Delhi District Court
State vs . Santosh Yadav on 17 November, 2016
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS JUDGE (SFTC), DWARKA COURTS, NEW DELHI. SC No. 440829/16 FIR No. 339/2015 U/s.376/506 IPC P.S. Kapashera State Vs. Santosh Yadav S/o Sh. Naresh Yadav R/o Ram Kumar Ka Makan, Gali No.2, Kapashera, New Delhi. Permanent Address: Village & Post Katauma Khushrupur, District Patna, Bihar. Date of Institution : 09.03.2016. Date of reserving judgment : 09.11.2016. Date of pronouncement : 17.11.2016. JUDGMENT : 1. Accused was arrested by the Police of Police Station Kapashera, New Delhi and was challaned to the court for trial for commission of the offences punishable under Sections 376/506 IPC. 2. The case of the prosecution, in brief, is that on 8.8.2015 prosecutrix 'X' (real name withheld in order to conceal her identity) lodged a complaint with police alleging therein that about five years back her husband left her and then she came in contact with the accused who started meeting her at her house. One day at about 10 p.m during the summer season when she was all alone in her room while her children were sleeping on the roof, accused committed rape upon her and threatened her of dire consequences. Thereafter, he continued to repeatedly rape her by threatening her. It is further the SC No. 440829/16 (State vs. Santosh Yadav) Page 1 of 11 case of the prosecution that on 7.8.2015 at about 7 p.m the accused came to her house and committed rape upon her whereupon she called the police. 3. On the complaint of the prosecutrix, FIR was registered and the matter was investigated by the police. During investigation, statement of the prosecutrix was got recorded u/s.164 Cr.PC on 10.8.2015. Accused was arrested. The statements of the witnesses were recorded. The prosecutrix as well as accused were got medically examined. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court. 4. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions. 5. Vide order dated 1.4.2016, charge u/s 376/506 IPC against accused was framed to which he pleaded not guilty and claimed trial. He was accordingly put to trial. 6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined thirteen witnesses in all. PW1 is the prosecutrix who has narrated the incident. PW2 HC Sunder Singh has proved the copy of the FIR as Ex.PW2/A and endorsement on rukka as Ex.PW2/B. PW3 HC Jagdeep has proved the DD No.27A as Ex.PW3/A. PW4 Ct. Satish has proved the DD No.50B as Ex.PW4/A. PW5 HC Naresh reached the spot along with Constable Amit after receiving DD No.7A. PW6 Master Sonu and PW7 Ravi Kumar are the children of the prosecutrix who have SC No. 440829/16 (State vs. Santosh Yadav) Page 2 of 11 corroborated her statement. PW8 W Ct. Rekha has proved the seizure memo as Ex.PW8/A. PW9 Ct. Amit has corroborated the testimony of PW5 HC Naresh. PW10 Ms. Manu Goel Kharab, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded u/s 164 Cr.PC as Ex.PW10/A. PW11 Dr. Neha Pruthi has proved the MLC of the prosecutrix as Ex.PW11/B. PW12 Yogesh Tripathi has proved the CDRs of prosecutrix as Ex.PW12/C. PW13 W SI Indu Mehra is the IO of the case. 7. Statement of accused was recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against him. Accused pleaded that he has been falsely implicated by the prosecutrix after he got married. Prosecutrix wanted to marry him but he refused whereupon she lodged the present FIR against him in connivance with her children. Accused did not lead evidence in his defence. 8. I have heard Ms. Satvinder Kaur, Ld. APP for the State and Sh. Gulab Singh, Ld. Counsel for the accused. I have also perused the material on record. 9. Ld. Counsel for accused has contended that there is delay in lodging the FIR. No alarm was raised by the prosecutrix when she was allegedly raped by the accused. The prosecutrix has made contradictions and omissions in her statements. According to Ld. Counsel, the present false case was registered after the accused got married as the prosecutrix wanted to extort money from the accused. It is contended that the relations between the accused and the prosecutrix SC No. 440829/16 (State vs. Santosh Yadav) Page 3 of 11 were consensual. According to Ld. Counsel, accused is liable to be acquitted. On the other hand, Ld. APP for State has contended that prosecution has proved its case against the accused beyond reasonable doubt. 10. PW1 has deposed that she was married to one Pinku Singh about 15 years back. Her husband left her and went to Bihar. She came to know accused through her nanad and accused started visiting her house since five to six years back. She has further deposed that one day about five years back during the summer season at about 10 p.m, when her children were sleeping on the roof of her house, accused came armed with a knife and threatened her of dire consequences. Thereafter, he raped her. She could not raise an alarm as she got scared due to the threats extended by him. As per PW1, the accused repeatedly continued to rape her by extending threats. On 7.8.2015 at about 7 p.m accused raped her whereupon she raised an alarm and police was called. She has proved her statement to the police as Ex.PW1/A; her statement u/s 164 Cr.PC as Ex.PW1/B; site plan as Ex.PW1/C; arrest memo of the accused as Ex.PW1/D; her blouse as Ex.P1; petticot as Ex.P2 and brasserie as Ex.P3. 11. During her crossexamination, PW1 has admitted that there were many other houses adjoining to her house where the alleged incident of rape had taken place. She has further admitted that she neither raised any alarm nor informed the police after the accused committed the alleged rape for the first time. She has further deposed that she cannot tell the number of times by approximation the accused SC No. 440829/16 (State vs. Santosh Yadav) Page 4 of 11 has raped her. She has further admitted that she did not lodge any complaint prior to her complaintEx.PW1/A. 12. PW5 HC Naresh has deposed that on 7.8.2015 on receipt of DD No.27A regarding a quarrel, he along with Ct. Amit reached the spot. He met the prosecutrix who told him that she had been raped by the accused. The information was given to the Duty Officer in the Police Station in this regard whereupon W SI Indu Mehra reached the spot and recorded the statement of the prosecutrix. He has proved the arrest memo, personal search memo and disclosure statement of accused as Ex.PW1/D, Ex.PW5/A and Ex.PW5/B respectively. 13. During his crossexamination, PW5 has admitted that some public persons were present when he visited the spot along with Ct. Amit. 14. PW6 Master Sonu and PW7 Ravi Kumar are the children of the prosecutrix who have corroborated the testimony of prosecutrix. 15. PW9 Ct. Amit has corroborated the testimony of PW5 HC Naresh. During his crossexamination, he has admitted that DD No.27A dated 7.8.2015 was regarding a quarrel and there was no mention of rape in it. 16. PW13 is the IO of the case who after completing the investigation filed the chargesheet in the court. 17. The FIR in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is well settled proposition of law that a SC No. 440829/16 (State vs. Santosh Yadav) Page 5 of 11 mere delay itself cannot be a ground to disbelieve the entire case of the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given case. Though not referred to or relied upon, in case of Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. 18. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified in the facts and circumstances of a given case. However, in the present case there is delay of about more than one year from the date of first alleged incident in lodging the FIR. 19. Though not referred to or relied upon, in judgment - Ramdas v. State of Maharashtra, 2007 AIR (SC) 155, it has been held by the Apex Court as under : "23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality. ...
25. In the instant case there are two eye witnesses who have been examined to prove the case of the prosecution. We have rejected SC No. 440829/16 (State vs. Santosh Yadav) Page 6 of 11 outright the evidence of PW5. We have also critically scrutinised the evidence of the prosecutrix, PW2. She does not appear to us to be a witness of sterling quality on whose sole testimony a conviction can be sustained. She has tried to conceal facts from the court which were relevant by not deposing about the earlier first information report lodged by her, which is proved to have been recorded at the police station. She has deviated from the case narrated in the first information report solely with a view to avoid the burden of explaining for the earlier report made by her relating to a non cognizable offence. Her evidence on the question of delay in lodging the report is unsatisfactory and if her deposition is taken as it is, the inordinate delay in lodging the report remains unexplained. Considered in the light of an earlier report made by her in relation to a non cognizable offence, the second report lodged by her after a few days raises suspicion as to its truthfulness."
20. Though not referred to or relied upon, in judgment - Rajesh Patel v. State of Jharkhand, 2013 AIR (SC) 1497 it has been held by the Apex Court as under :
"9...Further, the High Court accepted the observation made by the learned trial Judge wherein the explanation given by the prosecutrix in her evidence about being terrorised to be killed by the appellant in case of reporting the matter to the police, is wholly untenable in law. The same is not only unnatural but also improbable. Therefore, the inordinate delay of 11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only makes the prosecution case improbable to accept but the reasons and observations made by the trial court as well as the High Court in the impugned judgments are wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the courts below in accepting delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in law."
21. Though not referred to or relied upon, in judgment - Deelip Singh @Dilip Kumar v. State of Bihar, 2004 (8) Supreme 266 it has been held by the Apex Court as under :
SC No. 440829/16 (State vs. Santosh Yadav) Page 7 of 11"In any case, if the rape was committed by the accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. She admitted that the accused used to talk to her for hours together and that was within the knowledge of her parents and brother. This statement also casts an element of doubt on her version that she was subjected to sexual intercourse in spite of her resistance. Above all, the version given by her in the Court is at variance with the version set out in the FIR. As already noticed, she categorically stated in the first information report that she 'surrendered before him' in view of his repeated promises to marry. In short, her version about the first incident of rape bristles with improbabilities, improvements and exaggerations."
22. It is the settled law that conviction in rape cases can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case the Court has reasons not to accept the version of the prosecutrix on its face value, it may look for corroboration.
23. The testimony of the prosecutrix does not inspire confidence for the following reasons :
(i) No complaint was lodged by the prosecutrix till 8.8.2015 though she was allegedly raped by the accused for the first time five years back. There is no valid justification for delay in lodging the FIR. (b ) The evidentiary value of the medical evidence is zero.
(c) There is no mention of any date, month or the place where the accused committed rape upon the prosecutrix for the first time about five years back. Further all the incidents of rape are vague and general and there is no mention of any date, time and place except for the last alleged incident dated 7.8.2015.
(d) The prosecutrix has made material contradictions and omissions SC No. 440829/16 (State vs. Santosh Yadav) Page 8 of 11 in her statements. As per PW1, she was threatened by the accused that he had her obscene photographs in his mobile phone and the incident of rape is disclosed to anyone, prosecutirx would be defamed in public. PW1 was confronted in this regard with her statement Ex.PW1/A where it is not so recorded. There is no allegation in Ex.PW1/A that the accused was carrying a knife at the time of alleged first incident of rape. There are material contradictions and improvements in the testimony of PW1 which are fatal to the prosecution. Further, there is nothing on record that any obscene photograph of the prosecutrix were recovered from the mobile phone of the accused.
(e) DD No.27AEx.PW3/A is regarding quarrel only and there is no whisper of any allegation of rape.
(f) there are contradictions and omissions in the testimonies of PW1, PW6 and PW7. PW6 has deposed that he was playing with his brothers and sisters on the roof of their house on 7.8.2015. He was declared hostile in this regard by Ld. APP. He has denied the suggestion of Ld. APP that he was playing outside the room of their house and not on the roof when the accused reached and enquired about his mother. PW7 has also deposed that on 7.8.2015 at about 7 p.m he saw accused beating his younger brothers and sisters on the roof of their house. He was confronted in this regard with the statementEx.PW7/A where it is not so recorded.
(g) As per accused, on 12.6.2015 he got married and the prosecutrix has lodged the false case against him out of frustration as she wanted SC No. 440829/16 (State vs. Santosh Yadav) Page 9 of 11 to marry him. The prosecutrix kept mum for such a long time of about five years though she was repeatedly raped by the accused, as alleged by her. In the facts and circumstances of this case, the possibility of the prosecutrix being annoyed with the accused and, therefore, falsely implicating him in the present case is not ruled out.
(h) The prosecutrix had ample opportunity to lodge complaint against the accused after the alleged incident when she was raped by the accused for the first time five years back. She has admitted that she did not lodge any complaint against the accused at that time. She has also admitted that she did not raise any alarm. However, as per prosecutrix, no alarm was raised by her at that time as the accused was armed with a knife and he threatened to kill her and her children. It is pertinent to mention that there is no mention in her complaint Ex.PW1/A by the prosecutrix that the accused was armed with a knife when she was raped for the first time about five years back. Thus, an improvement was made by the prosecutrix in her testimony before the court. The stand taken by the prosecutrix that she did not lodge the complaint against the accused as she was threatened does not inspire confidence.
(i) On scruitinizing the versions narrated by the prosecutrix, it seems that the prosecutrix has not presented the true facts. The testimonies of PW1 and PW2 do not inspire confidence. The defence taken by the accused in his statement u/s 313 Cr.PC is plausible
24. Considering the materials on record, as discussed above, the possibility of false implication of the accused cannot be ruled out.
SC No. 440829/16 (State vs. Santosh Yadav) Page 10 of 11No explicit reliance can be placed on the testimony of the prosecutrix to base conviction.
25. The delay in lodging the FIR, the testimonies of the prosecutrix and her children and the associated circumstances leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. As the prosecution case would show, her testimony does not inspire confidence and the circumstantial evidence do not lend any support to the same. In the absence of both, this Court is of the view that accused is liable to be acquitted.
26. Considering the facts and circumstances of this case, I am of the opinion that the prosecution has failed to prove its case against the accused. Hence, the accused is acquitted. His personal bond is cancelled and surety is discharged. Documents, if any, be released to the surety/Counsel. In terms of Section 437(A) Cr.P.C., accused is directed to furnish personal bond in the sum of Rs.25,000/ with one surety in the like amount for a period of six months for his appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Dictated & announced in open (PRAVEEN KUMAR) Court today i.e. on 17.11.2016. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
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