMENT
(A) FACTS OF THE CASE
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Criminal Procedure Code (for short Cr.P.C), are that on 01.04.2013, at about 8 PM, accused on the pretext of being Tantrik came to the house of the prosecutrix at House Number E-120, Top Floor, Moti Bagh-I, New Delhi and in the pretext of performing some pooja/hawan, accused locked the entire family of the prosecutrix in a separate room and during the pooja/hawan accused made the prosecutrix unconscious and committed rape upon her. These are the allegations upon which present FIR was registered, matter FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 1 of 26 was investigated into and accused was charge-sheeted in this case.
(B) INVESTIGATION
2. During investigation interalia other things, IO got conducted medical examination of prosecutrix at Safdarjung Hospital, prepared site plan at the instance of prosecutrix, got recorded statement of prosecutrix u/s 164 of Cr.P.C, arrested the accused, got conducted medical examination of accused at Safdarjung Hospital. After completion of investigation, challan was filed before the learned MM on 26.06.2013 and the case was committed to Ld. Predecessor Court on 11.07.2013.
(C)CHARGE
3. On 23.07.2013, a charge was framed against the accused by Ld Predecessor Court for the offence punishable u/s 376 of IPC to which accused pleaded not guilty and claimed trial. Thereafter, matter was posted for prosecution evidence. Matter was transferred to this Court on 18.08.2015.
(D) PROSECUTION EVIDENCE
4. In order to substantiate the allegations, the prosecution examined as many as fifteen following witnesses:-
(I) Ms. Jeevan Agri as PW-1, who is the husband of the prosecutrix.
(ii) ASI Matwar Singh as PW2, who was the duty officer.
(iii) Ct. Thakur Dass as PW3, who accompanied with SI Mohd. Swalay and reached at the spot after first call made to the police.
(iv) Prosecutrix/complainant as PW4 who reiterated the facts of the case and proved her complaint Ex.PW4/A and other relevant documents.
(v) W/ASI Sunita as PW5, who has received the information on 100 number and informed the duty officer.
(vi) Sh. Yogesh Verma as PW6, who has identified the signatures of Dr. FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 2 of 26 Chetan Kumar upon potency test report of accused.
(vii)Dr. Sunaina Wadhwa as PW7, who has identified the signatures of Nidhi Siddharth upon MLC of prosecutrix.
(viii) SI Mohd. Swalay, first IO, who was on emergency duty and assigned PCR call vide DD entry no.3A.
(ix) Dr. Manish Upadhyaya as PW9, who had received the sealed parcels and examined the parcles and prepared the detailed report regarding blood and semen.
(x) Sh. Shankar Narayananan as PW10 who has received the four seals parcels for examination and opinion and examined it regarding DNA profiling.
(xi) W/SI Asha as PW11, who carried out the investigation in the present case.
All the witnesses were cross-examined at length.
After completion of prosecution evidence, matter was posted for statement of accused.
(E) STATEMENT OF ACCUSED
5. Statement of accused was recorded u/s 313 Cr.P.C separately. Accused had submitted that the prosecurtrix and her husband have falsely implicated him in this case as the husband of the prosecutrix was working with some advocate. When accused went to his house to demand his dues for massage and material, at that point of time, husband of prosecutrix was under
influence of liquor. He abused him and he said "main kanoon janta hoon, tujhe sabak sikhaunga, mai Supreme Court ke vakeel ke sath kaam karta hoon'. With the help of police, both the prosecutrix and her husband falsely implicated him in the present case to avoid the payment of massage charges. He is not a 'tantrik' and his job is to give massage to ailing people. Accused also opted to lead defence evidence.
FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 3 of 26 (F) DEFENCE EVIDENCE
6. In order to prove his defence, accused examined Sh. Rajesh Panwar and Sh. Ravinder Salhotra as DW-1 and DW-2.
(i) DW1 has stated that accused was known to him for about 20/25 years and doing the job of massage for last so many years and had massaged his broken leg once when it was broken in the year 1996 and is still availing services for massage as and when required.
(ii) DW2 has stated that accused is known to him since the year 1999 when he went for massage as he had sustained some injury in his shoulder. He used to visit the accused for his massage and in February 2013, he went to him. Thereafter in March 2013 he again went there and at that time one person was telling himself as husband of one lady and was requesting the accused for massage of his wife. He told to the accused that she had already relief because of massage of accused. The accused told him that he had not paid the entire fees of earlier massage. Then, he told that he would clear his arrears and requested the accused to prepare the oil for the massage. Thereafter, DW2 again visited the accused in the month of October/November 2013 and there he came to know that accused was already in Jail. He further deposed that accused is not doing the work of Tantrik.
Both the witnesses were cross-examined at length.
After conclusion of defence evidence, matter was posted for final arguments.
(G) FINAL ARGUMENTS
7. Final arguments heard on behalf of both the parties. I have gone through the records as well as relevant provisions of IPC and written submissions filed on behalf of accused.
FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 4 of 26
8. It was argued on behalf of the State that the prosecutrix was residing with her family. Sometimes she used to feel in her dreams that somebody was throttling her and some times she used to feel depressed. She told about it to her husband. Her husband contacted to a Tantrik Baba/accused. On 30.03.2013, accused came to her house and had discussions with her and after seeing her stated that he would perform some pooja next day to make those spirits go away. On the next day, accused came to her house at about 8 pm in the evening and asked her husband to bring some pooja samagri and her husband brought the same. Accused had brought some oil/lotion and applied the same on her legs below the knee portion and also on her hands. Accused then stated that he would come the very next day and would perform some pooja so that the evil spirits go away. Thereafter, accused came on 02.04.2013 sometimes in the afternoon with some sweets and other materials and he went out with her husband to feed the birds. Accused then came back at about 8 pm in the night and told them that he would perform pooja in the open veranda outside the room and asked the prosecutrix to wear only maxi with no undergarments and to come for pooja. Accused told her husband to light up a lamp inside the room and pray and made her husband, children and her mother in law to remain inside the room and instructed them not to come out of the room during the performance of the pooja. Accused lit up some fire in the nature of a havan and prosecutrix sat there in front of him as instructed by the accused. Accused started fondling with her breasts and other parts of her body and she was unable to resist as "she became semi unconscious". Accused lifted the maxi and had forcible sexual intercourse with prosecutrix and thereafter she fell unconscious. Later on she was told by her husband that he had looked through the hole in the door and found as to what accused was doing and he had broken up the door and came out. Accused had run away from the spot. All these facts have been proved by prosecutrix and her husband. Other witnesses have also FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 5 of 26 well corroborated the prosecution story. Therefore, it was prayed that accused may be convicted for the offences charged with.
9. On the other hand, apart from several other arguments, learned defence counsel argued that on 02.04.2013, present FIR was registered against the accused with the allegation that the prosecutrix was suffering from some irritation and consequent to which there was domestic turmoil in her house. The prosecutrix's husband in order to cure his wife of her mental ailment by way of exorcism (Jhaad Phoonk) contacted accused and accused came to their house on 30th March 2013 for discussion of the problem with her family members.
10. It was further argued on behalf of the accused that as per the version of the prosecution, the accused had visited the house of the prosecutrix at the time when the husband of the prosecutrix was in the house on 30th and 31st March, 2013 and according to them, he had agreed to chase away the spirits which the prosecutrix is supposed to have been possessed and on 01.04.2013, he visited the house of the prosecutrix and at his instance according to the prosecution story, all the inmates of the house situated on the terrace of a government flat were asked to remain inside the room and immediately outside the room over an area on the veranda which is only about 2 ½ feet in the width accused was alleged to have performed a "hawan" in the presence of the prosecutrix while wearing only maxi and according to the prosecution case, the prosecutrix lost her consciousness and her husband who was peeping through the key/hole of the door saw that the accused was doing something with his wife and he broke open the door and came out and later the police was called.
11. It was further argued on behalf of accused that the PW4/prosecutrix had FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 6 of 26 substantially improved the version in her examination-in-chief from allegation in her complaint and she was confronted with the various improvements she has made before the Court. Apart from this, there is series of contradictions as far as her statement is concerned. In her examination in chief she has stated that the site plan ExPW4/C was prepared at her instance, while in her cross-examination she categorically stated that the police had made the site plan on its own and not at her instance and the said site plan was prepared in the presence of her husband. Further, in her cross-examination she admitted that the police did not record her statement at her house but recorded the statement in police station. PW3 Ct. Sh. Thakur Das who went alongwith PW8 SI Mohd. Sawley to the spot and after sometime PW11 W/SI Asha and PW5 HC Sunita who also reached there have made contradictory statement regarding medical examination and recording of statement of the prosecutrix. PW8 SI Mohd. Sawley has stated that SI Asha and Sunita took the prosecutrix to the hospital and after medical examination they returned to the spot and recorded the statement of the prosecutrix. In contradiction to this PW-11 SI Asha has stated that when she went to the prosecutrix and other family members including her husband was present at the spot and she recorded the statement of the prosecutrix ExPW4/A and thereafter, the prosecutrix was taken to Safdarjang Hospital. All these versions are clear variants with the version of the prosecutrix where she says that her statement was recorded at the police station.
12. It was further argued by the counsel for the accused that the alleged incident is supposed to have been seen by PW1, the husband of the prosecutrix, who categorically stated that the accused had applied massage on the legs and hands of his wife and had also brought some eatable items which were used to feed the birds and chicken and mutton were feeded to dogs, which means that the accused does the job of maalish and had bondage with animals.
FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 7 of 26 According to the version of PW1, he was supposed to have seen the accused lifting the maxi of his wife and doing something and he could see all things through a hole in the door. In this context the site plan ExPW4/C may be looked into and the site plan indicates that a very minute box like rectangular mark as the spot containing no measurements whatsoever and it shows only one house and does not even indicate whether it is ground floor or terrace. The prosecutrix has also stated that the distance of her room from that of the neighbour was only three feet and to go to the neighbour's house, one has to pass through her house. But the site plan does not mention the second house which is just 2 ½ feet away from the house of the prosecutrix in which admittedly at the time of commission of the offence Vikram was present but this statement was not recorded. The site plan is conspicuous by even the absence of the mention of the door or the hole from which the so- called alleged evidence was seen by PW1. Not even a photograph of the door, or the hole in the door and its surrounding was taken by the police. This reinforces the statement of the prosecutrix that even her statement was recorded in the police station and from this it can be safely inferred that no site plan was prepared at the site. In this context, the statement of PW8 Mohd. Sawaley may be perused wherein he categorically stated that husband of the prosecutrix had shown to the investigation officer the hole in the wall from where husband of prosecutrix had seen his wife from the inside the room. Even the hole in the wall was not photographed when police officials present there have categorically stated that they were shown a hole in the wall. In any event, it shows that no hole existed either in the wall or in the door and PW1 made a false statement only to implicate the accused in the false proceedings. Even W/ASI Sunita as PW5 admitted that the statement of mother in law of the prosecutrix was not recorded and that no photograph of the door was taken and she was not aware whether the IO has given any description in the site plan about the hole in the door. Even PW3, FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 8 of 26 Ct. Thakur Das, admitted that the statement of the neighbours was not recorded nor photograph of the house was taken.
13. It was further argued by the ld. Counsel for the accused that according to the prosecutrix she was told by the accused that he would perform the pooja in the open veranda on the first floor and that she should wear only maxi with no undergarments. However, the police had sent a sealed parcel containing one maxi printed red colour, one bra and one salwar to the FSL, Delhi which were the clothes worn by her at the time of incident. The whole prosecution case is based on the story that she was wearing only a maxi while the evidence on record by the prosecution shows in addition to the maxi, she was also wearing a bra and salwar and there is no allegation by the prosecutrix that anybody even attempted to remove either her inner-wear garment or the salwar.
14. It was further argued that mother in law was of prosecutrix present in the house and when the police arrived at the spot her husband, mother in law and neighbour Vikram were present. She conceded to the fact that neither the statement of her mother in law nor the statement of Vikram residing in adjoining premises on the same terrace separated by just 2 ½ feet were recorded by the police. In this context, the judgment of the Hon'ble Sureme Court in case of Tiharu Vs. State of Chhatisgarh reported in 2006 CrLJ 2358 is relied upon wherein it has been held that "when a material witness is given up by the prosecution for no rhyme or reason the same justifies adverse inference against the prosecution and further weakens the truthfulness of the prosecution case". In this connection, the statement of the investigating officer PW11 W/SI Asha is relevant. During cross-examination when the question was put to her about the non-examination of the mother in law of the prosecutrix, she stated that she was not examined due to language problem FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 9 of 26 as she was not speaking and understanding Hindi. She also conceded to the fact that no one was called to interpret the version of the mother in law of the prosecutrix. It was pointed out during the arguments that a false case has been registered against the accused for the sole reason that he had visited the house of the prosecutrix to receive his massage charges amounting to Rs.1650/- which they refused to pay and the husband of the prosecutrix, working as clerk with lawyer, alongwith prosecutrix decided not only not to pay the balance but also implicated him in the present case which is clear from the testimony of prosecutrix itself.
15. It was further argued that prosecutrix herself has admitted the motive behind the false implication of the accused in the present case. Further it was argued that in his defence accused has proved that he was not working as 'Tantrik' but was doing the work of massage.
16. It was further argued that the prosecutrix was examined by the doctor and in MLC it is categorically stated that there injury was present on the body of the prosecutrix. In the said MLC report she was supposed to have made some statements to the doctor but in her cross-examination she has denied having made any statements to the doctor. The prosecutrix was not able to answere the question as to who was the person to whom the house was allotted. She first deposed that he was a relative and then later said she pays rent of Rs.500/- to the person whose name she does not know. She has also said that her husband was working in hotel while the husband says he was working as a clerk with a lawyer in Supreme Court.
17. It was further argued that to ascertain whether any chemical was used by the accused at the time of hawan which could make the prosecutrix unconscious the various items which were used for performing the hawan FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 10 of 26 were sent to CFSL and the report of the CFSL and this report also suggests that no stupefying substance was found in exhibits.
18. It was further argued that even the DNA examination conduced by the FSL dated 9th April 2014 which was submitted before this Court on 16th April 2014 clearly states that since there was no male/complete DNA profile generated from Exhibit '3e(i)' i.e. microslide (prosecutrix), it could not be compared with that of exhibit '2' i.e. Gauze cloth piece (accused). This FSL report clearly shows that no rape was committed by the accused.
That the accused has nothing to do overtly or covertly with the commission of the above said offence and the present case is ploy by the prosecutrix and her husband to make an old man suffer for no fault.
19. It was further argued that it is evident from evidence that the husband of the prosecutrix who was working as a clerk with a lawyer, in collusion with the prosecutrix had fabricated this false case in which none of the medical evidence made available on record including the DNA report, point out to the culpability of the accused. Further, when the prosecutrix was asked to repeat her statement that she framed the accused to avoid monetary consideration which were due to him for the services rendered she struck to the statement and has in fact by way of substantive evidence admitted the false implication of the accused in the present case coupled with the fact that even the version of the prosecution or the details of the clothes sent to the FSL for examination is completely at variance with the prosecutrix's theory is also a point to the fact that prosecutrix has willfully implicated the accused in the present case and taking into consideration the above facts including the fact that the accused has clean antecedents and it was prayed that accused may kindly be acquitted.
FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 11 of 26 (H) RELEVANT PROVISIONS OF LAW Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-
375. Rape. - A man is said to commit "rape" if he -
....
....
....
.....
under the circumstances falling under any of the following seven descriptions:-
First. - ....
Secondly. - Without her consent.
Thirdly. - ....
Fourthly. - ....
Fifthly. - ....
Sixthly. - ....
Seventhly. - ....
Explanation 1. - ....
Explanation 2. - Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of
verbal or non-verbal communication,
communicates willingness to participate in the
specific sexual act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as
consenting to the sexual activity".
(I) CASE LAW
a) In the case of "Pradeep Kumar @ Pradeep Kumar Verma vs State of Bihar FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 12 of 26 and Anr., Crl. Appeal No.1086 of 2007 decided on 17.08.2007, Hon'ble Supreme Court held as under:-
10. In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines consent as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side.
Jowitt, while employing the same language added the following:
Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.
In words and Phrases, Permanent Edn., Vol.8- A, the following passages culled out from certain old decisions of the American courts are found:-
Adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.
b) In "AIR 2012 Supreme Court 2281, titled as Narender Kumar vs State (NCT of Delhi), the Hon'ble Supreme Court has held that :-
The courts while trying an accused on the FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 13 of 26 charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case, the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and can not take support from the weakness of the case of defence. However, great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against accused by reliable evidence. The accused is entitled to the benefit of doubt.
Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of the defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecution on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 14 of 26 rejected.
The court must act with sensitively and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasions complained of.
20. In the light of above discussed principles of law, I propose to examine the evidence available on record whether in the present case accused committed sexual assault upon the prosecutrix or not.
FINDINGS:
21. In the present case, accused was put on trial on the charges that in between 01.04.2013 at about 8:00 pm. to 02.04.2013 till at about 1:00 am, he on the pretext of being a tantrik came to the house of persecutrix and on the pretext of performing some puja/havan, he locked the family of prosecutrix in a separate room and during the puja/havan, prosecutrix become unconscious and he sexually assaulted her.
22. In the complaint/ statement Ex.PW4/A it has been alleged that the husband of the prosecutrix was working as clerk with an advocate and she used to be perplexed/irritated and she used to feel that somebody was throttling her. She told this fact to her husband and her husband told that she would be treated by some tantrik. Thereafter, on 30.03.2013 her husband called the present accused who was resident in the neighbourhood and after examining the prosecutrix, the accused told that some spirit/ghost are there and he would treat the prosecutrix for the same. The next day, accused came at her FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 15 of 26 house and told that he had to massage. On this prosecutrix agreed and on that day accused made oil massage and told that he would come again tomorrow. At about 8:00 pm on 01.04.2013, accused came. He got the puja samagri brought by her husband. Thereafter, he asked the prosecutrix to sit in veranda and not to wear any other cloth except maxi. Thereafter, prosecutrix came out of the room in maxi and sat in the veranda. Thereafter accused asked her family to go inside the room and locked the room from outside. Thereafter, accused started performing havan and after sometime he lifted the maxi of the prosecutrix and started fondling with her breasts and other private parts of the body and when the prosecutrix tried to stop him she became unconscious and fell. While she was becoming unconscious she felt that the accused was lying on her body and she also felt that something was being done by the accused in her private parts. When she regained her consciousness, she found her entire family present before her and the accused had already left.
23. In her statement U/s. 164 Cr.P.C. Ex.PW4/D, she reiterated almost the same fact and has further stated that when she came after wearing the maxi, she became unconscious after sometime, her husband saw from the hole of the door that the accused was doing wrong with her and was establishing physical relationship with her, her husband tried to open the door and in the process, the kundi of the door got broken and accused ran away from there. She has further stated that when she regained her consciousness, she felt giddiness in her body and felt that somebody had done wrong with her. Her husband told her the name of the accused as Hira Lal.
24. It is to be noted here that in her complaint, she has stated about the incident that she herself had seen accused lying upon her and she felt that something wrong being done by the accused while she was becoming unconscious and FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 16 of 26 even she asked the accused to stop it but became unconscious. However, in her statement before Ld. MM she has stated that her husband saw the wrong being committed by the accused and she only felt about the same wrong act after regaining her consciousness.
25. In her examination-in-chief before the court, prosecutrix/ PW4 has reiterated about the facts as stated in the complaint and in her statement U/s. 164 Cr.P.C. She has further deposed that on 01.04.2013, the accused had also come in the afternoon and went with her husband to feed the birds. She has further deposed that accused asked her to wear the maxi with no undergarment and to come for puja. She has further deposed that accused started fondling with her breast and other parts of her body and she was unable to resist as she was almost in unconscious state and thereafter, accused lifted her maxi and committed sexual assault upon her and thereafter she became unconscious. It is to be noted here that in her examination-in-chief she has improved her version regarding the sexual assault as in her examination-in-chief she has deposed that she herself had seen the accused committing the sexual assault upon her while in her complaint Ex.PW4/A and in her statement Ex.PW4/B she has not stated this fact that she had not stated that she had seen the accused committing rape.
26. In her cross-examination, she has testified that her husband PW1 told to the police about the incident as she was unconscious and voluntarily stated that she disclosed the incident to the police after regaining consciousness after about 2-4 hours. However, in her further cross-examination, she has stated that when the police arrived at her house she was in semi conscious condition. She has categorically admitted in her cross-examination that she fell unconscious when accused started performing havan and she does not know what accused did with her. She though has claimed in her cross-
FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 17 of 26 examination that she told to the Ld. MM about the incident of fondling with her breast and other parts of her body, but on confrontation this statement given in examination in chief of prosecutrix was found not recorded in her statement Ex.PW4/B. Further, she claimed that she had told to the ld. MM that accused lifted the maxi and had forcibly committed rape but on confrontation with her statement Ex.PW4/D it was found that this statement was not given by her. Even the statement that her husband seen the whole incident from the hole in door or the room was not found in her statement Ex.PW4/A. It is to be noted that there are contradiction in the version of the prosecutrix in her different statement regarding incident of sexual assault by the accused.
27. In her further cross examination, the prosecutrix/PW4 has admitted that accused had massaged number of times to her and there was due of Rs. 1650/- towards the massage and massage material. She has further stated that on the date of incident, accused visited her house to demand outstanding amount for the massage and its material and to avoid making payment of the outstanding amount, accused has been falsely implicated in the present case. Thus, this admission of the prosecutrix itself belies the entire prosecution story of forcible sexual assault by the accused.
28. Further more, from the statement/testimony of the prosecutrix, it appears that she was wearing maxi only at the time of puja/havan but this version of the prosecutrix story appears to be false. In her examination in chief itself the clothes were produced and prosecutrix identified one maxi, one bra, one salwar as the wearing clothes at the time of incident and this fact itself belies the entire story of the prosecution. When according to prosecutrix she was only wearing maxi, there is no question of seizing the other two clothes. It appears that the prosecutrix was also wearing salwar on that very day and FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 18 of 26 her version that accused committed sexual assault after lifting her maxi appears to be doubtful. There is no explanation in the entire testimony of the witnesses as to how, when the prosecutrix has claimed to have wore only maxi, other two clothes were seized as wearing clothes at the time of incident.
29. According to the prosecution story, the prosecutrix became unconscious when the havan/puja has started and she regained consciousness after 2-4 hours. However, there is no medical evidence or forensic evidence to support the version of the prosecutrix. A person cannot remain unconscious for about 2-4 hours without administering intoxicating substance or if she was suffering from any serious ailment. There is no medical evidence or forensic evidence that the prosecutrix was suffering from any serious ailment or she became unconscious due to intoxication.
30. In her cross-examination DW4 has admitted that there was one flower pot in the veranda and her family used to light up agarbatti in their house and thus the recovery of flower part as havan kund with ashes cannot be said to be only because of havan performed by the accused.
31. According to prosecution story, havan was done in the veranda. The prosecutrix has admitted in her cross-examination that one person Vikram was residing in the other room which was besides her room and was present when police reached at her house. As per prosecution story, the time of incident is stated to be in the night at about 8:00 pm to 1:00 am. Mr. Vikram has not been examined on behalf of prosecution nor he has not been arrayed as a witness though it has come on record in the testimony of prosecutrix/PW that the open verandah where the havan was performed is clearly visible from the room of the Vikram. It is further come on record that there was one FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 19 of 26 common passage of about 2-2-1/2 feet outside the room of the prosecutrix and the house of the said Vikram. Though prosecutrix has claimed that photographs of the scene/place of incident were taken by the police, however as a matter of fact no photographs has been placed on record during the trial.
32. The veracity of the prosecutrix testimony further becomes doubtful when she was cross examined on dated 04.03.2015 and altogether changed the profession of PW1 and deposed that he was working in a hotel. She has further admitted that police has made the site plan on its own and not at her instance.
33. Witness PW1/husband of the prosecutrix has stated that on 30.03.2013 the accused came to his house at about 8:00 pm uninvited and talked to his wife/PW4 and informed that she was under the spell of some ghost and assured that he would be able to treat her. However, he has contradicted PW4 on the point of bringing the puja samagri. According to him, the accused came to his house at about 8:00 pm on 01.04.2013 alongwith puja samagri. He has also deposed in his examination-in-chief that the accused asked his wife to attend the havan only in maxi. He has further deposed he remained inside the room for about ten minutes but became anxious when he observed that no sound is emanating from outside and chanting of mantras had stopped. He further deposed that he peeped from the hole of the door and found that accused had lifted the maxi of his wife and accused was over his wife and doing something and he got suspicious and tried to open the door but he found that it was locked from outside and he forced the door to open it and came outside and saw the prosecutrix lying on the floor without any clothes and in unconscious state. He has further deposed that accused appeared to have sexually violated his wife/PW4 and he made a call to the police and put the same maxi on the body of his wife to cover her and also FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 20 of 26 took spare clothes for her and her wife when she was removed in the PCR gypsy to the Safarjung Hospital. Thus, in his examination itself it appears that this witness himself is not sure whether there was any sexual assault upon the prosecutrix or not by the accused. This witness has also reiterated that his wife was only wearing maxi and she was taken to the hospital in the maxi only. Thus, the recovery and seizure of cloths should have been only maxi. However, as discussed earlier in the present case, three clothes were seized as wearing clothes at the time of incident. Thus, his testimony this further raises the suspicion over the prosecution story regarding commission of sexual assault by the accused while lifting the maxi.
34. In his cross-examination PW1 has also admitted that one Vikram was residing with the family in the neighbouring house and passage between his house and the house of the Vikram was common. Interestingly, this witness in his further cross examination stated that Vikram was not present at the time of incident and on voluntary examination, he has stated that Vikram was residing alone and thus, has contradicted his own version that he was residing with his family in the neighbouring house. It is to be noted here that this witness is a clerk of practicing advocate and witness himself has admitted that by now he has acquired some idea about the court matters.
35. Witness PW1 had contradicted the witness PW4 on the point that there was no relief after massage to PW4 on 31.03.2013 is on one hand PW4 has stated that she did not feel any relief, however PW1 has testified that his wife was feeling some better after the massage.
36. It is further stated by PW1 on the point of his presence in the Court that at the time of recording of statement of prosecutrix U/s.164 Cr.P.C., he was not present in the Court while he has admitted in his cross-examination that he FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 21 of 26 did also come with prosecutrix/PW4. He has also contradicted the version of PW4 stating that the site plan was not prepared at his instance though PW4 has stated that it was prepared at the instance of PW1.
37. PW1 has contradicted himself in his cross-examination on the point of seeing the incident. He has testified in his cross-examination that he cannot see up to what height the accused has lifted the maxi of his wife when he peeped from the hole and particularly stated that it was dark though in his examination in chief he has categorically deposed that he peeped through the hole in the door, he found that accused has lifted the maxi of his wife. PW1 has contradicted PW4 on the issue of her gaining consciousness. While PW4 has deposed that she regained consciousness after reaching the police but PW1 has stated that PW4 was conscious when the police reached at his house. He further contradicted the version of prosecutrix on the issue of residence of the accused. The prosecutrix has stated that the accused was residing in the neighbourhood, however, PW1 has denied the suggestion that he was acquainted with the accused Hira Lal because he used to reside in the same locality. It is to be noted here that in the prosecution story particularly about the incident of sexual assault it is stated that PW1 has seen the commission of offence from the hole in the door and this version has been reiterated by PW11 W/SI Asha, second IO as well as PW8 SI Mohd. Swalay who was the first IO. However, as a matter of fact no photographs of that door has been placed on record nor the position of the door has been shown in the site plan Ex.PW4/C. On the other hand, PW8 has stated that he had not shown the said hole to the PW11 but on the other hand PW11 in her cross-examination has stated that PW8 had told her the place/ position from where PW1 has seen the whole incident. Thus, both the IOs have contradicted the version of each other. PW11 has further admitted that the said place/hole was not photographed nor the said hole was shown in the FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 22 of 26 site plan. Thus the prosecution story that PW1 had seen the offence from the said hole appears to be doubtful.
38. There is no corroboration to the testimony of the prosecutrix. Even medical/forensic evidence i.e. Ex.PW9/A and Ex.PW9/B does not support the case of prosecutrix as any possibility of intoxication has been ruled out in these reports.
39. FSL report Ex.PW10/A also does not support the prosecutrix version as it was opined that since there is no male/complete DNA profile generated from the Exhibit '3e(i)' i.e. micro slide of victim and therefore, it could not be compared with that of exhibit '2' i.e. gauze cloth piece of accused. Thus the forensic report also does not support the version of the prosecutrix of the sexual assault upon the prosecutrix.
40. There is discrepancy/ contradiction regarding the payment of room rent in the testimony of PW1 and PW4. They have stated different versions regarding payment of rent.
41. In this case there are two contradictory evidence available on record. It is settled law that if two views are possible on the evidence available on record, one pointing out the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In this regard reliance is placed upon the case reported as "2014 IV AD (S.C.) 33, Basappa vs State of Karnatka".
42. The Hon'ble Supreme Court further held in "AIR 1974 344. Harchand Singh and Another vs State of Haryana" as under:-
FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 23 of 26 "11. The function of the court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be unreliable, the result would necessarily be that the court wold be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation".
43. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. In this case also, the evidence of the prosecutrix is suffering FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 24 of 26 from serious infirmities and inconsistencies with other material and she had also made deliberate improvements/concealments on material point including forceful physical relationship in her testimony before the Court. It appears that the present complaint has been lodged when the accused demanded his arrears for massage. The FSL report does not support her version. There is contradiction in the testimony of prosecutrix/PW4, her husband PW1, First IO PW8 and Second IO PW11 regarding the manner of incident, seizure of wearing clothes of the prosecutrix, presence of her neighbour Mr. Vikram and acquaintance of the PW1 with accused, however FSL report does not support the prosecution story when prosecutrix was medically examined immediately after the incident and thus, there was possibility that there must be scientific/ forensic evidence available so as to connect the irrelevant of the accused regarding the offences he was charged with.
44. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
45. Thus, in view of the aforesaid discussions, it is held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Hira Lal stands acquitted for the said offences. He is directed to furnish fresh bail bond in the sum of Rs.20,000/- in terms of FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 25 of 26 section 437A Cr.P.C.
At this stage, fresh bail bond furnished u/s.437-A of CrPC on behalf of accused is filed and accepted for a period of six months.
File be consigned to the Record Room after due completion.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/09.03.2017 Announced in open court on 09.03.2017 (Total number of page 26) (One spare copy attached) FIR No.36/13 State vs. Hira Lal PS South Campus U/s 354/376 of IPC 26 of 26