Delhi District Court
9 vs The State (Delhi Admn.) on 11 February, 2016
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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 : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
State
Versus
Mr. Randhir Kumar Ojha,
Son of Mr. Paramhans Ojha
First Information Report Number : 83/2013
Police Station Khayala
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 25.04.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 02.05.2013.
Arguments concluded on : 11.02.2016.
Date of judgment : 11.02.2016.
Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. Deepak Sharma.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission
for Women.
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Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala,
Under section 376 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? Without 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. Rape is a dark reality in Indian society like in any other nation. 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, as the accused is the owner and landlord of the premises where the proseutrix resides with her family.
PROSECUTION CASE
2. Mr. Randhir Kumar Ojha, the accused, has been charge sheeted by Police Station Khayala, Delhi for the offences under sections 376 Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 13.12.2012 in the afternoon at the house owned by the accused (address mentioned in the file and withheld to protect the identity of the prosecutrix as she also resides with her family in the same house at a different floor) at Raghubir Nagar, Delhi, on the 05th floor of the house, within the jurisdiction of Police Station Khayala, he forcibly committed rape on the prosecutrix (name mentioned in file and withheld to protect her identity) against her consent.
CHARGE SHEET AND COMMITTAL
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 25.04.2013 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 02.05.2013.
CHARGE
4. After hearing arguments, charge for offence under section 376 of the IPC was framed against the accused vide order dated 13.05.2013.
PROSECUTION EVIDENCE
5. In order to prove its case, the prosecution has examined as many as 16 witnesses i.e. the prosecutrix, as PW1; Ms. Shashi Bala Pahuja, FSL Expert as PW2; HC Sudharshan Kumar, the Duty Officer who Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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had recorded the formal FIR of the case as PW3; SI Hansraj, who recorded the DD as PW4; Ct.Kaushal Kumar, who received the rukka from duty officer and handed over to IO, as PW5; HC Kuldeep Singh, the MHMC, as PW6; Ct. Raj Singh, witness of investigation, as PW7; Ct. Sandip Kumar, who had deposited the case property in the FSL, as PW8; Dr. Anurag Ashoka, who had medically examined prosecutrix, as PW9; Mr. Murlidhar Upadhyaya, father of the prosecutrix, as PW10; Ms.Krishna, mother of the prosecutrix, as PW11; Dr. Rajesh Kohli, who has proved the MLC of accused in place of Dr. Rishi, as PW12; Dr. Sumana Banjerjee, who has examined the prosecutrix, as PW13; SI Sarita, the Investigation Officer of the case; Dr.Sumana Banerjee, who had medically examined the prosecutrix, again as PW15; and Dr.Suresh Kumar, also as PW15.
6. The accused have preferred not to cross examine PWs 2, 3, 4, 5, 6, 7, 8, 9, 12, 13 and 15 (Dr.Sumana Banerjee) due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
STATEMENT OF ACCUSED UNDER SECTION 313 OF THE CR.P.C. AND DEFENCE EVIDENCE
7. In his statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him and submitted that he am innocent and he has not committed any offence. He has been falsely implicated in the present case. The Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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witnesses have deposed falsely. The prosecutrix and her family wanted to grab his property and were not paying any rent since last 8-10 years. When he asked them to vacate the tenanted premises, they have falsely implicated him in the present case, as the father of the prosecutrix demanded a sum of Rs. 15 Lacs to vacate the premises. The father of the prosecutrix who was working under him, has developed professional enmity with him. He wanted to grab his property as well as his clients. When he asked him to vacate the premises as his family was about to shift Delhi, he and his family connived together to lodge the present false and fabricated complaint against him.
8. Accused has preferred to lead evidence in his defence and have examined Mr. Subhash Bidlan as DW1 and himself as DW2.
ARGUMENTS
9. 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.
10.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offences under section 376 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.
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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11.The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is an unexplained delay in the lodging of FIR. The complaint made by the prosecutrix is concocted. The prosecutrix has given false evidence. The evidence of the prosecutrix as well as other prosecution witnesses is unreliable as it suffers from various contradictions, improvements and inconsistencies. The investigation has not been properly conducted.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
12.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 Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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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 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.
13.Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
14.The prosecution story unveils with the prosecutrix (PW1) calling at Woman Help Line on 10.03.2013 regarding which DD No.28 A Police Station Khyala (Ex.PW14/D) was registered and SI Sarita (PW14) alongwith one male police official came to her house and inquired about incident. On the dictation of the prosecutrix (PW1), Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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her younger sister Sugandha had written a complaint (Ex.PW1/A) addressed to SHO, PS Khyala and she signed the same after going through the contents. The prosecutrix also disclosed that she had been raped by the accused, her landlord, about two months ago on the fifth floor of the house at Raghubir Nagar, Delhi. SI Sarita (PW14) was assigned investigation. She wrote the rukka (Ex.PW14/A) on the complaint and sent the SI Emergency officer for lodging of the FIR. Ct. Sudehrsan (PW3) duty officer lodged the FIR (Ex. PW3/A), made his endorsement on the rukka (Ex.PW3/B) and issued certificate under section 65 B Evidence Act (Ex. PW3/C). On 10.03.2013, Ct. Kaushal Kumar (PW5) was handed over a rukka and copy of FIR of the present case by the duty officer HC Sudershan Kumar (PW3) for giving the same to IO/ASI Sarita (PW14). Ct. Raj Singh (PW7) was already at the spot with the Emergency Officer and he had been told to remain with the accused, who was also present at the spot of occurrence.
At the instance of prosecutrix, IO/SI Sarita (PW14) prepared the site plan which is (Ex.PW14/B). The counsellor from the NGO was called and she counselled the prosecutrix (PW1). The prosecutrix (PW1) was taken to DDU hospital for her medical examination where she was medically examined by Dr. Anurag Ashoka (PW9) under the supervision of Dr. Rishi, EMO vide MLC (Ex. PW9/A) and on 10.03.2013 Dr. Sumana Banerjee (PW15) had also medically examined the prosecutrix (PW1) and admitted her in Labour Room 2 and she (the prosecutrix) under went D & E (Dilatation and evacuation). She handed two samples Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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i.e. product of conception for histopatholgy and second for products of conception for DNA and handed over to the IO/ASI Sarita (PW14) sealed pullandas and one sample seal to IO/SI Sarita (PW14) which she seized vide seizure memo (Ex.PW14/C). The accused was arrested vide arrest memo (Ex.PW7/A) and his personal search was prepared vide personal search memo (Ex.PW7/B). He confessed his crime vide his disclosure statement (Ex.PW7/C). He was kept in the lock up on the same night and on the next day, he was produced before the Court of the learned Metropolitan Magistrate from where he was remanded to judicial custody for 14 days. The accused taken to DDU hospital by Ct. Raj Singh (PW-7) for his medical examination where he was medically examined by Dr. Rishi vide MLC (Ex.PW12/A). The MLC has been proved by Dr. Rajesh Kohli (PW-12) and the doctor handed over two sealed pullandas and one sample seal to Ct. Raj Singh, who handed the same to IO/SI Sarita (PW14) which she seized vide seizure memo (Ex.PW7/D). On14.03.2013, a copy of the Secondary School Examination Certificate (Mark A) showing the date of birth of the prosecutrix (PW1) was handed over to IO/SI Sarita (PW14) by the prosecutrix. IO/SI Sarita (PW14) recorded the statement of the prosecutrix at her residence and also recorded the statements of Mr. Murlidhar Upadhyaya (PW10) and Ms. Krishna (PW11), her parents. She had also recorded the statement of all the police officers and officials who were associated in the investigation. On 10.03.2013, IO/ASI Sarita (PW14) had deposited with HC Kuldeep Kumar (PW6) MHCM- four sealed pullandas Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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along with two sample seals of the hospital and HC Kuldeep Singh (PW6) had made the entry of the same in register no. 19 at serial no. 815 (Ex.PW6/A) and IO/ASI Sarita had also deposited the articles recovered from the personal search of the accused. On 11.3.2013, Ct. Sandeep (PW8) received the case property and deposited the same in the office of FSL vide RC no. 29/21/13 (Ex.PW6/B) and deposited in the office of FSL vide acknowledgement (Ex. PW6/C). The exhibits of this case were examined by Ms. Shashi Bala Pahuja (PW2) in the office of FSL vide her report (Ex. PW2/A).
15.The allegations against the accused are that on 13.12.2012 in the afternoon at the house owned by the accused (address mentioned in the file and withheld to protect the identity of the prosecutrix as she also resides with her family in the same house at a different floor) at Raghubir Nagar, Delhi, on the 05th floor of the house, within the jurisdiction of Police Station Khayala, he forcibly committed rape on the prosecutrix (name mentioned in file and withheld to protect her identity) against her consent.
IMPORTANT ISSUES
16.The important issues and the points in dispute are being discussed hereinafter.
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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IDENTITY OF THE ACCUSED
17.There is no dispute regarding the identity of the accused Mr.Randhir Kumar Ojha who has been identified in the Court by the prosecutrix (PW1), Mr.Murlidhar Upadhyaya (PW10), Ms.Krishna (PW11), Ct. Raj Singh (PW7), and the Investigation Officer SI Sarita (PW14). It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR. Accused is also named in the complaint (Ex.PW1/A) and the FIR (Ex.PW3/A).
18.Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
19.There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint (Ex.PW1/A), her MLC (Ex.PW9/A) and in her evidence before the Court, the prosecutrix has mentioned her age as 21 years. As per the prosecution, she was a major at the time of the alleged incident.
20.Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
21.Dr.Rishi had medically examined the accused vide MLC (Ex.PW12/A) which has been proved by Dr.Rajesh Kohli (PW12).
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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22.It is mentioned in the MLC of the accused (Ex.PW12/A) that "There is nothing to suggest that the pt cannot perform sexual act".
23.Even on physical examination, the doctor has found that the private parts of the accused to be well developed. There is nothing on the record to show that the accused is impotent or medically incapable of committing the offence of rape.
24.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 FORENSIC EVIDENCE
25.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.
26.The Additional Public Prosecutor has argued that the medical and forensic evidence is only for corroboration.
27.It can be seen from the MLC of the prosecutrix (Ex.PW9/A) which is dated 10.03.2013 at 04:00 pm that she does not have any external or internal injuries. She had told the doctor that she was sexually Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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assaulted by the accused at 13.12.2013. She conceived after the incident and she aborted on 02.03.2013 in City Clinic. She was admitted for D & E.
28.As per the FSL report (Ex.PW2/A), "The DNA profile generated from the source of exhibit '3' (blood stained gauze piece of accused) could not be compared due to non-availability of DNA from the source of exhibit '2' (fleshy material). The DNA profile generated from the source of exhibit '3' (blood stained gauze piece of accused) has been preserved in the laboratory if required in future"
29.The accused has denied having any physical relations with the prosecutrix.
30.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 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.PW9/A), the Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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probability is that rape is not committed.
31.However, as the MLC was prepared on 10.03.2013 and the alleged incident occurred on 13.12.2012, there could be no possibility of any injury on the prosecutrix after so much time.
32.Further, due to non-availability of DNA from the source of exhibit '2' (fleshy material), the DNA profiling could not done due to which there is no forensic evidence against the accused.
33.The prosecution has also failed to produce any medical record of the prosecutrix that she was pregnant, got her pregnancy test conducted, took medicine for abortion etc i.e. all the medical record prior to the police taking her for her medical examination.
34.Although there is nothing incriminating against the accused in the medical evidence produced by the prosecution, but per se, the ocular and oral evidence as such cannot be ignored, and lack of medical evidence does not indicate that the accused is innocent.
35.There is nothing incriminating against the accused in the medical and forensic evidence produced by the prosecution.
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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DELAY IN FIR
36.The alleged incident occurred on 13.12.2012 in the afternoon. The FIR (Ex.PW3/A) has been registered on 10.03.2013 at 13:05 hours (01:05 pm). DD No.28 A dated 10.03.2013 (Ex.PW14/D) was prepared at 11:00 am when the prosecutrix (PW1) informed the police of the incident.
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. It has been submitted that the FIR was lodged by the prosecutrix after due deliberation and consultation with her family.
38.The contention of the prosecution is that there is no delay in lodging the FIR as the prosecutrix lodged the complaint as early as possible. The prosecutrix (PW1) has explained in her examination in chief that "After 2-3 days my mother came back from maternal uncle (mama) house. I told her that accused Randhir Kumar Ojha had teased me (chedkhani ki) but not told her about the rape committed by accused as I was too scared and as accused was having family relations with our family and I used to treat him as elder brother/father...... After about two and half months, as I was feeling uncomfortable that is having vomiting sensation I talked to my friends but did not disclose them about the incident of rape. They advised me to verify if I was pregnant by using the pregnancy test kit which is easily available in the market. I Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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purchased pregnancy test kit from a near by medical shop and did my urine test. However as I was not confirmed about the result, I went to C.T Clinic situated in our area and the doctor concerned told me that the report was positive. I came back home and after 1-2 days I purchased some medicines for abortion from the chemist due to which abortion had taken place. Till then I had not disclosed about the incident of rape to my parents and family. After 2-3 days my condition became serious as I was bleeding heavily and was in pain. Then I narrated the whole incident of rape to my mother and my mother advised me to lodge complaint against the accused. I called at Woman Help Line on 10.03.2013..."
39.The prosecutrix has also deposed that "I had written the complaint Ex. PW1/A. Again said as I was not in a condition to write myself at that time, my sister namely Ms. Sugandha had written the complaint on my instructions and thereafter I had signed on the same."
40.In her MLC (Ex.PW9/A), the prosecutrix had told the doctor that she was sexually assaulted by the accused at 13.12.2013. She conceived after the incident and she aborted on 02.03.2013 in City Clinic.
41.As per the evidence of the prosecutrix, the accused had left after one or two days for his native place, returned to Delhi with his wife Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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and sister in January, 2013 for 15 days and then again went to his native place with his wife. Despite living in a residential area, the prosecutrix did not raise any alarm or shout of help at the time of the alleged incident and even thereafter.
42.It is clear from the record that the prosecutrix did not disclose about the alleged incident of 13.12.2012 to her mother on her return after 2-3 days of the incident, to her family and friends when she allegedly became pregnant and when she allegedly aborted on 02.03.2013 and till 10.03.2013. No explanation is coming forth from the prosecutrix and the prosecution as to why she waited from 13.12.2012 to 10.03.2013 to make a complaint to the prosecutrix. She was not under pressure of the accused as he was not in Delhi since he left after one or two days of the incident. The prosecutrix preferred to remain silent even after she came to know that she was pregnant and even after her abortion. When ultimately, she called the police on 10.03.2013, it was her sister who had written the complaint.
43.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 Sessions Case Number : 103 of 2013.
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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.
44.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.
45.In the case reported as State of Rajasthan v. Om Prakash, (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.
46.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 Sessions Case Number : 103 of 2013. Unique Case ID Number : 02401R0201842013. FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code. State v. Randhir Kumar Ojha -:: Page 18 of 71 ::-
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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.
47.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 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."
48.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 Sessions Case Number : 103 of 2013. Unique Case ID Number : 02401R0201842013. FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code. State v. Randhir Kumar Ojha -:: Page 19 of 71 ::-
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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"
49.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"
50.Here, the judgment of the hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.
51.The prosecutrix and the prosecution have not been able to justify the delay and why the prosecutrix did not report the matter Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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immediately or earlier. No logical explanation has been furnished by the prosecution for the delay, as elaborated above.
52.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.
53.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.
EVIDENCE AND STATEMENT OF THE PROSECUTRIX
54.PW1, the prosecutrix, has deposed that in the year 2012, she was doing B.A (II year). On 13.12.2012, during noon hours, she was present in her house. Her mother had gone to her maternal uncle's house and her father was out for his work. She was alone in her house. She knows accused Randhir Kumar Ojha as we belong to same village and he was working with her father. Her father is a Pandit and accused Randhir Kumar Ojha was also doing the work Sessions Case Number : 103 of 2013.
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of Pandit with her father. They were residing on the fourth floor of the house and accused Randhir Kumar Ojha was residing on the fifth floor of this house. Accused Randhir Kumar Ojha used to take meals in their house only as he was having family relations with them and she used to tie Rakhi to him. Accused Randhir Kumar Ojha was married, however, his family was living in his native village and not residing in their house. At about 12:00 noon / 01:00 p.m., on 13.12.2012, accused Randhir Kumar Ojha came to their house and he told her to prepare tea and thereafter went upstairs i.e. fifth floor. After preparing tea, she went to fifth floor and gave a cup of tea to accused. He had put cup of tea on one side and caught hold of her hand and started pressing it. Thereafter, accused Randhir Kumar Ojha forcibly raped her. She tried to raise alarm, however, the accused overpowered her. He pushed her on the mattress which was spread on the floor of the room, untied the string of pajami worn by her, lowered it and thereafter he lay on her and forcibly raped her. Accused was wearing dhoti kurta at that time, he had raised his dhoti and did wrong act. She tried her level best to resist the accused, however, due to trauma, pain and the force used by the accused, she could not stop him nor she was able to raise any alarm. After this incident, she was scared and perturbed so she came to her floor and closed the door of her floor. Accused Randhir Kumar Ojha also came downstairs and started knocking at the door of her floor. She told him to go away upon which he started threatening her, he said he will defame her (usne kaha tumhari padhai chudwa donga, tumhare bare me sabko bata donga, Sessions Case Number : 103 of 2013.
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tumhari badnami karva donga). As it was time for return of her brother and sisters, the accused went back upstairs. When her younger brother and sister came from school, she went to washroom. She had not disclosed about this incident in the family as she was mentally disturbed and shocked due to this incident. After 2-3 days, her mother came back from maternal uncle (mama) house. She told her that accused Randhir Kumar Ojha had teased her (chedkhani ki) but not told her about the rape committed by accused as she was too scared and as accused was having family relations with their family and she used to treat him as elder brother/father. In the evening, on that day, her mother asked the accused about the eve-teasing done by him. However, instead of replying to that, the accused started complaining about her. He told her mother that her education should be stopped as she roamed with boys in the college (iski padai chudwa do yeh ladko ke saath college me ghumti hai). Thereafter, she stopped talking to the accused and he also stopped taking meals in their house. After one- two days, the accused had gone to his native village. Next month, she missed her period. Normally, she was having irregular periods and therefore, did not take it seriously. After about two and half months, as she was feeling uncomfortable that is having vomiting sensation, she talked to her friends but did not disclose to them about the incident of rape. They advised her to verify if she was pregnant by using the pregnancy test kit, which is easily available in the market. She purchased pregnancy test kit from a near by medical shop and did her urine test. However, as she was not Sessions Case Number : 103 of 2013.
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confirmed about the result, she went to C.T Clinic situated in their area and the doctor concerned told her that the report was positive. She came back home and after 1-2 days, she purchased some medicines for abortion from the chemist due to which abortion had taken place. Till then, she had not disclosed about the incident of rape to her parents and family. After 2-3 days, her condition became serious as she was bleeding heavily and was in pain. Then she narrated the whole incident of rape to her mother and her mother advised her to lodge complaint against the accused. She called at Woman Help Line on 10.03.2013 and thereafter, SI Sarita alongwith one male police official came to their house and inquired about incident. On her dictation, her younger sister Sugandha had written a complaint addressed to SHO, Police Station Khyala (Ex. PW1/A) and she signed the same after going through the contents. Thereafter, SI Sarita had taken her to DDU hospital where she was medically examined. Thereafter, she was admitted in DDU hospital as her condition was serious i.e. bleeding was not stopping and it was incomplete abortion. She remained admitted in DDU hospital till 13.03.2013 and thereafter, was discharged from the hospital. After she was taken to DDU hospital, the accused was arrested by the police. She has prayed that the accused may be punished for the offence he has committed against her.
55.The prosecutrix, in her complaint (Ex.PW1/A), has stated that she along with her parents and siblings were living in a house (address mentioned in file and withheld to protect the identity of the Sessions Case Number : 103 of 2013.
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prosecutrix) at Raghubir Nagar, Delhi. She has five sisters and one brother. She is the third child of her parents and is aged about 21 years. Her date of birth is 01.04.1992 and is student of B.A (II) year. She is living in the said house since 8 years. She is living on IV floor of the house and Mr. Randhir Ojha is landlord of the said house. She is native of village (name of village mentioned in file and withheld to protect the identity of the prosecutrix) Bihar. On 13.1.2012, there was no one in her house and college vacations were going on. She was alone in the house. Accused Rahdhir Ojha also belongs to their village and used to take food with them and his whole family lives in village. He is living at 5 th floor of the house. Accused Randhir Ojha told her to make a tea for him and she had gone to 5th floor to give him a tea. It was afternoon time.
The accused had held his hand, pushed her down and raped her forcibly. She was perplexed at that time and her mental condition was bad. She told about her mother, after four days of the incident, that the accused had teased her. Accused had raped her only once. After that, in a month, she came to know that she is pregnant and got her check up from C.T Clinic and came to know that she is pregnant where she was given her medicine and injection and the abortion had taken place. This abortion was with her consent. She wants to take action against the accused Randhir Ojha.
56.In DD No. 28 A dated 10.03.2013 Police Station Khayala (Ex.PW14/D), the prosecutrix informed the Women Helpline that she had been raped by the accused two days earlier. Sessions Case Number : 103 of 2013.
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57.In her MLC (Ex.PW9/A), the prosecutrix had told the doctor that she was sexually assaulted by the accused at 13.12.2013. She conceived after the incident and she aborted on 02.03.2013 in City Clinic.
58.It can be seen from the record that there are several unexplained contradictory and discrepancies in the different statements of the prosecutrix which are too major to be ignored and the same strike at the vry root of the prosecution story. Some of the major contradictions and dispcrepancies are enumerated herein below.
59.Although the offence in the complaint (Ex.PW1/A), MLC of the prosecutrix (Ex.PW9/A) and evidence of the prosecutrix before the Court is rape but the prosecutrix preferred to tell her mother that it is teasing (ched chad ki hai). If it was rape, then there was no reason why the prosecutrix did not inform her mother at the earliest regarding the rape and preferred to term it as "ched char" especially when she is an educated girl and is presumed to understand the difference. Neither the prosecutrix nor the prosecution have been able to explain this contradiction which is too major to be ignored and also strikes at the very root of the prosecution story.
60.Although, in the complaint (Ex.PW1/A), MLC of the prosecutrix (Ex.PW9/A) and evidence of the prosecutrix before the Court, the Sessions Case Number : 103 of 2013.
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prosecutrix has stated that the accused had raped her on 13.12.2012 but in DD No. 28 A dated 10.03.2013 Police Station Khayala (Ex.PW14/D), the prosecutrix informed the Women Helpline that she had been raped by the accused two days earlier. Neither the prosecutrix nor the prosecution have been able to explain this contradiction regarding the date of the alleged offence which is too major to be ignored and also strikes at the very root of the prosecution story.
61.Further, in the complaint (Ex.PW1/A), the prosecutrix has stated that she came to know regarding her pregnancy after a month but in her evidence before the Court, the prosecutrix has deposed that "Next month my period missed, normally I was having irregular periods and therefore did not take it seriously. After about two and half months, as I was feeling uncomfortable that is having vomiting sensation I talked to my friends but did not disclose them about the incident of rape. They advised me to verify if I was pregnant by using the pregnancy test kit which is easily available in the market. I purchased pregnancy test kit from a near by medical shop and did my urine test. However as I was not confirmed about the result, I went to C.T Clinic situated in our area and the doctor concerned told me that the report was positive". In her cross examination, the prosecutrix has deposed that "I had started feeling weak and felt like vomiting due to which I came to know that I was pregnant. It was probably in February- March, 2013." Neither the prosecutrix nor the Sessions Case Number : 103 of 2013.
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prosecution have been able to explain this contradiction, regarding when the prosecutrix came to know about her pregnancy, which is too major to be ignored and also strikes at the very root of the prosecution story.
62.Further, in the complaint (Ex.PW1/A), the prosecutrix has stated that after she came to know that she is pregnant, she got her check up from C.T Clinic and came to know that she is pregnant where she was given her medicine and injection and the abortion had taken place. This abortion was with her consent. However, in her evidence before the Court, the prosecutrix has deposed that "I went to C.T Clinic situated in our area and the doctor concerned told me that the report was positive. I came back home and after 1-2 days I purchased some medicines for abortion from the chemist due to which abortion had taken place." Neither the prosecutrix nor the prosecution have been able to explain this contradiction, regarding where and how the abortion of the prosecutrix took place, which is too major to be ignored and also strikes at the very root of the prosecution story.
63.In her cross examination, the prosecutrix has deposed that "I had stated to the police in my statement that my mother had gone to the house of my maternal uncle during the abovesaid period." However, the same is not mentioned in her complaint (Ex.PW1/A) and no explanation for the same is coming forth from the prosecution.
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64.In her examination in chief, the prosecutrix has deposed that "Accused Randhir Kumar Ojha also came downstairs and started knocking at the door of our floor. I told him to go away upon which he started threatening me, he said he will defame me (usne kaha tumhari padhai chudwa donga, tumhare bare me sabko bata donga, tumhari badnami karva donga)." In her cross examination, the prosecutrix has deposed that "I did not mention in my complaint Ex. PW1/A that after the incident of rape, I had come down to the fourth floor and close the door and thereafter the accused also came down, knock on my door and threatened to defame me." However, the prosecutrix, in her complaint (Ex.PW1/A) has not stated regarding the accused threatening her in any manner.
65.The prosecutrix, even after the date of alleged incident i.e. 13.12.2012, continued to live a normal life, went to college and appeared in her examination. She also was socializing with her friends from who she had enquired regarding the pregnancy home kit. She even continued attending her college when she came to know of her pregnancy, which she later aborted and even thereafter. She has deposed in her cross examination that "Probably, my vacation had commenced we.f 01.12.2012 but I do not remember the exact date. After the vacation my college may have reopened on 01.01.2013 and I had started going to my college in the first week of January, 2013. I continued to go to my college till May, Sessions Case Number : 103 of 2013.
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2013 when I had my semester exams again." Her father, PW10, has deposed that "It is correct w.e.f 13.12.2012 till today my daughter has been going to college, to the temple attending family functions etc." The prosecutrix has claimed to be mentally upset and scared but in such a situation, could she have attended her college continuously appears to be doubtful. If she has attended her college and behaved normally as well as attended family fuctions, etc, then it appears that the alleged incident did not occur and the case is false.
66.The prosecutrix has deposed that "as I was not in a condition to write myself at that time, my sister namely Ms. Sugandha had written the complaint on my instructions and thereafter I had signed on the same." However, the prosecution has not associated her sister in the present case and no explanation is coming forth regarding the same.
67.It may also be mentioned here that the accused has co-operated in the investigation and given his samples but the forensic report (Ex.PW2/A) does not support the prosecution and therefore, it cannot be said that the accused is responsible for the pregnancy of the prosecutrix which she had aborted (Prosecutrix underwent D & E, as deposed by PW15 Dr.Sumana Banerjee).
68.It would be relevant to mention here that the prosecutrix has claimed atht she was alone in her house on 13.12.2012 when the Sessions Case Number : 103 of 2013.
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alleged incident had occurred. However, it is revealed from her own evidence that her sister was also at home. She has deposed that "My younger sister namely Ms. Sugandha has appeared for B.A (Ist Year) exams. She attends the classes only on Sundays as she is in the Open Learning School." It is also clear that 13.12.2012 was a Thursday which indicates that the sister of the prosecutrix was at home. If her sister was at home and the prosecutrix is lying about the same, then the possibility that she has lied in the present case and levellled false allegations cannot be completely ruled out.
69.In her examination in chief, the prosecutrix has deposed that "He pushed me on the mattress..." but in her complaint (Ex.PW1/A) she has only mentioned that accused made her fall down "niche girakar" and then "The accused had pulled my hand due to which I had fallen down and while falling I had hurt my head although there was no bleeding." No such mattress has been recovered by the Investigation Officer and no explanation for the same is coming forth from the prosecution.
70.Also, the prosecutrix has deposed that "As my liver is not functioning property and my digestive system is slow, I am taking ayurvedic treatment from one Tibetian doctor near Nizammudin.
I do not remember the name of the doctor. I usually go to the doctor with my father who drives a motorcycle" but no such medical record has been produced and no explanation for the same is coming forth from the prosecution.
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71.Further, in her cross examination, the prosecutrix has deposed that "Presently father of the accused Mr. Paramhans Ojha is in Delhi and is staying with us in our house. It is correct that whenever he visits Delhi, he stays with us in our house and takes his meal with us. It is correct that I as well as my family have cordial relations with father of accused, even today. I do not know what were the talks between accused and my father when my father went to meet the accused in Jail in first week of April, 2013." Neither the prosecutrix nor the prosecution have been able to explain this part of her deposition regarding their terms with the father of the accused being cordial and the father of the prosecutrix visiting the accused in jail when the accused has allegedly raped the prosecutrix, and the same cannot be ignored as it points towards the innocence of the accused. These facts are also neither mentioned in the complaint (Ex.PW1/A) nor in the examination in chief of the prosecutrix and no explanation for the same is coming forth from the prosecution.
72.There are some more contradictions in the evidence of the prosecutrix and her other statements which are tabulated herein below.
DD No. 28-A Complaint Examination in chief Cross examination (Ex.PW14/D) (Ex.PW1/A) of the prosecutrix of PW1 (PW1) Do Din Pahle Rape Date mentioned is Date is 13.12.2012 No such mention kia hai 13.12.2012 Sessions Case Number : 103 of 2013.
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No such mention Waqt kareeb dopahar Specifically No such mention ke waqt rape kia mentioned 12.00 noon to 1.00pm on 13.12.212 No such mention Mummy ko 4 din baad After 2-3 days told No such mention chedkhani ke barey her about chedkhani mey bataya ki No such mention Uskey badd mujhey After two and half No such mention mahiney mey pata laga months came to know ki mae garbh se hu about pregnancy No such mention Check-up C.T.Clinic se Purchased pregnancy I had gone to CT karwaya, pata chala kit and did my urine Clinic but I do not garbh se hae, fir test. Not confirmed remember the name unhoney dawai, went to C.T.Clinic, of teh doctor. I had injection di-mera Doctor told me Test gone there only to garbhpaat hou gaya Positive, came home. confirm whether or After 1-2 days not I was pregnant.
purchased some The doctor has not
medicines for prescribed any
abortion from chemist medicines or
due to which injections.
abortions had taken
place
No such mention No such mention No such mention I told the I.O that on
13.12.12 my mother
had gone to the house
of my maternal uncle.
No such mention No such mention No such mention I told the I.O that I
used to tie Rakhi on
accused.
No such mention No such mention No such mention When I had taken the
tea to the fifth floor,
he had kept it aside
and had not drunk it.
No such mention No such mention No such mention Accused pushed me
on the matters which
was spread on the
floor of the room (not
seized by teh police).
No such mention No such mention No such mention Accused was wearing
dhoti & kurta.
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No such mention No such mention No such mention I had come to know that I was pregnant after about two to two and half months after the incident.
73.It can be seen, as discussed avove and as tabulated above, that there ar numerous contradictions and inconsistencies in the different statements of the prosecutrix.
74.Where the evidence of the prosecutrix is found suffering from serious infirmities, contradictions 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. 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).
75.If one integral part of the story put forth by a witness-prosecutrix Sessions Case Number : 103 of 2013.
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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).
76.It is also borne out of the record that the prosecutrix did not shout for help or raise alarm or beat the accused to save herself or escape.
She resided in a residential area but she did not call any neighbor. She did not try to escape or shout for help even after the incident. She did not disclose about any incident to the neighbours, her family, her friends, her teachers etc. with whom she was in touch after the incident on 13.12.2012 till 10.03.2013.
77.Here, the judgment of the hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.
78.The above mentioned overwhelming contradictions and glaring Sessions Case Number : 103 of 2013.
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inconsistencies in the evidence of the prosecutrix and the other statements of the porsecutrix cannot be ignored. The veracity of the testimony of the prosecutrix stands shattered. 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.
79.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.
80.Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, 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 Sessions Case Number : 103 of 2013.
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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. 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.
81.It is a case of heinous crime of rape, 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 and not merely dwell upon the shortcoming of defence.
82.The hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
a. By and large a witness cannot be expected to possess a Sessions Case Number : 103 of 2013.
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photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
b. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
c. The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. d. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
e. In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
f. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron. g. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
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83.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 prosecutrix is she has leveled false allegations against the accused.
84.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 and in the absence of special circumstances no conviction can be based on the evidence of such witness."
85.Similar view was also taken in the judgment reported as Madari @ Sessions Case Number : 103 of 2013.
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Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
86.Consequently, no inference can be drawn that the accused is guilty of the charged offence 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 offence under section 376 of the IPC was committed by the accused.
87.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.
88.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.
89.The evidence of the prosecutrix suffers from several overwhelming Sessions Case Number : 103 of 2013.
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inconsistencies and contradictions which are too major to be ignored. The same strike a fatal bow to the prosecution case. She has failed to produce any record of her alleged rape. She did not even try to escape or shout for help when the alleged offences were committed. She did not tell her family or friends or neighbours immediately therafter or even later. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable.
90.All the above facts and the ratio of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence allegedly committed by accused Mr.Randhir Kumar Ojha and he merits to be acquitted.
OTHER MATERIAL WITNESSES
91.As already discussed while considering the evidence of the prosecutrix, it can be held that her evidence is of no help to the prosecution as it is not reliable and trustworthy.
92.The evidence of PWs 10 and 11, her parents is mainly hearsay.
93.As per the prosecution case, the prosecutrix had informed her mother of her rape by the accused after she came to know of her pregnancy and had aborted the same. On return of her mother, after the incident, she had told her that the accused had teased her (ched Sessions Case Number : 103 of 2013.
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khani). Some contradictions have been revealed in the statement under section 161 of the Cr.P.C and the evidence of PW11, the mother of the prosecutrix, and the same are being tabulated herein below.
Statement under section Examination in-chief Cross examination of 161 Cr.P.C of PW11 of PW11 PW11 Randhir Kumar Ojha ney On hearing this, I got I had enquired from the shaam ko ghar aakar mere upset, I scolded the accused as to why he poochney se pahale mujhe accused. has misbehaved my meri beti key baarey mey daughter on which he ulta seedha bolne laga, had used bad language maine dono ko dhamkaya (gandi baat kahne lage) which I cannot even repeat in the Court.
Mere ko do March ko ladki No such mention I do not remember the ney mujhey ye bataya ki exact date and month merey saath Randhir ney when my daughter, the galat kaam kia hae prosecutrix, told me that the accused has raped her.
No such mention No such mention I had gone to the house of daughter in law of my nephew Ms. Seema and Mr. Markandey Mishra.
I had told this fact to the police in my statement.
No such mention No such mention I had told the police in
my statement that as the
daugher in law of my
nephew had undergone
an operation in
Safdarjung Hospital, I
had gone to her
residence.
No such mention No such mention The daughter in law of
my nephew was
operated on 11th
December about one
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year ago. I returned home on 15th December.
I had told the date of my return to the police on my statement.
No such mention No such mention She is unmarried and she is studying presently in Shivaji College in B.B.A 1st year.
No such mention No such mention I had told the police in my statement that my daughter prosectrix had told me that accused had asked her to prepared tea and then had misbehaved with her (chedkhani ki) No such mention No such mention I had told the police in my statement that after 3-4 days of the incident, accused had gone to his native village.
No such mention No such mention I do not remember the exact date and month when my daughter told me that accused had raped her.
No such mention No such mention I have been providing the pocket expenses to my daughter. Whenever she demands the same from me, I give her the money. When I came to know the prosecutrix was pregnant I did not give her money to buy the medicine for terminating the pregnancy.
No such mention No such mention I had accompanied the
prosecutrix to the
hospital for termination
to pregnancy.
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94.The conduct of the mother of the prosecutrix is also not normal as after coming to know that the accused had teased her daughter, she even served food to him, his wife and his sister and the terms were cordial with the father of the accused, as per the evidence of the prosecutrix. No complaint was made to his family or to the police by the mother of the prosecutrix. Even after coming to know that her daughter had become pregnant and therafter taken medicine for abortion, she did not care to take her daughter to a doctor for her check up and treatment and also did not call or go to the police. She has deposed that "When I came to know the prosecutrix was pregnant I did not give her money to buy the medicine for terminating the pregnancy." She did not bother to take any action against the accused. Her evidence in totality does not appear to be reliable and believable.
95.On perusal of the evidence of PW10, it transpires that there are several contradictions in his different statements. The same are being tabulated herein below.
Statement under section 161 Examination in chief of PW10 Cross examination of Cr.P.C. of PW10 PW10 Jo meri ladki ke saath ghatna hui On 09.03.2013 I was told by I do not remember the correct uske baarey mey mujhe 09.03.13 wife that accused Randhir date but it was in the month of ko raat ko pata chala jab meri Kumar Ojha had raped the March 2012 that my wife had Bachhi pareshani badney lagi tab prosecutrix on 12.13.2012 and told me about the teasing she was pregnant. (chedkhani) of my daughter by the accused.
No such mention No such mention I had sypathy with the accused at that time & even today. I have sympathy with him Sessions Case Number : 103 of 2013.
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becuase I and my family and the accused and his family were like one family and the terms were very cordial even today.
No such mention On 10.11.2012 one close relativ I mush have told the Police in e of mine who was wife of Mr. my statement that my wife was Markende Mishra got operated visiting the house of Mr. in Safdarjung HOspital Markennde Mishra on the dateo f the incident.
No such mention No such mention It is correct that I had gone with Mr. Param Hans Ojha, father of the accused to Tihar Jail in April, 2013 to meet the accused who was lodged in the Tihar Jail.
No such mention No such mention It is correct that I accompanied by the accused had distributed the cards of Sita Ram Vivah.
No such mention No such mention The accused generally used to leave at about 6.00 am and I used to leave at about 8.30- 9.00am.
No such mention No such mention The actual working for the function took about 7 days prior to 16.12.2012 No such mention No such mention It is correct w.e.f 13.12.2012 till today my daughter has been going to college, to the temple attending family functions etc.
96.As regards the evidence of PW10, the father of the prosecutrix, it may be observed that it is strange that even after the accused was arrested in the present case, he went to meet the accused in jail and he also has sympathy for the accused. PW 10 has deposed that "I do not remember the exact date but it was in the month of March 2012 that my wife had told me about the teasing (chedkhani) of my daughter by the accused............I did not make any enquiry Sessions Case Number : 103 of 2013.
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from the accused after my wife told me about the incident..........It is correct that I had gone with Mr. Param Hans Ojha, father of the accused to Tihar Jail in April 2013 to meet the accused, who was lodged in Tihar Jail............I had gone to meet the accused in Jail on the request of the father of the accused who had told me that the accused was not keeping well as he wanted to meet me. I had sympathy with the accused at that time and even today I have sympathy with him. I have sympathy with him because I and my family and the accused and his family were like one family and the terms were very cordial even today." The conduct of PW10, as deposed by him, is not as any father would behave when his daughter is alleged to have been raped by the accused. In fact, he should have immediately called the police and not have sympathy at all with the accused.
97.Further, PW10 has deposed that "I have grievance against the accused because of what he has done with my daughter. My daughter had told me about the entire incident after lodging of the FIR when she had appeared before this Court to give her evidence. Prior to that I and my daughter had never discussed about this case." PW10 did not even care to go with his daughter to the Police Station for making the complaint and discussed the case with her only when she came to give her evidence.
98.The accused is a married man with a daughter of marriageable age and would such a man commit rape, does not appear to be true. Sessions Case Number : 103 of 2013.
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PW10 has deposed that "It is correct that prior to the alleged incident I was aware that the accused was searching for a suitable match for his daughter as at that time I was also searching for suitable for my daughter/prosecutrix." In fact, the evidence of PW10 indicates towards the possibility of false implication of the accused.
99.The accused has claimed that the present case has been lodged against him by the prosecutrix as her father wants to grab his property i.e. the house where they are residing.
100. It transpires, on perusal of the evidence of PW10, that prior to the registration of this case, he was in possession only of the fourth floor of the house of the accused but after the arrest of the accused, he has also taken the possession of the fifth floor. The prosecutrix, as PW1, has deposed in her examination in chief that "We were residing on the fourth floor of the house i.e above mentioned address and accused Randhir Kumar Ojha was residing on the fifth floor of this house." She has deposed in her cross examination that "At present I am living with my family at house (address withheld) at Raghubir Nagar, Delhi. My father sleeps on the fifth floor as the fifth floor is also in our possession.... I with my family shifted ...third and fourth floor, Raghubir Nagar, Delhi in the year 2005....During the relevant period my parents, one brother and we three sisters were living at fourth floor of the premises."
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101. PW10 has deposed in his examination in chief that "Accused is also living at the same premises on the fifth floor and I am residing at the fourth floor with my family." In his cross examination, PW10 has deposed that "It is correct that I am residing on the 5th floor of the premises bearing no. (address withheld) Raghubir Nagar and I am in possession of the same.......... I am in possession of only one floor in the property i.e fourth floor. I also have access to the fifth floor as there is a temple made there which is used by me as well as the accused...... I usually sleep in this room as I have put a folding bed on the rug for sleeping. There is no carpet (kaleen) in the room where temple is situated.I have also kept my clothes in the almirah. My books are also lying in the room where temple is situated in the fifth floor." He is also collecting the rent from the other tenants in the property. He himself has not paid the rent after March, 2013. It is clear from his own evidence that the father of the prosecutrix has taken possession of the portion of the accused, is collecting rent from other tenants and had also gone to meet the accused in jail. The conduct points towards grabbing of the property of the accused by the father of the prosecutrix.
102. Here, it would also be relevant to mention that the accused has filed against the father of the prosecutrix a suit for recovery of possession by way of eviction and for recovery of Rs.2,97,500/- (Ex.DW2/A) dated 07.08.2014 wherein the the father of the Sessions Case Number : 103 of 2013.
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prosecutrix has filed his written statement (DW2/B) dated 03.11.2014 denying paragraph 5 of the plaint that "the plaintiff was arrested in the month of March, 2013 in a false rape case lodged by the daughter of the defendant on the behest of the defendant. He was granted bail in the monh of August 2013 with the condition that he will not visit the premises bearing number..." and PW10 has replied in the written statement that "That the contents of para 5 of this plaint are denied for want of knowledge." As on 03.11.2014, the evidence of the prosecutrix was concluded on 20.11.2013 and the evidence of PW10 was concluded on 21.11.2013. Apparently, PW10 has furnished wrong facts in his written statement in the civil case.
103. Therefore, it is clear that the evidence of the prosecution witnsesses PWs 10 and 11, the parents of the prosecutrix, does not support the prosecution case as the same is unreliable and not trustworthy.
PUBLIC WITNESSES NEITHER CITED NOR EXAMINED
104. The prosecution has failed to examine some very material witnesses and this lapse gives a severe blow to the prosecution case.
105. The prosecution has failed to associate in the investigation, Ms. Sugandha, the sister of the prosecutrix, who had written the complaint (Ex.PW1/A). She was an important witness who could Sessions Case Number : 103 of 2013.
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explain the circumstances under which the prosecutrix had not written the complaint and she herself (Ms.Sugandha) had written it.
106. The prosecution has also not examined the other tenants in the property of the accused where the accused and the prosecutrix were residing as well as Ms.Darshana, who lives in the opposite house to ascertain whether or not any incident occurred with the prosecutrix on 13.12.2012. The alleged incident occurred in a residential area but none of the neighbours have been associated in the investigation nor cited in the list of prosecution witnesses nor produced nor examined by the prosecution.
107. The prosecution has also not associated Mr.Markande Mishra and his wife Ms.Seema to ascertain whether or not PW11, mother of the prosecutrix, was not at her own house on 13.12.2012 and was in the house of Mr.Markande Mishra as she was looking after Ms.Seema who had been operated in Safdarjung Hospital.
108. The prosecution has also not examined Ms.Sita WVanti Bhasin, Pradhan / Chairperson of Sita Ram Vivah Samiti and the other members to ascertain whether on not the accused was busy in the preparations of the Mahotsav of SIta Ram Vivah which was to be celebrated on 16.12.2012 and was distributing its cards with DW1 on 13.12.2012 and was with DW1 from 10:30 am till about 02:30 to 03:00 pm. Sessions Case Number : 103 of 2013.
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109. By not citing, producing and examining the above persons, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused.
EVIDENCE OF DR.SURESH KUMAR (PW15)
110. It is very important to discuss the evidence of PW15 Dr.Suresh Kumar as it is not only relevant for this case but it is also relevant for the entire society. His particulars, as stated by him are "PW-15- Dr. Suresh Kumar s/o Mr. Tapeshwar Gupta R/o C-9, Raghubir Nagar, New Delhi, aged 38 years, 10 th pass, working in factory for manufacturing television kit."
111. Before, considering the evidence of Dr.Suresh Kumar, it would be important to go through the statements of the porsecutrix regarding the doctor, her pregnancy, her abortion etc.
112. As per the complaint (Ex.PW1/A), the prosecutrix had gone for check up to CT Clinic and came to know that she is pregnant and then she was given medicine and injection due to which she aborted and her abortion was with her consent.
113. In her evidence as PW1, the prosecutrix has deposed that "I purchased pregnancy test kit from a near by medical shop and did my urine test. However as I was not confirmed about the result, I went to C.T Clinic situated in our area and the doctor Sessions Case Number : 103 of 2013.
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concerned told me that the report was positive. I came back home and after 1-2 days I purchased some medicines for abortion from the chemist due to which abortion had taken place."
114. In her cross examination, the prosecutrix has deposed that "It is correct then I had gone to C.T Clinic but I do not remember the name of the doctor. I had gone there only to confirm whether or not I was pregnant..... The doctor had not prescribed any medicines or injections.... I had got abortion conducted Vol. I had taken medicine from a medical store due to which I had started bleeding. The C.T clinic is at a distance of about 10 minutes walk from my residence. Usually my family visit the government dispensary in case anyone is unwell and in case of emergency we go to C.T Clinic. I had gone alone to the C.T Clinic. The doctor did not take any fees from me..."
115. The testimony of PW1, regarding her pregnancy test and abortion is clear as in her evidence she has deposed that she had only shown the pregnancy test to ascertain the report. She has taken the opinion of a non-qualified person to know the report of her pregnancy test. The evidence of PW15 Dr.Suresh Kumar is of no help to the prosecution.
116. However, it is important to take judicial notice of the evidence of PW15 Dr.Suresh Kumar as some alarming facts are revealed in the same which effect adversely and are detrimental to the society Sessions Case Number : 103 of 2013.
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at large.
117. The evidence of PW15 Dr.Suresh Kumar, recorded on 23.07.2015, is being reproduced herein below:
"I work in a factory which manufactures television kits. The factory is located at R-76, Maharani Enclave, Uttam Nagar. Earlier I was working in a clinic at B-589, Raghubir Nagar under the name and style of Citi Clinic as a Compounder under Dr. Ashok Kumar, who has since expired. I am addressed as a doctor although I am not a doctor. During investigation of the present case, SI Sarita had come to the City Clinic on 10.04.2013 and made enquiry from me. One female (name withheld to protect the identity of the proscutrix) came to clinic in the month of March, 2013 with pregnancy test kit. I do not know whose test had been conducted with the pregnancy test kit. She had told me that the pregnancy test was conducted. I saw that the pregnancy report was positive as there were two lines. However, I did not suggest or prescribed any medicine for the purpose of termination of the pregnancy since I do not conduct the termination of pregnancy in clinic therefore I do not have any record in this regard. My report which is in my handwriting is Ex.PW 15/A bears my signature at point A. XXXXXX BY Accused.
It is correct that I am not a qualified doctor. I had learnt from Dr. Ashok Kumar to read the pregnancy test kit report while working under him. I reside on the same road (gali) where the prosecutrix resides with her family. I know her father as he is a Priest (Pandit Ji). I myself reside on rent. The father of the prosecutrix with his family has never lived in my premises as a tenant as I do not own any property. I do not remember the date and month but I am aware that Dr. Ashok Kumar expired in the year 2013. It is correct that the clinic run by Dr. Ashok Kumar had a board of "Doctor Clinic" displayed outside and subsequently another board of "City Clinic" was also displayed under the board of Doctor Sessions Case Number : 103 of 2013. Unique Case ID Number : 02401R0201842013. FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code. State v. Randhir Kumar Ojha -:: Page 53 of 71 ::-
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Clinic. Now that clinic has been closed.
It is correct that at the clinic a board is displayed on which it is mentioned that "City Clinic, Dr. Suresh Kumar, B.Sc. , B.U.M.S.(Patna)University, Physician & Surgeon, All blood Test, Ultrasound, CT Scan, MRI Etc. Coming: 9am to 2 pm. Eve: 5pm to 10pm. Mobile no. 9711522626.". It is also correct that some words also written in Hindi which are as "Sabhi prakaar khoon ki Jaanch, Dama Medicion Free".
My mobile number is 9711522626. I do not have any degree of B.Sc., B.U.M.S.(Patna)University, Physician & Surgeon. I do not have any qualification for conducting All blood Test, Ultrasound, CT Scan, MRI Etc. I also do not have the qualification for conducting Pregnancy Test. Even after the death of Dr. Ashok Kumar, the clinic remained open and his wife used to visit there some times. She is perhaps a doctor. The new board of Dr. Suresh Kumar i.e myself was put by Dr. Ashok Kumar during his life time. The qualification which are mentioned in the board were also got written by Dr. Ashok Kumar and I had not got the same written.
I was working in the City Clinic in February, 2013. It is correct that I am not a doctor. Some local people used to address me as a doctor out of love and affection but I am not a doctor.
It is correct that when the prosecutrix (name withheld) had come to me with the pregnancy test kit, she had not told me that she had tested herself with the kit.
I know the accused Randhir Kumar Ojha as he is a Priest (Pandit Ji). Accused resides with the father of the prosecutrix and his family in the premises owned by the accused. I know him since last about 5-6 years."
118. It is clear from the evidence of Dr.Suresh Kumar that he is neither a qualified doctor nor a RMP nor has any medical degree for giving allopathic medicines to the patients nor he has any degree for practising Veterinary medicine or Veterinary surgery or Sessions Case Number : 103 of 2013.
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Homoeopathic or the Ayurvedic or the Siddha or the Unani System of Medicine nor holds BAMS or BIMS degree. He is only 10 th pass and does not have qualification to give medicines or perform surgery or conduct any medical test, ultrasound, MRI, blood tests, CT scan, pregnancy test, etc.
119. The clinic claimed to have been run by Dr.Ashok Kumar has been run even after his demise in 2013. Dr. Suresh Kumar, PW15 has admitted that there is a board displayed outside the clinic on which it is mentioned that "City Clinic, Dr. Suresh Kumar, B.Sc. , B.U.M.S.(Patna)University, Physician & Surgeon, All blood Test, Ultrasound, CT Scan, MRI Etc. Coming: 9am to 2 pm. Eve: 5pm to 10pm. Mobile no. 9711522626.". He has admitted that some words are also written in Hindi which are "Sabhi prakaar khoon ki Jaanch, Dama Medicion Free". His mobile number is 9711522626. He does not have any degree of B.Sc., B.U.M.S.(Patna) University, Physician & Surgeon. He does not have any qualification for conducting All blood Test, Ultrasound, CT Scan, MRI Etc. He also does not have the qualification for conducting Pregnancy Test.
120. It does not appear to be possible that some local people could address him as a doctor out of love and affection when he is actually not a doctor. He is not qualified to conduct or tell the result of a pregnancy test.
121. It appears that Suresh Kumar, who is not a doctor, is using the Sessions Case Number : 103 of 2013.
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clinic to fool the innocent persons and unsuspecting patients by projecting himself as a doctor. He appears to be conducting all diagnostic tests including blood tests, ultrasound, CT scan, MRI, pregnancy test, etc. without having any qualifications for the same. He appears to be giving medicines and doing surgery without having any qualifications for the same. He is defrauding innocent persons claiming himself to be a doctor when he is only 10th pass. Even his mobile phone number is displayed on the board outside the clinic. He does not deserve any leniency as he has been medicines to unsuspecting patients, which may not only be detrimental to the patients, but is also detrimental to the entire society.
122. It appears that he may have committed offences under Delhi Medical Council Act, IPC and other laws.
123. SHO PS Khyala, under the supervision of the DCP, West, is hereby directed to conduct investigation, within three months from the date of judgment, regarding Dr.Suresh Kumar projecting himself as a doctor, to cheat, befool and defraud the public and unsuspecting patients, and if he is found to have committed any offence, then he is required to be prosecuted accordingly.
Sessions Case Number : 103 of 2013.
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MENS REA / MOTIVE
124. 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 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.
125. 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 un- amenable 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.
126. In the present case, a story has been projected that the accused Sessions Case Number : 103 of 2013.
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has raped the prosecutrix. 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 future. He is a married man with children and he also has a sister. He is a priest and a lecturer whose conduct is supposed to be much higher than others. The prosecutrix also used to address him as brother. He has claimed that the father of the prosecutrix wanted to grab his property due to which he has been falsely implicated in the present case. (His defence shall be discussed under a separate heading)
127. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution. He is a mature man aged 44years (as per his MLC-Ex.PW12/A) and capable of understanding the implications of his acts. He has completely denied having committed the offence.
128. 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. 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 Sessions Case Number : 103 of 2013.
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own facts.
129. There does not appear to be any criminal intention and mens rea on the part of the accused.
DEFENCE OF THE ACCUSED
130. 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 stated that "The prosecutrix and her family wanted to grab my property and were not paying any rent since last 8-10 years. When I asked them to vacate the tenanted premises, they have falsely implicated me in the present case, as the father of the prosecutrix demanded a sum of Rs. 15 Lacs to vacate the premises. The father of the prosecutrix who was working under me, has developed professional enmity with me. He wanted to grab my property as well as my clients. When I asked him to vacate the premises as my family was about to shift Delhi, he and his family connived together to lodge the present false and fabricated complaint against me." He has examined Mr.Subhash Bidlan as DW1 and himself as DW2.
131. DW1 has deposed that on 13.12.2012, he (DW1) and the accused were together from about 10:30 amd to 02:30- 03:00 pm and they were distributing the invitation cards of Sita Ram Vivah Mahoutsav.
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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132. DW2, the accused, has deposed that he is lecturer of Sankrit at Girish Narayan Mishra Mahavidhyala, Pursathuva, Distt Rohtash, Bihar. He frequently comes to Delhi for religious work as he is the founder (Sansthapak) of Sita Ram Vivah Sewa Samiti, Raghubir Nagar, Shivaji Enclave, Delhi. The Samiti organizes the Sita Ram Vivah (marriage anniversary of Lord Ram with Sita), Janki Janamoutsav (celebration of the birthday of Goddess Sita) and also organizes the mass marriages of poor girls. He has also deposed that the father of the prosecutrix has got him falsely implicated in this case as he wants to grab his property and did not want to pay rent. He has also filed a civil suit for possession of his premises (Ex.DW2/A to Ex.DW2/C) in which DW1 has filed his written statement on false facts. He (the accused) and DW1 were together on 13.12.2012 and they were distributing the invitation cards of Sita Ram Vivah Mahoutsav. Father of the prosecutrix had come to meet him in jail and demanded money for settling this case.
133. I find that nothing material for the prosecution has come forth in the lengthy cross examination of DWs 1 and 2.
134. Here, it would be pertinent to mention that PW10, father of the prosecutrix, has also admitted in his evidence that he along with the accused had also gone for distribution of the invitation cards of Sita Ram Vivah Mahoutsav, which also strengthens the claim of the accused, that he was not available at the place of alleged incident on the date and time of the alleged incident. Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
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135. It may be observed here that while discussing the evidence of the prosecutrix (PW1), her father (PW10) and her mother (PW11), it has already been observed that their evidence is neither reliable nor trustworthy nor their conduct is natural and normal. PW1 and PW10 have admitted that PW10 had visited the accused in jail. The documents of the civil case (Ex.DW2/A to Ex.DW2/C) also show that the father of the prosecutrix is not disclosing correct facts. PW1 and her family continued to have cordial terms with the family of the accused.
136. The defence of the accused is proved and considering the unreliable evidence of the prosecutrix and her parents which suffers from overwhelming contradictions and glaring inconsistencies, the prosecution version is not believable and reliable.
137. The case of 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.
138. Therefore, as the prosecution version is unreliable and unbelievable that the accused had raped the prosecutrix and the defence of the accused appears to be plausible that he has not committed any offence and has been falsely implicated to Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
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grab his property.
INVESTIGATION
139. The investigation conducted in the present case has been deposed by police witnesses. The documents have been proved by their authors and signatories to the same. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. There is nothing on the record to show that their testimonies are false or not reliable.
140. However, it must be mentioned here again that the Investigation Officer has failed to associate Ms.Darshana, the teanants in the property, the neighbours, Mr.Markende Mishra and his wife Ms.Seema, Ms.Sugandha, sister of the prosecutrix etc. who were very material for this case, as already discussed above.
141. It is also clear that the mattress on which the alleged offence was commited has not been recovered nor any explanation is coming forth from the prosecution regarding the same.
142. It is also relevant to mention here although it has been argued on behalf of the accused that the place of incident is not clear i.e. whether it was fourt or fifth or sxth floor of the premises Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
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considering the evidence of PWs 1, 10, 11 and 14 and the site plan (Ex.PW14/B) but is clear from the evidence on record that the incident occurred on the fifth floor and there is no sixth floor. The site plan has the floors mentioned i.e. "G Floor Ist IInd and IIIrd mentioned and the next is written as VI although it should be IV and it appears to be a mistake, perhaps made inadvertently as the floors are being written in sequence.
143. 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 and other material witnesses, then the investigation becomes less important as prosecutrix has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused.
144. 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.
145. Therefore, the investigation is not being taken into consideration although it is material but not very relevant as Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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the evidence of the prosecutrix itself is not reliable and believable and the evidence of her parents is also not reliable.
FINAL CONCLUSION
146. The prosecution has failed to furnish any explanation in respect of the numerous contradictions and inconsistencies in the statements of the prosecutrix as well as her parents. 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 prosecutrix and other prosecution witnesses is that the accused has not committed the alleged offences.
147. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had committed the offences. In fact, it is borne out of the record that the defence of the accused appears to be correct that the father of the prosecutrix wants to grab his property.
148. Since the evidence of the prosecutrix, PW1, is neither reliable nor believable as there are overwhelming contradictions in her Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
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different statements as well as in totality with the other evidence on record, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
149. 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 as under:
i. 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;
ii. 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; iii. The circumstances should be of conclusive nature and tendency;
iv. They should exclude every possible hypothesis except the one to be proved; and v. 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.
150. Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix nor committed any other offence against her. There is Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
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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.
151. 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.
152. 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 prosecution is found to be improbable, prosecution case becomes liable to be rejected.
153. 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.
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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154. It is a case of heinous crime of rape 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. Here in the present case, is a prosecutrix who is not truthful. She has given different statements and made numerous contradictions and inconsistencies which remain unexplained.
155. The prosecution has miserably failed to prove that the accused committed rape upon the prosecutrix (name mentioned in file and withheld to protect the identity of the prosecutrix) on 13.12.2012 in his house where the proseuctrix with her family was also residing on different floors.
156. All the above facts indicate that there is no veracity in the prosecution case in respect of the offence of rape of the prosecutix by accused Mr. Randhir Kumar Ojha and the accused merits to be acquitted for the offence under section 376 of the IPC.
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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157. 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. Randhir Kumar Ojha.
158. Accordingly, Mr. Randhir Kumar Ojha, the accused, is hereby acquitted of the charges for the offence of rape under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
159. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
160. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
161. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is neither reliable nor believable, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
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contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
162. Here, I would also like to mention, once again, as already observed in several other similar cases, that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape, after trial, as evidence of the prosecutrix is not reliable. In the circumstances, such a person, an acquitted accused, who has remained in custody for a considerable period during inquiry, investigation and trial and who has been acquitted honourably, should he now be addressed as a rape case survivor ? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.
163. It cannot be ignored that the accused, a priest and a lecturer, due to this case which has ultimately ended in his acquittal, has suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. He has remained in custody for a considerable period. Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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164. It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss. However, his acquittal may give him some solace. He may also file any case for damages against the prosecutrix, if advised. No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made which may be misused by a woman but where is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for a man.
165. Copies of the judgment be sent to SHO PS Khyala and DCP, West for information and compliance regarding investigation and prosecution of Dr.Suresh Kumar, PW15 as he has projected himself to be a doctor without holding any requisite qualifications, as already discussed above. The compliance report is to be submitted within three months from the date of judgment.
166. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
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167. 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 (NIVEDITA ANIL SHARMA) on this 11th day of February, 2016. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 103 of 2013.
Unique Case ID Number : 02401R0201842013.
FIR No. 83/2013, Police Station Khayala, Under section 376 of the Indian Penal Code.
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