Delhi District Court
State vs Satya Narain -:: Page 1 Of 60 ::- on 18 May, 2013
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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 : 13 of 2013.
Unique Case ID Number : 02401R0621062011.
State
versus
Mr.Satya Narain,
Son of Mr. Ram Bhagat,
Resident of A-11-12, Jhuggiyan,
W-161/3, Maya Puri Phase-I, New Delhi.
First Information Report Number : 1495/10
Police Station Mangol Puri,
Under sections 406, 420, 506, 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 28.09.2011
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 14.03.2012.
in the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 18.05.2013.
Date of judgment : 18.05.2013.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr.Rajiv Tiwari.
Ms.Sadhna Singh, counsel for the Delhi Commission for
Women.
************************************************************
Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011
FIR No. 145/10, Police Station Mangol Puri,
Under sections 406, 420,506 and 376 of the Indian Penal Code.
State versus Satya Narain -:: Page 1 of 60 ::-
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there.".............. Kurt Cobain
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 is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult.
PROSECUTION CASE
2. Mr. Satya Narain, the accused has been charge sheeted by Police Station Maya Puri, Delhi for the offence under sections 376/496/420 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that in the month of February, 2003 at about 10.00 pm at 11/12, WZ Phase-I, Jhggi No.302, Maya Puri, Delhi, within the jurisdiction of Police Station Maya Puri, he administered to prosecutrix(name withheld to protect her Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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identity) some stupefying thing mixed in a tea with intent to commit the offence of rape on her and raped her and continuously thereafter committed rape on prosecutrix. After the month of February, 2003, he cheated prosecutrix dishonestly inducing her to deliver Rs.75,000/- to him to purchase a plot in her name but purchased the plot measuring 30 sq yards at Nangal Dairy, Delhi in his own name. After the month of September, 2005, he criminally intimidated the prosecutrix by threatening to kill her and her children in case she does not withdraw her complaints given to the police against him or if she makes any further complaint to the police and also obtained her signatures on some blank papers under said threats.
CHARGE SHEET AND COMMITTAL
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 28.09.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 14.03.2012 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide circular number 20/372-512/F.3. (4)/ASJ/01/2013 Dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
4. After hearing arguments, charge for offence under sections 328/376/420/506 of the IPC was framed against the accused Mr.Satya Narain by the learned predecessor on 17.04.2012. Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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PROSECUTION EVIDENCE
5. In order to prove its case, the prosecution has examined as many as 07 witnesses i.e. HC Naresh Kumar, duty officer, who had recorded the formal FIR of the case, as PW1; ASI Prahlad Singh, who had filed the status report in the complaint case filed by the prosecutrix, as PW2; ASI Jagdish Raj, the initial Investigation Officer, as PW3; prosecurix as PW4; Dr. Megha who had medically examined the prosecutrix as PW5 and who also deposed in place of Dr. Mohit who had medially examined the prosecutrix as PW5; SI Sushila, the Investigation Officer as PW6; and Ms. Meera, neighbour of the prosecutrix, as PW7.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
6. In his statement under section 313 of the Cr.P.C., recorded on 05.02.2013, the accused Satya Narain has controverted and rebutted the entire evidence against him submitting that he is innocent and he has been falsely implicated in this case. He has preferred not to lead any evidence in his defence.
ARGUMENTS
7. 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.
8. The Additional Public Prosecutor for the State has requested for convicting the accused Mr.Satya Naraina for having committed the offence Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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under sections 328, 376, 420 and 506 of the IPC and 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.
9. 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.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
10. The allegations against the accused are that on the allegations that in the month of February, 2003 at about 10.00 pm at 11/12, WZ Phase- I, Jhggi No.302, Maya Puri, Delhi, within the jurisdiction of Police Station Maya Puri, he administered to prosecutrix(name withheld to protect her identity) some stupefying thing mixed in a tea with intent to commit the offence of rape on her and raped her and continuously thereafter committed rape on prosecutrix. After the month of February, 2003, he cheated prosecutrix dishonestly inducing her to deliver Rs.75,000/- to him to purchase a plot in her name but purchased the plot measuring 30 sq yards at Nangal Dairy, Delhi in his own name. After the month of September, 2005, he criminally intimidated the prosecutrix by threatening to kill her and her children in case she does not withdraw her complaints given to the police against him or if she makes any further complaint to the police and also obtained her signatures on some blank papers under said threats.
11. The prosecution story unfolds with the lodging of the FIR Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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(Ex.PW1/A) on 17.02.2010 being recorded by HC Naresh Kumar, Duty Officer (PW1) on the orders of the learned Metropolitan Magistrate in the complaint case filed by the prosecutrix (PW4) and endorsement (Ex.PW1/B) was made on the same and the investigation of the case was marked to ASI Jagdish Raj (PW3). ASI Prahlad Singh made the status report (Mark A) on the direction of learned Metropolitan Magistrate on the complaint case of prosecutrix, thereafter learned Metropolitan Magistrate had issued directions for lodging of the FIR. SI Sushila (PW6) with ASI Jagdish Raj (PW3) visited the residence of the prosecutrix which was found locked and on enquiry SI Sushila came to know that prosecutrix used to work in a private factory. DD no. 41 B dated 13.01.2011 (Ex PW6/A) was lodged in P.S. Maya Puri regarding counselling of the prosecutrix as well as the accused through the NGO of Mr. Rajat Mitra and the counselling was done on 14.01.2011 regarding which counselling report (Ex. PW6/B) was given by the NGO to the police. On 04.02.2011, IO SI Sushila with ASI Jagdish Raj visited the house of the accused which was found locked and they were told by the Pradhan of the area that the accused has gone to his native village to his family. On 04.02.2011, IO SI Sushila with ASI Jagdish Raj visited the house of the prosecutrix where they met her son Mr. Subham who told that his mother is employed in the factory and returned at night. On 29.02.2011 IO SI Sushila with ASI Jagdish Raj visited the house of the prosecutrix where she met them and her statement under section 161 Cr.P.C. was recorded. She failed to produce the documents regarding the ownership of plot no. 31 B Nangli Vihar Extension, Village Bakrolla as well as the details of the amount given by her to the accused. On 05.05.2011, WSI Sushila took the prosecutrix for medical examination in DDU Hospital but Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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she refused to undergo her internal medical examination through she was examined by Dr. Megha (PW5) and Dr. Mohit and her MLC (Ex.PW4/A) was prepared. On the same day, IO recorded the statement under section 161 of the Cr.P.C of Ms.Kusum Devi wife of Mr. Prabhu Dayal and Ms.Meera Devi (PW7) wife of Mr. Ram Saran, neighbours of prosecutrix. On 11.05.2011, accused was interrogated and his disclosure statement (Ex.PW3/A) was prepared. On 12.05.2011, IO recorded the statement of Mr. Ram Anchal, property dealer from whom prosecutrix purchased the aforesaid plot and also prepared site plan (Ex.PW6/D). MLC of prosecutrix (Ex.PW4/A) was prepared.
TESTIMONIES OF THE PROSECUTION WITNESSES Material Witness-Prosecutrix
12. PW4, the prosecutrix, has deposed that she use to stay at her house when her husband was alive. She has three children namely Ms.Pooja, her elder daughter aged about 21 years, Master Shivam, aged about 16 years and Ms.Shivangi, aged about 13 years. In the year 2002, her husband fell seriously ill due to jaundice and he remained admitted in the hospital for about 15 days. Accused was residing in her neighbourhood and was on visiting terms. The accused used to take the meals from her house prepared by her sister to the hospital and also helped in the purchase of the articles from the market. Her husband expired in July/August 2012 and she went to the native place with her children for a month and thereafter returned. Her husband had left Rs.50,000/-Rs.60,000/- approximately in UCO Bank, Maya Puri, Delhi. Accused had helped her in opening her account in the Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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same Bank after the death of her husband by introducing her. She had told the accused that she had a committee of Rs.50,000/- besides the bank balance of her husband and requested him to search a plot for her. In the year 2003, he took her for a deal of a plot in village Nangli Dairy, Delhi and with the dealer Mr. Ram Achal she saw a plot of 30 square yards for a sum of Rs.75,000/- and she handed over Rs.100/- as a token of earnest money to Mr. Ram Achal and paid two installments of Rs.23,000/- and Rs.22,000/- in her house to Mr. Ram Achal in the presence of the accused and on his assurance. Mr. Ram Achal handed her two receipts of both the amounts to her. After about two months of the second installment, she handed over Rs. 50,000/- in cash to the accused when he was alone at her residence as the balance amount of the plot after arranging from the committee. He did not give any receipt to her of Rs.50,000/-. She also handed over a cheque of Rs. 15,000/- to the accused which was received by her as a widow pension for depositing the same in her bank account. Accused informed her that he had deposited a cheque of Rs.15,000/- in her account and that she will receive the document of the property of the plot within three months. He did not take her to the office of the Registrar for execution of the documents and assured her that he will bring the property documents to her house on his own. She waited for about two months and also requested the accused several times but he did not bring her any document. After three months, he gave her photocopy of four pages of documents affixing her photograph on the same and told her that these were the property documents of the plot which she kept in safe custody and did not inform any relative of her husband.In the year 2003, brother in law, devar of her elder sister visited her house when she showed the documents to him, he told her that they are in Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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the name of the accused. As she did not know English, she could not make out that the documents did not reflect her name as the owner but showed the accused as the owner. When accused came to her house in the evening and she confronted him, he caught her by her hair and gave beating to her regarding which she lodged the complaint with the police. After some days Mr Vijay Kumar, married son of the accused, came to her house, abused her and levelled wrong allegations against her character. In the evening, the accused came to her house and on his request, she did not make any police complaint and forgave his son. After 2-3 days, the accused borrowed Rs. 10,000/- from her for some construction work in the village which she gave after withdrawing from UCO Bank. He told her that his wife had left him and is residing else where. After some days, marriage of daughter of her elder sister was fixed but she was not allowed to leave by her employer. She let her children attend the marriage and her sister took them to the village while she remained alone in the jhuggi. She did not remember the exact date and month but it was during the summer season in the year 2003 that on one evening the accused came to her residence and inquired about her children on which she told him that she had send them for the wedding of her sister's daughter. On the request of the accused, she went and prepared tea for him and brought two cups of tea, one for him and one for herself. He asked her to bring a glass of water for him which she brought and he took it. Later, both of them had tea. After some time she started feeling nausea and went to her room to lie down while the accused remained sitting in the front room where he was watching TV. She regained consciousness around 10:30 am and found that her salwar was removed from her right leg and accused was without clothes. While she was Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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unconscious, the accused had raped her. On her questioning, he threatened that he shall defame her if she raised any alarm and so she remained silent and did not tell anyone about the incident. He took advantage of the situation and used to come frequently to her residence on the pretext of watching TV. He used to threaten her children. He repeatedly used to rape her during the night when her children were sleeping. She was scared that he would defame her before her in-laws/Jeth (husband's elder brother) and others. He continuously raped from 2003 to 2004. When she had fallen ill, he took her to ESI Hospital, Punjabi Bagh and projected her as his wife. He also entered her name as his wife and the names of her children in his ESI Card. Till she had money, the accused behaved properly with her and when her money was finished, he started misbehaving with her. His wife also returned in the meanwhile and she used to abuse her. She used to call the police when the accused and his wife used to abuse her or misbehave with her. When the police had to visit frequently, the SHO advised her to shift her residence on which she shifted to Inderpuri in a rented accommodation in the year 2008. She was also constrained to shift as she was trying to get her daughter married but accused and his wife used to instigate prospective suitors against them saying that she and her daughter were of loose character. The accused did not come to Inderpuri. She had given her jhuggi in Mayapuri to a guest who was brother in law of her elder sister on rent. On 02.01.2011, she had gone to her jhuggi in Mayapuri to take rent when the wife of accused Satya Narayan abused and assaulted her due to which she received three stitches on her nose beside other injuries on her body. She had got the FIR lodged regarding this incident. The accused and his wife had also committed theft in her jhuggi and beside her articles, Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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they had also stolen the jewellary of one Mr. Ram Parvesh which he had kept with her. She had made complaint to the police and DCW regarding the same but no action was taken. Thereafter, she had filed the complaint case (Mark X-07 pages) on the basis of which FIR was lodged. On the directions of the learned Metropolitan Magistrate, the FIR was lodged and she was medically examined in the DDU hospital vide MLC (Ex.PW4/A). Accused Satya Narayan, who is identified by her, was arrested and after investigation the charge sheet was filed. She can produce the ESI Card of the accused and the relevant documents of the property. She produced the original GPA, Will and employees medical card of the accused (Ex.PW4/PX to Ex.PW4/PZ respectively). She did not get my medical examination conducted as she had been threatened by accused. Her plot should returned to her as her dispute with the accused only regarding the plot. The accused can not return her dignity since he had raped her so atleast her plot should be returned to her. The accused continues to threaten her even today also as he is living in her neighbourhood. She wanted the accused to be punished. She has been cross examined at length on behalf of the accused.
Police Witnesses
13. PW1, HC Naresh Kumar, is the Duty officer who had recorded the FIR (Ex.PW1/A) on the basis of rukka. After registration, the original rukka and copy of FIR were given to ASI Jagdish Raj for investigation.
14. PW2, ASI Prahlad Singh, had deposed that the complaint case has been filed by the prosecutrix before the Court of learned Area Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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Metropolitan Magistrate, in which order for calling the status report had been passed. He had prepared the status report, which had been submitted by the SHO, PS Maya Puri, copy of the same is Mark A. Thereafter, learned Metropolitan Magistrate had issued directions for lodging of the FIR.
15. PW3, ASI Jagdish Raj, had deposed that he along with WSI Sushila had taken the prosecutrix to DDU hospital for her medical examination but the prosecutrix had refused to get her self medically examined. In his presence, the accused had made the disclosure statement (Ex.PW3/A).
16. PW6, SI Sushila, the Investigation Officer, had deposed that on 18.12.2010, when the investigation of the present case was marked to her by the order of ACP Tilak Nagar, the accused was still to be arrested in the present case. On that day, she along with ASI Jagdish Raj went to the residence of prosecutrix at House no.B-365, J.J.Colony, Inderpuri which was found locked. After enquiry from the neighbourhood, she came to know that prosecutrix used to work in a private factory and some one told her that the priest of Ganpati Mandi, J.J.Colony, Inderpuri is aware about the fact where prosecutrix used to work. Thereafter, she along with ASI met priest of the aforesaid temple. The priest could not tell about the name of the factory where prosecutrix use to work but he assured them that he will inform the prosecutrix about visit of police team. On 13.01.2011, DD No.41 B (Ex.PW6/A) was lodged at PS Maya Puri regarding counselling of prosecutrix as well as accused at around 11.00 am in the PS Mayapuri through NGO Mr. Rajat Mitra. On 14.01.2011, the NGO officials namely Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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Mr. Rajat Mitra and Ms. Nidhi Mitra visited PS Maya Puri and were provided address of prosecutrix as well as accused. They counseled the prosecutrix as well as the accused vide the report (Ex.PW6/B). The police team also informed Advocate Ms. Mita Choudhary regarding the counselling of victim as well as the accused. The advocate though counseled both of them but did not provide any report to the police regarding the counselling. On 04.02.2011, she along with ASI Jagdish Raj visited house of the accused at Jhuggi No.11/12, Ph-I, Maya Puri, Delhi but same was found locked. The pradhan of the area informed us that the accused had gone to his native village along with his family. Thereafter, police team visited the house of prosecutrix i.e. B-365, J.J.Colony, Inderpuri, where her son namely Mr. Shubham met them. He told the police team that his mother is employed in a factory and used to return in the night hours but he could not tell about the name of the factory. Thereafter, they returned to the PS. On 29.03.2011, she along with ASI Jagdish Raj went to the house of prosecutrix and she met them. She recorded her statement under section 161 of the Cr.P.C. She was requested vide request (Ex.PW6/C ) for her medical examination from the hospital but she refused to undergo her medical examination. Thereafter, the prosecutrix was asked to provide the documents regarding the ownership of the plot no. 31B, Nangli Vihar Extension, Village Baprola as well as the details of the amount she had given to the accused. She failed to produced the said documents to the police. On 05.05.2011, she visited the house of prosecutrix and she was again requested for her medical examination. She took the prosecutrix to DDU Hospital for her medical examination but she refused to undergo her internal medical examination though she was examined vide MLC Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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(Ex.PW4/A). On the same day, she reached jhuggi no.11/12, Maya Puri, where one lady Ms. Kusum Devi wife of Mr. Prabhu Dayal met her and she interrogated her about the incident and recorded her statement under section 161 Cr.P.C. She also recorded statement of one other neighbour namely Ms. Meera Devi wife of Mr. Ram Saran. On 11.05.2011, she visited the house of accused, met him, interrogated him and recorded his disclosure statement (Ex.PW3/A). On 12.05.2011, she went to D-105 Sewak Park, Uttam Nagar, New Delhi and met Mr. Ram Anchal, property dealer from whom prosecutrix purchased the aforesaid plot. She recorded his statement under section 161 Cr.P.C. She also prepared site plan (Ex.PW6/D) of the place of incident during investigation. Thereafter, she was transferred to Rashtrapati Bhawan and case file was handed over to MHCR.
In her cross examination on behalf of the accused, the IO has deposed that she interrogated and recorded the statement of complainant on 29.09.2011. She did not know whether other statements of the complainant were recorded by the other IOs of the case. Complainant never handed over any of the complaint to her filed by her against accused Mr.Satya Narain. Beside the other allegations, the complainant told here that she had a property dispute with the accused Mr.Satya Narain.
Medical Evidence
17. PW5, Dr. Megha had medically examined the prosecutrix and has prepared the MLC of the prosecutrix as Ex.PW5/A. As the prosecutrix refused to undergo her internal medial examination, hence no medical examination of prosecutrix was conducted by her. Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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18. PW5, Dr. Megha, who had already been examined as PW5 on 04.01.2013. She has been deputed by the Medical Superintendent, DDU Hospital to depose on behalf of Dr. Mohit, who had left the services from the hospital. She is acquainted with the hand writing and signatures of Dr. Mohit as he had worked under her supervision. She has seen the MLC Of prosecutrix which was prepared by Dr. Mohit.
Public Witness
19. PW7, Ms. Meera, had deposed that the prosecutrix was residing in the adjoining jhuggi. The husband of the prosecutrix had expired about 10 years ago. Accused Satya Narayan also resided adjoining to the jhuggi of the prosecutrix. Accused used to help the prosecutrix when her husband was ill. Accused used to visit the house of the prosecutrix. Sometimes, the accused used to take the prosecutrix to the doctor when she fell ill. Accused is of good nature. Accused had purchased one plot but she did not know the area of the same. There was a dispute between accused and the prosecutrix regarding the said plot. She is not aware whether accused made any compromise with the prosecutrix regarding the dispute of said plot. The prosecutrix had stolen the documents of said plot from accused. She did not want to say anything else. She had not made any statement to the police at any point of time.
As she is hostile and has resiled from her earlier statement and was not disclosing the dates and details, she has been cross examined by the Additional Public Prosecutor for State. She has denied that police recorded her statement under section 161 Cr.P.C. on 05.05.2011 (Mark PW-7/A) Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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and its contents.
20. The accused and his counsel have preferred not to cross examine PWs 1, 2, 3, 5, and 7. Their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
21. Mr.Ram Achal had expired and could not be produced by the prosecution in evidence.
22. The prosecution has also dropped PW Ms.Kusum from the list of witnesses as the prosecution did not want to examine her as her evidence was of repetitive nature and the statement of the Additional Public Prosecutor in this regard was made on 14.02.2013.
DISCUSSION, ANALYSIS AND OBSERVATIONS
23. 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 Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked 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.
24. Under this sphere, I now proceed to test the submissions of both the sides.
DEFENCE OF THE ACCUSED
25. 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 by the prosecutrix in order to grab his plot which he purchased from his money. He has denied all the allegation and evidence against him. He has preferred not to lead any evidence in his defence.
Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
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26. Except for cursory suggestions to the prosecutrix to the effect that the present case was made against the accused is false which has been denied by her there is nothing shown by the accused in support of his stand that he has not raped the prosecutrix.
27. Therefore, I am of the considered opinion that there is no veracity in the defence of the accused.
28. However, the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused. The prosecution cannot take advantage of the weakness of the defence of the accused.
IDENTITY OF THE ACCUSED
29. There is no dispute regarding the identity of the accused Mr.Satya Narain who has been identified by the prosecutrix. It is also not in dispute that they were known to each other prior to the lodging of the FIR.
30. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
31. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident as she has given her age as 40 years in her evidence.
Sessions Case Number : 13 of 2013.
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32. Therefore, it is clear that the prosecutrix was a major at the time of offence.
VIRILITY OF THE ACCUSED
33. The prosecution has failed to get the accused medically examined for his potency test and therefore, it cannot be said with certainty that the accused was virile. Although the prosecutrix has deposed in her evidence that one Mr.Vijay Kumar, married son of the accused had come to her house and abused her and the factum of the accused having a son has not been disputed by him but the same does not show in any manner that on the date and duration of the alleged incident of rape, the accused was potent and virile and capable of performing the sexual act or committing rape.
34. Due to the lapse of the prosecution in failure to get the accused medically examined for testing his potency, it cannot be said that he is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX
35. The MLC of the prosecutrix (Ex.PW5/A) shows that the prosecutrix has refused to get her internal medical examination conducted against medical advice. Also there she did not have any fresh external injuries.
36. These facts indicate that her version regarding her being raped are false as had she been actually raped, she would have received some Sessions Case Number : 13 of 2013.
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injuries, maybe minor.
37. Therefore, it is clear that there is no medical examination of the prosecutix (gynecology) against the accused to indicate that he has raped the prosecutrix.
MENS REA / MOTIVE
38. Regarding the motive of crime, it may be observed that in a case based on circumstantial 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 circumstantial 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.
39. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to Sessions Case Number : 13 of 2013.
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inquire whether the pattern of the crime fits in which the alleged motive.
40. 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. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. 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 own facts.
41. In the present case, a story has been projected that the accused has given some intoxicant then and raped the prosecutrix and thereafter continued to rape her for about a year w.e.f. 2003 to 2004 and this version appears to be untrue as there is no reason why he would do so.
42. The prosecutrix has deposed that her husband died in the year 2002 and the accused, being her neighbour and on visiting terms continued Sessions Case Number : 13 of 2013.
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to help and visit her. There is no reason shown why he would wait for several months to rape her after the death of her husband and then continue to rape her even when her children were in the same jhuggi.
43. There does not appear to be any criminal intention and mens rea on the part of the accused.
DELAY IN FIR
44. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration. It is claimed by the accused that as the FIR has been lodged on 17.12.2010 at 17:10 hours while the date of alleged offence of rape is February, 2003 and continuously thereafter and the date / duration of alleged cheating is after July, August, 2012 after the husband of the prosecutrix had expired till 2003. The delay in lodging of the FIR has been not explained by the prosecution.
45. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the fear of the accused.
46. As per the complaint case, Ex.PW5/D-1, it is mentioned that the offence has been committed in February, 2003 and then continuously thereafter. The MLC of the prosecutrix (Ex.PW5/A) does not mention the date and duration of offence. The prosecutrix in her evidence before the Sessions Case Number : 13 of 2013.
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Court has also mentioned the date of offence as summer season of 2003 and then continuous rape from 2003 to 2004.
47. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
48. Before coming to the merits of the present case, an argument has been raised by the counsel for the accused regarding the delay in registration of the FIR. In this regard, I may observe that 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.
49. 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 Sessions Case Number : 13 of 2013.
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could be condoned moreover when the evidence of the victim is reliable and trustworthy.
50. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
51. 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 Sessions Case Number : 13 of 2013.
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mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
52. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
53. 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"
54. I find on perusal of the record that indeed the criminal action was swung into motion on 17.12.2010 while the duration of the offence of rape is w.e.f. 2003 to 2004 (as deposed by the prosecutrix in the Court) and the date of offence of cheating is after July, August, 2002 after the husband of the prosecutrix had expired till 2003 and the delay is of about six years Sessions Case Number : 13 of 2013.
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i.e. on 03.05.2010 when the complaint case was filed by her and 17.12.2010 when the FIR was lodged. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged incident of 2003 and then from 2003 to 2004, she went to her work, to the doctor when she was not well, to the police several times when there were disputes between them etc. She had also shifted from the place of incident and even thereafter she preferred not to make any complaint of rape against the accused despite calling the police of several occasions. No explanation is coming forth from the prosecution as to why she did not tell her employer about the rape, the doctor attending to her in the hospital, the police and all the others with whom she may have come in contact with between 2003 and 2004 and even thereafter for six years. She has even been visited by relatives i.e. devar of her sister to whom she had shown the documents, but she even preferred not to disclose about the rape to him. She was not under the control of the accused between this period and could have easily disclosed about the incident if she wanted to. It also cannot be ignored that the prosecution has neither furnished any justified reason for the delay nor produced nor examined any witness to substantiate the stand of the prosecutrix in respect of the delay of six years in lodging the acse against the accused.
55. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
56. Therefore, it can be said that the FIR was lodged after a delay of about six years which is fatal to the prosecution story. The Sessions Case Number : 13 of 2013.
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delay has not been satisfactorily explained.
PUBLIC WITNESSES HOSTILE, DROPPED NOT CITED
57. The public witness, PW7, Ms. Meera, who is the neighbour of the prosecutrix and the accused Satya Narayan has deposed that the accused used to help the prosecutrix when her husband was ill. Accused used to visit the house of the prosecutrix. Sometimes, the accused used to take the prosecutrix to the doctor when she fell ill. Accused is of good nature. Accused had purchased one plot but she did not know the area of the same. There was a dispute between accused and the prosecutrix regarding the said plot. She is not aware whether accused made any compromise with the prosecutrix regarding the dispute of said plot. The prosecutrix had stolen the documents of said plot from accused. She did not want to say anything else. She had not made any statement to the police at any point of time.
58. She was declared hostile by the prosecution but nothing material for the prosecution has come forth in her cross examination.
59. She has infact deposed against the prosecution by stating that she had not made any statement to the police and that the accused had purchased one plot but she did not know the area of the same. There was a dispute between accused and the prosecutrix regarding the said plot. The prosecutrix had stolen the documents of said plot from accused. Her evidence gives a fatal blow to the prosecution case.
60. Further, the prosecution has also dropped another public witness, Sessions Case Number : 13 of 2013.
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Ms.Kusum, from the list of witnesses as the prosecution did not want to examine her as her evidence was of repetitive nature.
61. Mr.Ram Achal, a very material witness, had expired and could not be produced by the prosecution in evidence.
62. Also, in her statement under section 161 of the Cr.P.C., the prosecutrix has stated that she had given the first installment of Rs.23,000/- to Mr.Rakesh Jain but he has neither been cited as a witness nor produced nor examined by the prosecution.
63. Mr.Mansa Ram, who has sold the plot in question and whose name is mentioned in the General Power of Attorney (Ex.PW4/PX), will (Ex.PW4/PY) and the receipt (Ex.PW4/PZ) has neither been cited as a witness nor produced nor examined by the prosecution. He could have disclosed about the name of the purchaser who had bought the plot from him, whether it was the prosecutrix or the accused.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
64. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW4, the prosecutrix. The evidence of the prosecutrix is being elaborated herein below as the same is very relevant for the adjudication of the case.
65. PW4, the prosecutrix, has deposed that she use to stay at her house when her husband was alive. She has three children namely Ms.Pooja, Sessions Case Number : 13 of 2013.
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her elder daughter aged about 21 years, Master Shivam, aged about 16 years and Ms.Shivangi, aged about 13 years. In the year 2002, her husband fell seriously ill due to jaundice and he remained admitted in the hospital for about 15 days. Accused was residing in her neighbourhood and was on visiting terms. The accused used to take the meals from her house prepared by her sister to the hospital and also helped in the purchase of the articles from the market. Her husband expired in July/August 2012 and she went to the native place with her children for a month and thereafter returned. Her husband had left Rs.50,000/-Rs.60,000/- approximately in UCO Bank, Maya Puri, Delhi. Accused had helped her in opening her account in the same Bank after the death of her husband by introducing her. She had told the accused that she had a committee of Rs.50,000/- besides the bank balance of her husband and requested him to search a plot for her. In the year 2003, he took her for a deal of a plot in village Nangli Dairy, Delhi and with the dealer Mr. Ram Achal she saw a plot of 30 square yards for a sum of Rs.75,000/- and she handed over Rs.100/- as a token of earnest money to Mr. Ram Achal and paid two installments of Rs.23,000/- and Rs.22,000/- in her house to Mr. Ram Achal in the presence of the accused and on his assurance. Mr. Ram Achal handed her two receipts of both the amounts to her. After about two months of the second installment, she handed over Rs. 50,000/- in cash to the accused when he was alone at her residence as the balance amount of the plot after arranging from the committee. He did not give any receipt to her of Rs.50,000/-. She also handed over a cheque of Rs. 15,000/- to the accused which was received by her as a widow pension for depositing the same in her bank account. Accused informed her that he had deposited a cheque of Rs.15,000/- in her account and that she will receive Sessions Case Number : 13 of 2013.
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the document of the property of the plot within three months. He did not take her to the office of the Registrar for execution of the documents and assured her that he will bring the property documents to her house on his own. She waited for about two months and also requested the accused several times but he did not bring her any document. After three months, he gave her photocopy of four pages of documents affixing her photograph on the same and told her that these were the property documents of the plot which she kept in safe custody and did not inform any relative of her husband.
66. In the year 2003, brother in law, devar of her elder sister visited her house when she showed the documents to him, he told her that they are in the name of the accused. As she did not know English, she could not make out that the documents did not reflect her name as the owner but showed the accused as the owner. When accused came to her house in the evening and she confronted him, he caught her by her hair and gave beating to her regarding which she lodged the complaint with the police. After some days Mr Vijay Kumar, married son of the accused, came to her house, abused her and levelled wrong allegations against her character. In the evening, the accused came to her house and on his request, she did not make any police complaint and forgave his son. After 2-3 days, the accused borrowed Rs.10,000/- from her for some construction work in the village which she gave after withdrawing from UCO Bank. He told her that his wife had left him and is residing else where.
67. After some days, marriage of daughter of her elder sister was Sessions Case Number : 13 of 2013.
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fixed but she was not allowed to leave by her employer. She let her
children attend the marriage and her sister took them to the village while she remained alone in the jhuggi.
68. She did not remember the exact date and month but it was during the summer season in the year 2003 that on one evening the accused came to her residence and inquired about her children on which she told him that she had send them for the wedding of her sister's daughter. On the request of the accused, she went and prepared tea for him and brought two cups of tea, one for him and one for herself. He asked her to bring a glass of water for him which she brought and he took it. Later, both of them had tea. After some time she started feeling nausea and went to her room to lie down while the accused remained sitting in the front room where he was watching TV. She regained consciousness around 10:30 am and found that her salwar was removed from her right leg and accused was without clothes. While she was unconscious, the accused had raped her. On her questioning, he threatened that he shall defame her if she raised any alarm and so she remained silent and did not tell anyone about the incident. He took advantage of the situation and used to come frequently to her residence on the pretext of watching TV. He used to threaten her children. He repeatedly used to rape her during the night when her children were sleeping. She was scared that he would defame her before her in-laws/Jeth (husband's elder brother) and others. He continuously raped from 2003 to 2004.
69. When she had fallen ill, he took her to ESI Hospital, Punjabi Bagh Sessions Case Number : 13 of 2013.
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and projected her as his wife. He also entered her name as his wife and the names of her children in his ESI Card. Till she had money, the accused behaved properly with her and when her money was finished, he started misbehaving with her. His wife also returned in the meanwhile and she used to abuse her. She used to call the police when the accused and his wife used to abuse her or misbehave with her. When the police had to visit frequently, the SHO advised her to shift her residence on which she shifted to Inderpuri in a rented accommodation in the year 2008. She was also constrained to shift as she was trying to get her daughter married but accused and his wife used to instigate prospective suitors against them saying that she and her daughter were of loose character. The accused did not come to Inderpuri. She had given her jhuggi in Mayapuri to a guest who was brother in law of her elder sister on rent.
70. On 02.01.2011, she had gone to her jhuggi in Mayapuri to take rent when the wife of accused Satya Narayan abused and assaulted her due to which she received three stitches on her nose beside other injuries on her body. She had got the FIR lodged regarding this incident. The accused and his wife had also committed theft in her jhuggi and beside her articles, they had also stolen the jewellary of one Mr. Ram Parvesh which he had kept with her. She had made complaint to the police and DCW regarding the same but no action was taken. Thereafter, she had filed the complaint case (Mark X-07 pages) on the basis of which FIR was lodged. On the directions of the learned Metropolitan Magistrate, the FIR was lodged and she was medically examined in the DDU hospital vide MLC (Ex.PW4/A). Accused Satya Narayan, who is identified by her, was arrested and after Sessions Case Number : 13 of 2013.
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investigation the charge sheet was filed. She can produce the ESI Card of the accused and the relevant documents of the property. She produced the original GPA, Will and employees medical card of the accused (Ex.PW4/PX to Ex.PW4/PZ respectively). She did not get my medical examination conducted as she had been threatened by accused. Her plot should returned to her as her dispute with the accused only regarding the plot. The accused can not return her dignity since he had raped her so atleast her plot should be returned to her. The accused continues to threaten her even today also as he is living in her neighbourhood. She wanted the accused to be punished.
71. In her cross examination on behalf of the accused, PW4 has deposed that as on date she am living at D-Block, Inderpuri on rent since last three years but she did not remember the house number. In the year 2002, she was employed in a boutique and used to do the work of hemming (turpai). Her children were not working in the year 2002. The address of her jhuggi where the incident of rape occurred is A-11/12, Jhuggi no.302, Maya puri, Phase-I, Delhi. Her husband had expired in August 2002. After two days of last rites of her husband, she along with her children had gone to the native village with her in laws. They returned after about a month. She had filed the complaint case in the year 2003 in respect of the present matter. She did not remember the exact date, month and year when her statement was recorded by the police after lodging of the FIR. She had told the factum of her sister preparing food for the accused and the accused helping her in her complaint case as well as her statement to the police. She had not told the factum of her husband having an account in the UCO Bank Sessions Case Number : 13 of 2013.
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in her complaint case as well as her statement to the police. She had not told the factum of accused introducing her to the Bank for opening of a bank account in her name. She had told the factum of her having Rs.50,000/- from the committee and asking the accused to help for buying a plot in the complaint case and the statement to the police. She has admitted to be correct that she has made some improvements in her evidence before the Court from the complaint case filed by her and her statement to the police. She has denied that she had not got Rs.50,000/- from the committee nor given any such amount to the accused for purchase of a plot. She has denied that she had not given any amount to Mr. Ram Achal for purchase of the plot. She has denied that the plot had been purchased by the accused from his own resources. She has denied that she had stolen documents pertaining to the plot from the house of accused. She did not know whether or not the accused had lodged any FIR regarding any such theft. She did not remember the exact date and month but it was in the year 2003 when she had shown the documents to her brother in law (devar). Her sister Ms. Munni Devi had got married in the summer season after 2003 but she did not remember the exact date and month. She had not gone to Bihar to attend my sister's marriage but had sent her children with her other sister Ms.Geeta. The accused must have mixed something in her tea when she had gone to bring water to him as after drinking tea she had started feeling dizzy. She had then become unconscious. She is aware that she was raped by the accused as when she had regain consciousness, her salwar was partly removed and her shirt was raised. She had not mentioned about the position of her clothes to the police as she had been threatened by the accused. She had told the police about the position of her clothes and her rape after she had learnt that the Sessions Case Number : 13 of 2013.
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accused had got transferred the plot in his name instead of her name. It must be in the year 2004 but she can not tell the exact date. Police had recorded her statement in PS Mayapuri in the year 2004. Police must have recorded her statements twice or thrice but she can not tell the exact dates. She can not say whether it was in the year 2003 or 2005. Her dispute with the accused is continuing since 2003 when she learnt that the accused has got the plot transferred in his name and since then there have been police complaints and her statements have been recorded by the police. She is aware that the summer starts w.e.f May. She cannot say whether her sister Ms.Munni Devi's marriage was in May or June but it was in summer. The incident of rape after intoxication was in the summer season of 2003 which may be in May or June. She has admitted that she had mentioned in the complaint case that the incident occurred in February, 2003. She has admitted that in the complaint case, she has mentioned that she had brought one cup of tea and on asking of accused, she had brought an empty cup so that the tea could be shared between them. She has admitted to be correct that in her evidence before the Court, she had mentioned that she had brought two cups of tea. She has admitted to be correct that she had brought only cup of tea and later on the asking of accused, she had got another empty cup for sharing the tea. She has denied that the accused has never raped me. She has denied that she had never given any money to the accused for the purchase of a plot. She has denied that the accused used to help her monetarily when her husband was unwell. She has admitted to be correct that she had not mentioned in her statement to the police that she had been continuously raped till 2004 by the accused. She has denied that she was suffering from cancer at the time of alleged rape and the accused used Sessions Case Number : 13 of 2013.
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to help her monetarily. She has denied that she wanted to illegally grab the plot purchased by the accused, which is in his name. She knows Mr. Bheem as he used to go with her husband to Vaishno Devi. She has denied that she is living with Mr. Bheem now. She has denied that Mr. Bheem is on visiting terms with her after her husband's death. She had called him once as a gate had to be installed at her jhuggi. She has admitted that she along with Mr. Bheem had lodged a criminal case under section 325/34 IPC against accused Satya Narain. She has denied that the said case was compounded before the Court of Mr.M.P.Singh, learned MM on 14.01.2010 by her by taking a compensation of Rs.7000/-. The compromise was between the accused and Mr. Bheem. She had signed on the documents but only as a witness of Mr. Bheem and not regarding a compromise of the accused with her. She has denied that it was agreed that both the sides shall be withdrawing all the litigation against each other and the settlement was also in respect of the plot. She has denied that she has not been beaten by Mr. Vijay son of the accused as well as the accused himself. She has denied that Mr. Vijay, accused as well as his wife Ms. Shiv Kumari have not stolen any document from her jhuggi. She has denied that she has not lodged any case regarding rape and the plot against the accused prior to the year 2010. She has denied that when the accused under section 325/34 of the IPC was lodged against the accused, she had not stated to the police that she has been raped by the accused.
OFFENCE OF INTOXICATION, RAPE AND THREAT
72. It is necessary to understand the relevant sections before considering whether or not the offence is proved to have been committed by Sessions Case Number : 13 of 2013.
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the accused.
73. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age.
74. Section 328 of the IPC is elaborated herein under as follows:
Causing hurt by means of poison, etc., with intent to commit an offence.-whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
75. Section 506 of the IPC is elaborated herein under as follows:
Punishment for criminal intimidation.-Whoever commits, the offence of criminal intimidation shall be punished with Sessions Case Number : 13 of 2013.
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imprisonment of either description for a term which may extend to two years, or with both;
If threat be to cause death or grievous hurt, etc. - And ift he threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or {imprisonment for life}, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
76. It is a case of heinous crime of rape, which caries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that the 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.
77. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved.
Sessions Case Number : 13 of 2013.
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78. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (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).
79. The prosecutrix has claimed that the accused administered something intoxicating in her tea and then raped her. However, no intoxicating or stupefying substance has been recovered from the possession of the accused.
80. It may be mentioned here that the hon'ble Delhi High Court in the case reported as Santosh Kumar v. State, 2008 (4) JCC 2919 has observed that no conviction can simply be on the basis of the statement of the witness that he became unconscious because of eating the biscuit or drinking tea offered to him by the accused as there had to be medical evidence to the effect that the victim had become unconscious because of consuming any drug or intoxicating substance etc. mixed with tea or biscuit. Sessions Case Number : 13 of 2013.
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No such substance had been recovered from the accused.
81. Further, the prosecutrix has deposed that after having cheated her (offence of cheating is discussed later), he came to her house and on the request of the accused, she went and prepared tea for him and brought two cups of tea, one for him and one for herself. He asked her to bring a glass of water for him which she brought and he took it. Later, both of them had tea.
82. No plausible reason is shown by the prosecution as to why the prosecutrix after having been allegedly cheated of her savings, committee and her late husband's savings, she allowed the accused to enter into her premises and as to why she entertained him by preparing tea and bringing water. If she had actually been cheated by the accused, she would not have even talked to him and not permitted him to enter her house and entertaining him in her house would never have been done.
83. Further, there are different versions coming in the different statements of the prosecutrix regarding the cups of tea brought by her which are as follows:
Examination-in Cross Complaint Case- Statement under chief examination Ex.PW4/D1 section 161 of the Cr.P.C.-
Ex.PW4/D2
I went and I had brought one Prepared one cup Maine apne aur
prepared tea for cup of tea and on of tea and offered it Satya Narain ke liye
him and brought asking of the to him. chai banai
two cups of tea, one accused I had
for him and one for brought an empty
myself. cup so that the tea
Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011
FIR No. 145/10, Police Station Mangol Puri,
Under sections 406, 420,506 and 376 of the Indian Penal Code.
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could be shared
between us.
Continuously raped No such deposition. No such deposition. No such deposition. till 2004.
84. These contradictions in the number of cups of tea have not been explained by the prosecution. If there was only one cup of tea, then the alleged mixing of the intoxicant would have been only in that one cup and when it was shared, even the accused should have felt nausea as the prosecutrix.
85. Further, the prosecutrix has deposed that after taking tea, after some time she started feeling nausea and went to her room to lie down while the accused remained sitting in the front room where he was watching TV. She regained consciousness around 10:30 am and found that her salwar was removed from her right leg and accused was without clothes. While she was unconscious, the accused had raped her.
86. It has not been explained by the prosecution that when the prosecutrix was alone at home and the accused had come there, after taking tea when she felt nausea, why did she not ask the accused to leave immediately and whey instead she permitted him to watch TV while she herself went to lie down. The fact that she did let him watch TV indicates that whatever may have occurred was with her consent.
87. There are some more contradictions in the different statements Sessions Case Number : 13 of 2013.
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of the prosecutrix which are tabulated below:
Examination-in Cross Complaint Case- Statement under
chief examination Ex.PW4/D1 section 161 of
the Cr.P.C.-
Ex.PW4/D2
During summer Marriage of her In February, 2003 No mention about
season of 2003, her sister Ms.Munni her children had her sister's
children were away Devi was in summer gone to attend a marriage where her
for the wedding of season after 2003 marriage in the children had gone
her sister's and her children native village. and she was alone
daughter. had gone to Bihar at home.
and she was alone
at home.
Salwar from right No such deposition. She found that her Salwar from one leg leg was removed. clothes were not on was removed.
her body.
No such deposition. No such deposition. In September, 2006, No such deposition.
accused gave
merciless beating to
her and put a knife
to kill her.
Accused had taken The accused took First installment of
Rs.50,000/- besides Rs.75,000/- from Rs.23,000/- paid to
her having paid Rs. her Mr.Rakesh Jain.
100/- as token of Second installment
earnest money and of Rs.22,000/- given
two installments of to accused. Rs.
Rs.23,000/- and Rs. 30,000/- given to
22,000/- to Mr. accused.
Ram Achal (total of
Rs.95,100/-).
Accused and his No such deposition. No such deposition. No such deposition. wife used to abuse and misbehave with her.
Accused took her to No such deposition. No such deposition. No such deposition. ESI hospital when she was ill and projected her as his wife; entered her Sessions Case Number : 13 of 2013.
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name as his wife
and of her children
in his ESI Card.
Mr.Vijay Kumar, No such deposition. No such deposition. No such deposition.
married son of the accused, came to her house, abused her and caste wrong allegations regarding her character.
Accused and his No such deposition. No such deposition. No such deposition. wife had committed theft of her articles.
Accused and his No such deposition. No such deposition. No such deposition.
wife used to instigate the prospective suitors of her daughter against them saying that she and her daughter were of loose character.
Till she had money, No such deposition. No such deposition. No such deposition.
the accused used to behave properly with her and when her money finished, he started misbehaving with her.
88. The prosecutrix has claimed in her examination in chief that the accused used to come frequently to her residence on the pretext of watching TV. He used to threaten her children. He repeatedly used to rape her during the night when her children were sleeping. The fact that she permitted him to come to her residence, watch TV and have physical relations with her Sessions Case Number : 13 of 2013.
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frequently only indicates that the same was with her consent. Had there been any threat, it would have been only for a particulat time and not for an indefinite period. She was living in a residential area, going out to work, in association with others, in contact with the police, and could have taken there help if there was any threat or she needed help.
89. She has also appeared as a witness in a case against the accused lodged by her and one Mr.Bheem who later compromised the same (as admitted in her cross examination dated 07.01.2013) and could have always disclosed about the alleged rape before the learned Magistrate trying the matter.
90. It may be mentioned here that in the certified copies of the record of the FIR number 429 of 2006, Police Station Maya Puri, it transpires that the prosecutrix and Mr. Bheem Sen had lodged the criminal case under section 325/323 IPC against accused and the said case had been compromised vide order dated 30.01.2010 of the Court of Mr. M.P.Singh, learned Metropolitan Magistrate, West,Delhi and they had been also given a total sum of Rs.7000/- as compensation by the accused. The prosecutrix in the present case in her evidence has denied taking any compensation in the case before the learned Metropolitan Magistrate but her deposition is completely false as she had taken a compensation and compromised with the accused.
91. She has claimed in her examination in chief that she was continuously raped by the accused till 2004. However, this important fact Sessions Case Number : 13 of 2013.
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she has failed to mention in her complaint case which has been prepared after due legal advice. No explanation is coming forth from the prosecution regarding this major lapse.
92. The fact that the prosecutrix was taking the benefit of ESI Hospital as the accused had entered her name as his wife and of her children in his ESI Card shows that she was very much a consenting party and was in physcal relationship with the accused voluntarily and with her free consent, without any threat, pressure, coercion or influence. She has never complained to any authority and ESI that the accused had manipulated her name wrongly as his wife in his ESI Card.
93. Although this is a case of rape and cheating but the prosecutrix has deposed in her cross examination on 07.01.2013 that her dispute with the accused is continuing since 2003 when she learnt that he has got the plot transferred in his name and since then there have been police complaints. (However, no such record of the police complaints has been produced and proved by the prosecution.) She also deposed that "My plot should be returned to me as my dispute with the accused only regarding the plot."
94. The prosecutrix has deposed that on her questioning, he threatened that he shall defame her if she raised any alarm and so she remained silent and did not tell anyone about the incident. He took advantage of the situation and used to come frequently to her residence on the pretext of watching TV. He used to threaten her children. He repeatedly used to rape her during the night when her children were Sessions Case Number : 13 of 2013.
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sleeping. She was scared that he would defame her before her in-laws/Jeth (husband's elder brother) and others. He continuously raped from 2003 to 2004.
95. However, the effect of the alleged threat, has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused as she remained in his association for a very long time w.e.f. 2003 to 2004 and there was no reason why she could not have disclosed about the alleged threat to the neighbours, family, police, doctors and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that she herself was in the company of the accused with her consent so much so that she was even taking the benefit of the ESI Hospital through him.
96. Also, when it has been observed that neither any intoxicating substance was administered to her nor she was raped, the question of her being threatened also does not arise.
97. 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. Sessions Case Number : 13 of 2013.
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Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. 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).
98. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
99. It is clear that the prosecutrix had willfully remained with the accused and had physical relationship with him being a consenting party.
100. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 328, 376 and 506 of the IPC as Sessions Case Number : 13 of 2013.
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the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused.
101. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
102. This brings me to the final question as to whether it was she was intoxicated, raped and threatened by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been taken away by the accused after he administered some intoxicating substance in tea to her but there are several contradictions in her different statements which remain unexplained and indicate that she was with the accused voluntarily and without any threat, pressure, influence or coercion and had physical relations with him.
103. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary Sessions Case Number : 13 of 2013.
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participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
104. 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.
105. 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.
106. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
107. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in Sessions Case Number : 13 of 2013.
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respect of the offence of intoxication, rape and threat and the accused merits to be acquitted for the offence under sections 328, 376 and 506 of the IPC.
OFFENCE OF CHEATING
108. Before discussing the offence of cheating allegedly committed by the accused, it is necessary to understand the concept and meaning of cheating.
109. Section 415 of the IPC explains cheating as follows:
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.
110. The punishment of cheating is provided in section 420 of the IPC which is elaborated below:
Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Sessions Case Number : 13 of 2013.
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111. In the evidence before the Court, the prosecutrix has deposed that the accused has cheated her by taking money from her for the plot to be bought in her name but he has purchased the same in his own name. She has Rs.50,000/-Rs.60,000/- approximately left by her husband in UCO Bank, Maya Puri, Delhi and a committee of Rs.50,000/-. In the year 2003, he took her for a deal of a plot in village Nangli Dairy, Delhi and with the dealer Mr. Ram Achal she saw a plot of 30 square yards for a sum of Rs.75,000/-
and she handed over Rs.100/- as a token of earnest money to Mr. Ram Achal and paid two installments of Rs.23,000/- and Rs.22,000/- in her house to Mr. Ram Achal in the presence of the accused and on his assurance. Mr. Ram Achal handed her two receipts of both the amounts to her. After about two months of the second installment, she handed over Rs.50,000/- in cash to the accused when he was alone at her residence as the balance amount of the plot after arranging from the committee. He did not give any receipt to her of Rs.50,000/-. She also handed over a cheque of Rs.15,000/- to the accused which was received by her as a widow pension for depositing the same in her bank account. Accused informed her that he had deposited a cheque of Rs.15,000/- in her account and that she will receive the document of the property of the plot within three months. He did not take her to the office of the Registrar for execution of the documents and assured her that he will bring the property documents to her house on his own. She waited for about two months and also requested the accused several times but he did not bring her any document. After three months, he gave her photocopy of four pages of documents affixing her photograph on the same and told her that these were the property documents of the plot which she kept in safe custody and did not inform any relative of her husband. In the year 2003, Sessions Case Number : 13 of 2013.
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brother in law, devar of her elder sister visited her house when she showed the documents to him, he told her that they are in the name of the accused. As she did not know English, she could not make out that the documents did not reflect her name as the owner but showed the accused as the owner.
112. The prosecution and the prosecutrix have failed to produce the account book or statement of account of her husband to show that he had left Rs.50,000/-Rs.60,000/- approximately in UCO Bank, Maya Puri, Delhi. They have also failed to produce the account book in respect of the account which the accused allegedly had helped her in opening in the same bank after the death of her husband by introducing her. Also, no proof of the committee of Rs.50,000/- available with the prosecutrix has been produced and proved.
113. The prosecutrix has also failed to furnish the address of the plot in village Nangli Dairy, Delhi which she has allegedly purchased from the dealer Mr. Ram Achal. She has also failed to produce and prove the receipt of the Rs.100/- given as a token of earnest money to Mr. Ram Achal and the receipts of two installments of Rs.23,000/- and Rs.22,000/- given in her house to Mr. Ram Achal in the presence of the accused and on his assurance although she has deposed that Mr. Ram Achal handed her two receipts of both the amounts to her. She has also not produced and proved the source of over Rs.50,000/- she had alegedly given in cash to the accused when he was alone at her residence as the balance amount of the plot after arranging from the committee. She has also not produced and proved that a cheque of Rs. 15,000/- was received by her as a widow pension as well as the factum of Sessions Case Number : 13 of 2013.
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her giving the same to the accused for depositing the same in her bank account. She has also not proved whether it was deposited in her account.
114. All these facts throw a shadow of doubt of the prosecution version whether such amounts were ever given by the prosecutrix to the accused.
115. It is also clear from he testimony of the prosecutrix that she never went to the office of the Registrar for execution of the documents and therefore, the alleged property could not have been transferred in her name.
116. She has not explained as to why she did not inform any relative of her husband or even anyone else when later the accused gave her photocopy of four pages of documents affixing her photograph on the same and told her that these were the property documents of the plot which she kept in safe custody and instead waited till 2003, when the brother in law (devar) of her elder sister visited her house and she showed the documents to him. She had all the opportunity to check and cross check the photocopy of the documents allegedly given to her by the accused especially when she is 5th class passed (as stated by her in her particulars at the time of her evidence).
117. Further, even after she came to know that the documents did not reflect her name as the owner but showed the accused as the owner, why she did not immediately lodge any complaint against the accused is not explained by the prosecution. Instead, she again gave Rs.10,000/- after Sessions Case Number : 13 of 2013.
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withdrawing from UCO Bank to the accused for some construction work in the village. If she had been cheated by the accused, there was no reason fro her to give him more money.
118. Also, the prosecution and the prosecutrix have also failed to produce and prove, the complaint lodged by her against the accused when accused came to her house in the evening and he caught her by her hair and gave beating to her.
119. She has also failed to give a justified reason as to why she did not lodge any complaint against Mr Vijay Kumar, married son of the accused, who came to her house, abused her and levelled wrong allegations against her character.
120. It also cannot be ignored that in the complaint case-Ex.PW4/D-1 in paragraph number 5, the prosecutrix has averred that the accused took Rs. 75,000/- from her while in her evidence before the Court she has deposed that he had taken Rs.50,000/- besides her having paid Rs.100/- as token of earnest money and two installments of Rs.23,000/- and Rs.22,000/- to Mr. Ram Achal (total of Rs.Rs.95,100/-). If the price of the plot was Rs.75,000/- (as deposed by the prosecutrix in her evidence) then there was no reason for her to pay Rs.100/- as token of earnest money and two installments of Rs. 23,000/- and Rs.22,000/- to Mr. Ram Achal and Rs.50,000/- to the accused as the amount totals to Rs.95,100/- which is much more than the price of the plot.
Sessions Case Number : 13 of 2013.
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121. The prosecution has failed to explain as to why the prosecutrix has given much more than the alleged settled amount for the plot to the accused.
122. Also, in her statement under section 161 of the Cr.P.C., the prosecutrix has stated that she had given the first installment of Rs.23,000/- to Mr.Rakesh Jain but he has neither been cited as a witness nor produced nor examined by the prosecution.
123. In the General Power of Attorney (Ex.PW4/PX), will (Ex.PW4/PY) and the receipt (Ex.PW4/PZ) neither the name of the prosecutrix is mentioned nor her photograph is affixed. The receipt shows that the price of the plot is Rs.25,000/- and not Rs.75,000/- as claimed by the prosecutrix. This fact also indicates that the claim of the prosecutrix is false.
124. The prosecutrix has also not filed any civil case for injunction or declaration or any other case in respect of the plot which has been purchased alleged by from her money by the accused in her name, by cheating and defrauding her.
125. The delay in lodging of the FIR which is fatal to the prosecution case has already been discussed above.
126. All the above facts and the ratio laid down the above cited judgments indicate that there is no veracity in the prosecution case in Sessions Case Number : 13 of 2013.
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respect of the offence of cheating and the accused merits to be acquitted for the offence under section 420 of the IPC.
INVESTIGATION
127. The investigation conducted in the present case has been deposed by PWs 2, 3 and 6. The FIR has been proved by PW1. The MLC of the prosecutrix has been proved by PW5. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
128. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.
129. One striking fact which has emerged is that PW6 SI Sushila, the Investigation Officer, has deposed that ASI Jagdish Raj was with her during the investigation, had gone to the house of the prosecutrix, to the temple, to the residence of the accused, etc. but PW3 ASI Jagdish Raj has not deposed even an iota of evidence in respect of the above facts. This difference is the evidence of PWs 3 and 6 causes suspicion that ASI Jagdish Raj was never associated in the investigation and is a planted witness.
130. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
State versus Satya Narain -:: Page 56 of 60 ::-
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131. 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.
132. Therefore, the lapses in the investigation especially the role of PW3 is not being taken into consideration although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
133. Since the prosecutrix as PW4 is neither reliable nor believable as there are overwhelming contradictions in her different statements, 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.
134. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish intoxication, rape, threatening and cheating by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
State versus Satya Narain -:: Page 57 of 60 ::-
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135. 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:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
136. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Satya Narain stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor at the time and duration of the alleged incident i.e. 2003 to 2004. It also stands established that the accused had neither intoxicated her, raped her nor threatened to kill her nor cheated her. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
137. Therefore, there is no force is the contention of the Additional Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
State versus Satya Narain -:: Page 58 of 60 ::-
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Public Prosecutor that the prosecutrix was intoxicated, raped, threatened and cheated by the accused.
138. 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.
139. Accordingly, Mr.Satya Narain, the accused, is hereby acquitted of the charges.
140. It would not be out of place to mention here that today there is so much public outrage and a hue and cry 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 unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the 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.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
141. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
State versus Satya Narain -:: Page 59 of 60 ::-
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142. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
143. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
144. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 18th day of May, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 13 of 2013.
Unique Case ID Number : 02401R0621062011 FIR No. 145/10, Police Station Mangol Puri, Under sections 406, 420,506 and 376 of the Indian Penal Code.
State versus Satya Narain -:: Page 60 of 60 ::-