IN THE COURT OF SHRI [ENTITY] : DISTRICT JUDGE (EAST) cum ADDL.SESSIONS JUDGE, KARKARDOOMA COURTS, DELHI. SC No.05/2010 Unique Case ID No.02402R03651822009 FIR No.444/2009 Police Station Mandawali Under [SECTION] [ACT] [ENTITY] Versus [ENTITY] S/o Ram Murti Gupta R/o Kusum Ka Makan, Village Bhollapur, Jumma Colony, [ENTITY], Ghaziabad, UP. Date of Institution : 14.01.2010 Date of judgment reserved : 04.04.2011 Date of judgment : 13.04.2011 JUDGMENT
Accused [ENTITY] (in Judicial Custody) has been sent to face trial by the police of PS Mandawali for the offences punishable under [SECTION] [ACT]. 2 Briefly stating, the facts of the prosecution case are that DD No.71B was received by ASI [ENTITY]). On receipt of said DD, he along with Ct. [ENTITY](PW4) reached at the spot i.e. F 103, Gali No.3, West Vinod Nagar, Delhi where [ENTITY] met them and gave her statement dated 16.09.2009 Ex.PW8/A. 3 In her statement Ex.PW8/A, prosecutrix [ENTITY] (PW8) (hereinafter shall be referred as complainant) stated that accused [ENTITY] was residing in the same street in which her house was situated. Accused used to visit her house every now and then and he was married to one [ENTITY]. Accused and [ENTITY] were residing separately for the last about two years. She further stated that at that time accused was residing at [ENTITY], Sahibabad. About 1 months prior to the date of her statement, accused took her to the house of his friend situated in Ghaziabad, U.P. by inducing her. At that time, there was no one in the said house and he was having key of the room. Accused opened the lock of the room and brought her inside. When complainant asked as to why he had brought the complainant to that place, accused told that he had to talk something. Accused bolted the door and forcibly committed rape upon the complainant despite her resistance. Thereafter, accused left the complainant on main road of Joshi Colony and went away. Thereafter, accused gave threats to the complainant on telephone and blackmailed her. Accused threatened the complainant that if she disclosed the incident to anyone and not fulfilled his demand, she would be defamed. Accused misrepresented the complainant for marriage and induced her. When the complainant asked accused to marry her, he kept on putting her off on one pretext or the other. Accused used to take the complainant to [ENTITY] on his motorcycle after every 2/3 days and used to commit rape upon her. Due to fear, complainant had not informed any of her family members. On 16.09.2009, accused telephoned the complainant and called her near Niti Apartment where he threatened the complainant that if she did not accompany her, she would be defamed. Accused forcibly took the complainant to [ENTITY] where rape was committed upon her. She further stated that accused had taken Rs. 50,000/ in total from the complainant within the period of last one and half months.
4 On the basis of statement Ex.PW8/A of the prosecutrix(PW8), ASI [ENTITY]) prepared the rukka by making endorsement Ex.PW10/A on the statement of the prosecutrix and handed over the same to Ct [ENTITY](PW4), who took the same to Police Station for the registration of the case. The duty officer PW2 [ENTITY] recorded the FIR, Ex.PW2/A for the offences punishable under [SECTION] [ACT] on the basis of rukka sent by ASI [ENTITY] (PW10)
5 During investigation, prosecutrix(PW9) was medically examined in LBS Hospital by Dr. [ENTITY]) vide her MLC Ex.PW5/A. Prosecutrix [ENTITY] has also been medically examined by PW9 Dr. [ENTITY]. After medical examination of the prosecutrix, doctor handed over sealed pullandas/ exhibits of the case and MLC of the prosecutrix to Lady [ENTITY] (PW3) who handed over same to the Investigating Officer and same were seized vide seizure memo Ex.PW3/A. At the instance of secret informer, accused was arrested from FBlock, West Vinod Nagar vide arrest memo Ex.PW4/A and his personal search Ex.PW4/B was conducted. Thereafter, accused was medically examined by Dr. [ENTITY] (PW7) vide MLC Ex.PW7/A. PW6 Dr. [ENTITY] gave his forensic report Ex.PW6/A opining that there was nothing to suggest that accused was incapable of performing sexual intercourse. Three sealed pullandas containing underwear of the accused, pubic hair and blood in gauze piece with the seal of hospital were taken into possession vide seizure memo Ex.PW1/C. Exhibits of the case were deposited in malkhana and thereafter were sent to FSL, Rohini and reports Ex.PW10/X and Ex.PW10/Y were obtained. 6 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where accused was supplied with the copies of documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused. 7 The charge was framed against the accused on 04.02.2010. Accused was charged for the offences punishable under [SECTION] [ACT] which reads as under : That during the period from 16.09.2009 to 1 months prior to 16.09.2009, you induced [ENTITY], wit intent or knowing it to be that she might be forced to marry or knowing it to be like that she might forced or seduced to illicit intercourse with you and thereby committed an offence punishable under [SECTION] [ACT] and within my cognizance.
That during the aforesaid period, after inducing [ENTITY] from her House F103, Gali No 3, West Vinod Nagar, Delhi, within the jurisdiction of PS Mandawali, you took her to a house at Koshambi, Sahibabad, and several times committed rape upon her and thereby committed an offence punishable under [SECTION] [ACT] and within my cognizance.
8 Accused [ENTITY] pleaded not guilty to the charges framed against him and claimed trial. 9 In support of its case, prosecution has examined ten witnesses. PW8 Ms [ENTITY] is the prosecutrix. PW1 Ct. [ENTITY] joined the investigation of the case, took the accused to LBS Hospital and got him medically examined, obtained sealed pulandas from the doctor and handed over to the Investigating Officer. PW2 [ENTITY] was working as duty officer at the relevant time and recorded FIR Ex.PW2/A in this case. PW3 Lady [ENTITY] got the prosecutrix medically examined. PW4 Ct. [ENTITY] also joined the investigation conducted by Investigating Officer(PW10) ASI [ENTITY]. PW5 Dr. [ENTITY] medically examined the prosecutrix vide MLC Ex.PW5/A. PW9 Dr. [ENTITY] who was working as CMO had also medically examined the prosecutrix. PW7 Dr. [ENTITY] medically examined accused vide MLC Ex.PW7/A. PW6 Dr. [ENTITY] gave report Ex.PW6/A regarding fitness of the accused for performing sexual intercourse with a woman. PW10 ASI [ENTITY] is the Investigating Officer of this case.
10 The statement of the accused has been recorded under [SECTION] [ACT] in which he has stated that he is innocent and has been falsely implicated in the present case. Accused opted to adduce evidence in his defence. He has examined himself as DW1. 11 In his statement, accused has stated that he is doing travelling business. He is 10th fail and knew the complainant for the last 8 years. Cousin brother of complainant, namely, [ENTITY] was having business dealings with him and he was the partner with the accused in purchase of the land. [ENTITY] refused to transfer the land in favour of accused despite receiving consideration and since then he was having dispute with him. Accused was friendly with the complainant for the last two years on the from the date of incident as she used to visit his house and she was friendly with his wife and children. He has further deposed that he had never taken any money from the complainant at any point of time. On the other hand, [ENTITY] used to telephone him on his mobile phone for fixing the place and time for meeting. He has further testified that landlady of his rented premises in [ENTITY] knew the complainant very well. There were 18 rooms in the said premises occupied by different tenants and they also used to meet him and the complainant. Complainant had also paid rent to her landlady [ENTITY] 23 times. He has further deposed that on their visit to [ENTITY] on 16.09.09, his wife [ENTITY] and [ENTITY], sister of [ENTITY], all of a sudden reached there and caught them and that is why she made the present complaint to police. His wife also lodged a police complaint copy of which is Ex.PW10/DA. According to her complainant was given beatings by her sister and number of people had gathered there and as a counter blast, [ENTITY] made the complaint which is false.
12 I have heard Shri [ENTITY], learned Addl. PP for the [ENTITY] and Shri [ENTITY], learned Amicus Curiae for the accused. I have carefully gone through their submissions and the record of the case.
13 Ld. Addl. PP for the [ENTITY] has argued that complainant has fully supported the case of the prosecution that she was abducted by the accused with intent that she may be forced or seduced to have illicit intercourse with him. It is further argued that the factum of rape has duly been established from the statement of complainant and her testimony needs no corroboration. 14 On the other hand, Ld. Amicus Curiae for accused has argued that there was no forcible rape by the accused, rather complainant was a consenting party to have sexual intercourse with the accused. It is further argued that complainant was major at the time of alleged rape and was having family relations with the accused. It is further argued that medical report of complainant does not support the case of the prosecution inasmuch as there is no injuries on her private parts. It is further argued that there is no corroboration to testimony of the complainant. She remained in the company of accused for about 1 months on her free will and consent. It is further argued that there was money dispute between accused and complainant which led to lodging of present case. It is further argued that there is delay in lodging the FIR.
15 In the case of the offences under [SECTION] [ACT], the statement of the girl is the most important evidence. Her statement alone is sufficient for the prosecution to establish its case. Hon'ble Supreme Court in case of [ENTITY] of Punjab Vs. Gurmit Singh (Reported in AIR 1996 SC 1393) has held that the testimony of a victim of sexual assault needs no corroboration and conviction can be founded on her testimony alone unless there are compelling reasons. In the case reported in Vishveshvaran Vs. [ENTITY] (Reported in AIR 2003 SC 2471), the Hon'ble Court has held that to appreciate the evidence of the prosecutrix, the courts have to adopt a different approach and shall not be get swayed by minor contradictions or discrepancies and defective investigation.
16 With these observations and the background of the case, let us examine the statement of the complainant to find out if it is trustworthy and can be acted upon to convict the accused. Rape 17 To prove the allegations of rape, the prosecution has examined the prosecutrix/ complainant (PW8). She deposed that she knew accused as he had been residing in her street. Accused used to come to her house and they were on visiting terms. Accused was residing separately from his wife. Accused came to her residence and asked for Rs. 10,000/ and she paid the same. Thereafter also, she paid Rs. 10,000/ to the accused. One day, she was taken by accused on his bike with promise to return the money. She was taken to [ENTITY], Ghaziabad where she was taken to a room. In the room, accused forcibly committed rape upon her despite her resistance. Thereafter, accused dropped her at Niti Apartment. Thereafter, accused telephoned her and threatened to kill her. Accused also threatened that if complainant did not fulfill his wishes, she would be defamed. After 2/3 days, under threat, complainant accompanied the accused to the same place and rape was again committed upon her. Accused had been blackmailing her and obtaining money from her. She further deposed that on 16.09.2009, same scene was repeated. Accused took about Rs. 50,000/ from the complainant. After coming back from that place, she narrated the story to her sister and thereafter complaint Ex.PW8/A was made to the police. She further stated that during the entire period, accused had been insisting her to marry with him but she had been refusing to do so.
18 During the course of cross examination, complainant (PW8) stated that wife of accused, namely, [ENTITY] was a regular visitor to her house even before her marriage with the accused. [ENTITY] and accused were residing in her street prior to their marriage. She further stated that the accused married about 56 years back from the date of incident. She further stated that she had participated in the marriage of accused with [ENTITY]. She admitted that she figured in photograph Ex.PW8/DA along with accused and her sisters. She further admitted that she was having family relations with the family of accused and they used to go together for picnic and parties and also participated in family functions. She even disclosed the name of children of accused as [ENTITY] and [ENTITY]. She also admitted that she figured in photographs Ex.PW8/DB to Ex.PW8/DE. She also admitted that letter Ex.PW8/DF is in her handwriting and same was delivered when accused asked her to deliver the money. She further stated that she was not doing any job or work and source of income was rent which was Rs. 10,000/ per month. She had given the amount to the accused after withdrawing same from her account. She further stated that first visit to [ENTITY] might be about 12 months prior to 16.09.2009 and the amount was paid on 17.06.2009.
19 Though, as per pronouncement of Hon'ble Apex Court in case titled [ENTITY] of Punjab vs. Gurmit Singh (supra) it is correct that the statement of the prosecutrix alone is sufficient to hold the accused guilty, but when there are compelling reasons, then her testimony needs due corroboration.
20 It is alleged against the accused that he committed rape with the complainant (PW8) against her will and without her consent. The consent has to be seen from the circumstances brought on record.
21 The complainant (PW8) has categorically deposed in her examination in chief that she knew the accused as he was living in the same street. She also stated that wife of accused, namely, [ENTITY], was regular visitor to her house even before her marriage with the accused. She was well aware of the fact that accused had married with [ENTITY] and the complainant even admitted her presence in the marriage of accused. Photograph Ex.PW8/DA is marriage photograph of accused in which complainant (PW8) admitted her presence along with her sisters. Complainant also admitted that she was having family relations with the family of accused as they used to go out for picnic together and she also participated in family functions. The familiarity of complainant with the accused is also apparent from the fact that she disclosed the name of children of accused. She also admitted her presence in other photographs Ex.PW8/DB to Ex.PW8/DE. Perusal of these photographs shows that the complainant along with her family members figured with the accused and his family.
22 The intimacy of complainant with the accused is apparent from the letter Ex.PW8/DF which she is admitted to have written and handed over to the accused. In this letter, she mentioned her love and affection for the accused. The admission of complainant that she was having family relations with the accused, his wife [ENTITY], photographs Ex.PW8/DA to DE and letter Ex.PW8/DF establish the fact that the complainant was having intimacy with the accused much prior to alleged incident of rape.
23 As per complaint Ex.PW8/A, complainant has mentioned that 1 months prior to 16.09.2009, accused took her to house of his friend at Ghaziabad. Accused was having key of the room and after opening the lock, he took the complainant inside the room where he committed rape upon her despite her resistance. During that period, accused had taken Rs.50,000/ in total from her. The stand of the complainant has completely changed in her examination in chief before the Court wherein she deposed that accused came to her house and asked for Rs.10,000/ which she gave. Thereafter, again she gave Rs.10,000/ to the accused. She categorically stated that one day, she was taken by the accused on the pretext of returning money to Ghaziabad. She was taken to a room where rape was committed upon her despite her resistance. During cross examination, complainant stated that accused was tenant in that room.
24 From the statement of complainant, it is not clear whether she was taken by the accused to Ghaziabad either to the room of his friend or to his rented room. It is also not clear whether the money was given by the complainant to the accused before alleged commission of rape upon her or thereafter. In the complaint Ex.PW8/A, it is mentioned that the accused used to blackmail the complainant after commission of alleged rape but in her examination in chief, she stated that she paid money to the accused prior to the incident of rape. Even factum of lending money does not stand established inasmuch no bank pass book showing withdrawal of money has been produced by her as it was her own case that she used to give money to the accused after withdrawing it from her bank account.
25 According to her own case, accused started threatening and blackmailing her after very first incident of rape and for that purpose he used to give telephonic threats on her mobile. Quite surprisingly, she could not tell her telephone number in the court. But it is apparent from the complaint Ex.PW8/A that she disclosed her mobile No. 9953988658 to the police at the time of recording her statement in the Police Station. The prosecution has also not produced the call details of said mobile phone of the complainant to establish the fact that any threat or blackmailing was ever extended or done by the accused or accused used to call her. In the absence of such evidence, it can not be easily ascertained that accused ever called the complainant or extended threats to her for defaming her in the society if she had not accompanied the accused. 26 It is the case of the prosecution itself that after commission of alleged rape, accused left the complainant near her house and after 23 days, she again accompanied the accused under threat. It is an admitted fact that complainant was a major girl and was having 23 days after the first incident of alleged rape upon her to disclose to her sisters or any friend of hers. It is not the case of the complainant that she was threatened on the very first day of alleged rape by the accused not to disclose the incident to anyone. Therefore, conduct on her part was to disclose the happening forcible rape upon her to her sisters or any near relative at the first available opportunity but she did not do so and kept mum for 23 days. And even thereafter she again accompanied the accused to his room in [ENTITY] on the ground that she was threatened over telephone. It is admitted case that accused rode her to [ENTITY] on his motorcycle. On the way of [ENTITY], she could have raised alarm and had called for help from the public but she did not do so which also creates suspicion about genuineness of her testimony.
27 The prosecution has not examined the sister of the complainant whom she is deposed to have disclosed the factum of rape. She could be the best evidence to corroborate the factum of rape but the best evidence in the form of testimony of her sister has been withheld for the reasons best known to the prosecution. It is settled that parties are bound to produce best evidence in their possession whether they have been called upon to do so or not and failure of production of such evidence would result into warranting adverse inference against such party. If any authority for this proposition of law is required, then Gajender Singh vs [ENTITY] of UP AIR 1975 SC 1703 can be relied upon.
28 So, from the abovementioned facts and circumstances it is established that the complainant (PW8) being a major girl, was a consenting party in having sexual intercourse with the accused. The prosecution has failed to prove on record that rape, if any, was committed by the accused under inducement of marriage. In similar circumstances Hon'ble Apex Court in case titled Deelip Singh @ Dalip Singh vs [ENTITY] of Bihar AIR 2005(SC) 203, has held that where accused committed rape on the prosecutrix by promise to marry but marriage did not materialise due to family pressure or some other reasons, accused could not be held guilty for offence of rape. It was also held that where prosecutrix has stated that accused raped her forcibly without her consent and prosecutrix had intercourse with the accused several times thereafter. In that context, it was held that prosecutrix was a consenting party inasmuch as if the rape was committed by the accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. In the present case also, it is stated by the prosecutrix that during the period of alleged commission of rape, she was insisted by the accused to marry him but she did not concede to his request. If rape was committed against the wishes of the complainant for the first time under inducement of marriage, then she was not expected to accompany the accused and submit herself to the accused for sexual intercourse on subsequent occasions. In another judgment Uday vs [ENTITY] of Karnataka AIR 2003 SC 1639, it was held that where prosecutrix gave consent to sexual intercourse with a person with whom she was deeply in love on a promise that he would marry her on a later date, such consent can not be said to be given under misconception of fact. Thus, from the testimony of the complainant (PW8), it is clear that no overt act of rape has been imputed or proved against accused as she was having love and affection towards accused which fact is supported by the letter Ex.PW8/DF admittedly written by the complainant to the accused. 29 The FSL report also do not support the case of prosecution. As per FSL report Ex.PW10/X, the blood was detected on the blood sample of the complainant (PW8) and accused, but as per biological report, samples were putrified hence no opinion regarding blood samples of complainant (PW8) could be given. Even the underwear of the complainant (PW8) and of the accused were also examined but as per biological report the result were inconclusive with regard to semen on the same.
30 The medical evidence of the complainant in the form of her MLC Ex.PW5/A shows that there were no fresh injury marks on the body of the complainant. There was no sign of struggle or defence by the complainant. Dr. [ENTITY] (PW5) who medically examined the complainant has categorically stated that all the findings of complainant were normal, therefore, she could not comment whether she was raped. Even medical examination report of complainant shows that she was not having any physical indicator of sexual assault. There were no injuries on her person. The hymen was old ruptured.
31 From the above testimony of prosecutrix, I am of the considered opinion that it contains glaring contradictions. Even the testimony of complainant has not been corroborated by any other evidence. The medical evidence also does not corroborate the case of the prosecution that any forcible rape was committed upon the complainant as there were no fresh injury marks on her private parts, the rupture of hymen was old and the Doctor had not given any definite upon with regard to commission of forcible rape. After a careful reading of testimony of prosecutrix, I am of the firm view that it does not inspire confidence as it is full of discrepancies. There are several gaps in the testimony of the complainant coupled with other circumstances as pointed out above, makes it highly probable that any such incident of rape was committed upon the complainant against her will and without her consent. [Reliance: Radhu vs. [ENTITY] of Madhya Pradesh 2007 (4) RCR(Crl) 158(SC)].
Delay in lodging FIR 32 It has been argued by Ld. Amicus Curiae that there is delay in lodging FIR as the first incident of alleged rape was committed 1 months prior to 16.09.2009 and nonexplanation has been given by the complainant in this regard, therefore, delay is fatal to the case of the prosecution. On the other hand, Ld. Addl. PP for the [ENTITY] has argued that complainant was under fear and threat for the entire period and that was the reason for belated lodging of FIR. 33 In the present case, it is alleged by the complainant that firstly she was raped by the accused about 1 months prior to making of statement dated 16.09.2009 Ex.PW8/A. The explanation given by the prosecutrix is that she was under state of fear and threat during that entire period as the accused used to threat her on telephone that he would make the factum of rape public and defame the complainant in the society.
34 I have already observed above that there was considerable time with the complainant(PW8) to inform the factum of alleged commission of forcible rape upon her to her sisters or near relatives after the first incident of alleged rape. But she kept mum for the reasons best known to her and being a major girl, it was not expected of her not to disclose the forcible rape, if any, to her near and dear ones on the first available opportunity. It has also been observed above that there was no threat or pressure on the prosecutrix from the accused after the first incident of alleged forcible rape which prevented the prosecutrix to disclose the factum of rape. In this scenario, I am of the considered opinion that the complainant informed the police about commission of rape after a considerable delay and that too at highly belated stage at her own sweet will. The sequence of events as mentioned above leads to the inference that there is considerable delay in making complaint by the prosecutrix to the police which led to lodging of FIR. The explanation given by the prosecutrix does not appeal to the reasons as there was no threat or pressure of any kind from the side of accused. Therefore, I am of the considered opinion that delay in making the complaint to the police which led to lodging of FIR is fatal to the case of the prosecution. [Reliance: [ENTITY] of Himachal Pradesh vs. Gian Chand AIR 2001 SC 2075].
Offence u/[SECTION] [ACT] 35 The accused has also been charged for inducing the complainant with intent that she might be forced to marry him or knowing it to be likely that complainant might be forced or seduced to have illicit intercourse with him. However, in earlier part of the judgment, I have already held that complainant(PW8) was willingly accompanying the accused and was a consenting party to have sexual intercourse with the accused. Therefore, no case under [SECTION] [ACT] stands proved against the accused.
Conclusion 36 In view of the foregoing discussion and facts and circumstances of the case, I am of the considered opinion that the prosecution has failed to make out any case of commission of rape by the accused upon the complainant (PW8) under inducement of marriage. Therefore, accused [ENTITY] cannot be held guilty for the commission of rape upon the complainant (PW8) and abducting her with intent to have illicit sexual intercourse with her. Consequently, accused [ENTITY] is hereby acquitted of the offences punishable under [SECTION] [ACT]. 37 Accused, in judicial custody, be released forthwith subject to compliance of [SECTION] of [ACT], if not required in any other case.
File be consigned to the record room.
Announced in the open Court ( [ENTITY] ) Dated: 13.04.2011 District Judge (East) cum Addl. Sessions Judge Karkardooma Courts, Delhi