IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI. [CASE NUMBER]. Unique Case ID No.02405R0085532013. [ENTITY] Vs. [ENTITY], S/o Sh. Naresh Sharma, R/o Subodh Nagar, Behind Shiv Mandir, P.S. Dehaat Post Amroha, Distt. J.P. Nagar, U.P. Date of Institution : 26.3.2013. FIR No.38 dated 14.2.2013. U/s. [SECTION]/506 [ACT]. P.S. Baba Haridas Nagar. Date of reserving judgment/Order : 31.3.2014. Date of pronouncement : 07.4.2014. JUDGMENT
1. The prosecution had chargesheeted the accused for having committed the offences u/[SECTION] [ACT].
2. It is the case of the prosecution that the prosecutrix namely 'N' (real name withheld in order to conceal her identity) had appeared in the police station on 13.2.2013 and made a complaint that she has been raped by accused [ENTITY]. Her statement was recorded by ASI [ENTITY], relevant part of which is reproduced herein :
" I am doing B.A. Course in Bhagini Nivedita College, Kair, Najafgarh. I got acquainted with [ENTITY] about nine months ago in McDonald Restaurant, Rajouri Garden, and thereafter I chatted with him on Face Book. Just after five months thereof, he started threatening and beating me. About two weeks ago, he took me forcibly from outside my college to his room in village Mitraon and raped me. He had done this earlier also on 7 or 8 occasions in different rooms. Whenever I showed resistance, he used to threaten that he would kill me and my family members. He had also prepared my video and threatened that he would upload the same on internet. He used to tell me to do whatever he asked me to do or otherwise, he would kill my family members. Apart from harassing me, he used to threaten my friends also on phone. He sent me obscene messages from mobile nos.8802105355 and 9540434898. "
3. After recording aforesaid statement of the prosecutrix, IO ASI [ENTITY] took her to RTRM Hospital and got her medically examined vide [CASE NUMBER]. The exhibits given by the doctor were seized. On the basis of the statement of the prosecutrix and the result of MLC, ASI [ENTITY] prepared rukka and got the FIR registered u/[SECTION] [ACT]. She produced prosecutrix before the concerned Ld. M.M. on 14.2.2013, who recorded her statement u/[SECTION] [ACT]. The prosecutrix showed the spot of incident i.e. room in village Mitraon to the IO on 15.4.2012. The mattress spread on the cot in the room was seized by the IO. She also noticed certain pieces of papers on the slab in the room. She joined the pieces of papers in the form of a page and it was revealed that there were certain signatures and thumb impression on these paper pieces. She seized the paper pieces. After intense search, the accused was arrested on 20.2.2013 pursuant to a secret information from ISBT Anand Vihar. He was got medically examined in RTRM Hospital vide [CASE NUMBER] and the exhibits given by the doctor were seized. The accused was taken on one day police remand during which he made disclosure statement, admitting his guilt and pointed out the spot of incident. At his instance, his motorcycle of black colour bearing registration no.UP-23H-7080 was also seized by the IO from in front of his house. Thereafter all the exhibits of the case were sent to FSL Rohini for forensic examination. Both the prosecutrix as well as accused were produced before the concerned M.M. on 02.3.2013 and their specimen thumb impression and signature were taken which also were sent to FSL for comparison with signature and handwriting found on the aforementioned paper pieces. Call detail records of the mobile phone used by the prosecutrix and accused were obtained.
4. After completion of the investigation, Charge Sheet was laid before the concerned M.M., who then committed the case to the court of Sessions.
5. Upon committal of the case to the court of Sessions, Charge u/[SECTION] [ACT] and u/[SECTION] [ACT] was framed against the accused on 30.5.2013. The accused abjured his guilt and accordingly trial was held. At trial, the prosecution examined 16 witnesses. Ld. APP also tendered in evidence FSL results Ex.PA and Ex.PB. The accused was examined u/[SECTION] [ACT] on 05.3.2014, wherein he denied the prosecution case. He further stated that in fact, prosecutrix had taken him to the fields of village Mitraon and she had requested [ENTITY], owner of the fields, to permit them to take some rest in the fields and to consume liquor. According to him, he was having love affair with the prosecutrix since February, 2012 and they used to meet each other regularly. He asked the prosecutrix in the month of May, 2012 to marry him but she refused saying that she wants to concentrate upon her career. He had given various gifts like mobile phone, clothes etc. to the prosecutrix and had also paid a sum of Rs.10,000/- as loan to her friend [ENTITY]. He further stated that one day in the month of January, 2013, the prosecutrix asked him to reach her college for the birthday party of her friend [ENTITY]. Prosecutrix and her friend came out of the college to meet him and all of them had already consumed liquor. Prosecutrix was having a liquor bottle in her bag and told him that he also would have to consume liquor or otherwise, [ENTITY] would be annoyed. Thereafter, prosecutrix asked him to start motorcycle and at her instance they reached fields of [ENTITY] where they both consumed liquor. He became intoxicated. They did not have sexual intercourse on that day. He, however, admitted that they had physical relations with each other earlier and it was with the will and consent of the prosecutrix. He further stated that he got married in June, 2012, which was within the knowledge of the prosecutrix and they had intercourse with each other even after his marriage. The prosecutrix used to ask him to divorce his wife and to marry her, to which he was not agreeable and for that reason, she lodged a false complaint against him. Prosecutrix had threatened him that she would lodge a false complaint against him when he refused to seek divorce from his wife and to marry her.
6. I have heard Ld. APP for [ENTITY], Ld. Counsel for the accused and have perused the entire material on record.
7. In cases involving the offence of rape, the testimony of prosecutrix is the most vital and material piece of evidence. Her statement if found to be worthy of credence and reliable, requires no corroboration and court may convict the accused on her sole testimony. A prosecutrix of sex offence cannot be put on par with an accomplice. She is in fact a victim of crime. The [ACT] nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtable and competent witness under [SECTION] and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. In case involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. While evaluating evidence, the court must remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour. At the same time, it is also settled position that if for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice. If the court of facts finds it difficult to accept the version of the prosecutrix at its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. (See- [ENTITY] of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, [ENTITY] of U.P. vs. Pappu @ Yunus and anr., AIR 2005 SC 1248, [ENTITY] of Punjab vs. [ENTITY] and Ors., AIR 1966 SC 1393).
8. It would also be useful to keep in mind the following observations of the Supreme Court made in Raju vs. [ENTITY] of M.P., (2008) 5 SCC 133 :
"12. Reference has been made in [ENTITY]'s case to the amendments in 1983 to [SECTION] and [SECTION] of the [ACT] making the penal provisions relating to rape more stringent, and also to [SECTION] of the [ACT] with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that [SECTION] and [SECTION] too were inserted in [ACT] by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under [SECTION] is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
9. It can be aptly said that in cases involving sexual assault upon women, the evidence of the victim should be of sterling quality as the fate of the case depends upon the quality and face value of her testimony. Who can be termed as a 'Sterling Witness' has been dealt with in the case of Rai Sandeep @ Deepu vs. [ENTITY] of NCT of Delhi, 2012 (131) DRJ 3 (SC) wherein the quality of the testimony of the prosecutrix, which can be made as a basis to convict the Appellant, was considered in detail and it was so held:
"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime, should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
10. It also needs mention here that the Supreme Court in Udai Vs. [ENTITY] of Karnataka AIR 2003 SC 1369, has held that even in cases of rape, the onus is always on the prosecution to prove affirmatively all the ingredients of the offence which it seeks to establish and such onus never shifts. It is not the duty of the defence to explain as to why and how the victim and the other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and it cannot take the support from the weakness of the case of defence. However, the great suspicion against the accused and however strong the moral belief and the conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legally admissible evidence and the material on record,the conviction cannot be ordered. There is initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
11. Keeping in view the aforesaid golden principles laid by the Supreme Court in mind, let me proceed to scrutinize the evidence led by the prosecution in this case.
12. The most vital and material witness for the prosecution in the instant case is the prosecutrix herself. She has been examined as PW1.
13. She deposed that she met the accused for the first time in April or May, 2012 in McDonald Restaurant, Rajouri Garden, when she was introduced to him by her friend [ENTITY]. Thereafter, they started chatting with each other on Face Book and used to meet each other about once in a month. This continued for 5 or 6 months. In the month of July or August, 2012, the accused had taken her forcibly to the room of his friend/cousin and committed sexual intercourse with her against her consent and also prepared her nude video. Thereafter, the accused used to ask her to subject to his sexual lust as and when he desired or otherwise, he used to threaten that he would upload her nude video on the internet. Whenever the accused met her at Bus Stop or in the market, he used to create a scene by abusing her and beating her. On account of threats given to her by the accused, she had no option but to satisfy his sexual lust. The accused committed forcible sexual intercourse with her on several occasions in the rooms of his various friends and he used to threaten her that in case, she did not oblige him he would kill her as well as her parents. He also threatened her that in case she did not accede to his demand of sexual intercourse, he would throw acid upon her as well as her sister. This continued till December, 2012 when she came to know that the accused is already married.
Thereafter, she stopped meeting him. However, accused used to meet her at college as well as at Bus Stop.
14. She further deposed that one day in the month of February, 2013, when she was present in her college, accused called her from outside the college and threatened her that if she did not come out immediately, he would kill her with a gun which he was carrying. He also made calls to her friends on their mobile phone and abused them also. When she came out of the college, the accused took her forcibly to a room in fields in village Mitraon where he forced her to consume liquor and thereafter committed sexual intercourse with her against her wish. He also took her signature as well as thumb impression on two blank papers saying that he would use these in his defence if she initiated any criminal action against him. She further deposed that after about 2 or 3 days of the aforesaid incident i.e. on 13.2.2013, she narrated her ordeal to her sister-in-law ([ENTITY]) on phone, who was residing at Chennai alongwith her husband. The maternal aunt ([ENTITY]) of the accused called her [ENTITY] at Chennai threatening her that if she initiated any action against the accused, she would be kidnapped from Chennai.
15. Prosecutrix further deposed that her brother suggested her to make a call at telephone no.181 which she did at night and three police officials came to their residence in the morning on 14.2.2013. They recorded her statement and referred her to P.S. Najafgarh as the incident had taken place in the territorial jurisdiction of P.S. Najafgarh. They took her to P.S. Najafgarh but from there, she was asked to go to P.S. Baba Haridas Nagar. The police officials took her to P.S. Baba Haridas Nagar where her statement was recorded which she proved as Ex.PW1/A. From the police station, she was taken to RTRM Hospital where she was medically examined. Doctor took into possession her blue coloured panty and white coloured brasserie. As per the explanation of IO ASI [ENTITY], she reached the court the next day where a Ld. Magistrate recorded her statement which she proved as Ex.PW1/B. Next day, she took the police officials and showed them the room in village Mitraon where she had been raped by the accused. IO prepared site plan of the same which is Ex.PW1/C. The police officials took photographs of the room and recovered several pieces of papers which, when joined, formed two separate pages, which were those on which the accused had taken her signatures and thumb impressions. Accused had also put his signatures on those papers. The mattress on the cot found in the room as well as the aforesaid paper pieces were seized by the IO in her presence. She identified the mattress, her undergarment and the paper pieces during the course of her testimony in the court.
16. In the cross examination, she deposed that [ENTITY], who had introduced her to the accused, is a girl and is her friend. She knew [ENTITY] since the year 2011. She admitted that she used to visit Malls and restaurants alongwith accused. According to her, she had decided after about 2 or 3 months of her first meeting with the accused at McDonald restaurant at Rajouri Garden that now it is time to meet him again. She deposed that by the date her gynaecological examination was conducted by the doctor in this case, she did not know that the name of the accused is [ENTITY]. She came to know for the first time in the court that his name is [ENTITY]. She further deposed that the accused had taken her to the rooms of his cousins [ENTITY] and [ENTITY]. According to her, the room of [ENTITY] is at Uttam Nagar but she could not tell the exact location. She did not know whether the room of [ENTITY] was situated. She had shown the room of [ENTITY] to the police officials after 2 or 3 days of her medical examination but could not trace the room of [ENTITY]. Police officials did not make any inquiry from [ENTITY] and [ENTITY] in her presence. She further deposed that she had not told her parents, brother, [ENTITY] or any other relative till 13.2.2013 that the accused was having forcible physical relations with her. She deposed that she used to accompany accused on his motorcycle on several occasions to Palam, Rajouri Garden, Connaught Place etc. Both she as well as the accused used to make payment at the restaurants, Dhabas etc. which they visited. She did not raise any alarm when she used to be with the accused on his motorcycle. She stated voluntarily that the accused used to keep her under his threat. She had not told the names of her friends to the police, who used to receive calls from the accused. She admitted that the accused had once deposited a sum of Rs.10,000/- in the bank account of her friend [ENTITY] but denied that he did so on her asking. She stated that [ENTITY] had herself demanded money from the accused.
17. The prosecutrix was also confronted with her FIR statement and statement u/[SECTION] [ACT] wherein she had not stated that the accused had threatened her that if she did not accede to his demand of sexual intercourse, he would throw acid on her as well as her sister; that in the month of February, 2013 the accused had threatened her to come out of the college immediately or otherwise, he would kill her with a gun which he was carrying; that the accused had committed forcible sexual intercourse with her in the rooms of his friends/cousins in July or August, 2012 and also prepared her nude video; that the accused had forced her to consume liquor in the fields of village Mitraon; that the accused had taken her thumb impression on two blank papers saying that he would use these in his defence if she initiated any criminal action against him and that [ENTITY] of the accused had given threatening calls to her [ENTITY] at Chennai that she would be kidnapped from Chennai.
18. In order to appreciate the testimony of the prosecutrix in proper perspective, I find it useful to produce the contents of her statement u/[SECTION] [ACT] Ex.PW1/B herein :
"I have a friend by name [ENTITY], who earlier resided in Palam Colony and now he has shifted from there. I met [ENTITY] at McDonald and we had a very short talk there. Thereafter [ENTITY] sent me a friend request on Face Book and we chatted at Face Book. Thereafter, we met each other one or two times. After two or three months, he started showing his true colours. He abused me, beat me and used force against me. He used to take me to various rooms and committed forcible acts upon me. He raped me. When I refused to oblige him, he used to threaten me that he would make my video and upload the same on the internet and would also kill me as well as my family members.
He used to show me a pistol. Two weeks ago, he came to my college and took me from there on his motorcycle at gun point. He took me to a room in village Mitraon, which is near our college and asked me to consume liquor. He threatened me that if I did not take liquor, he would kill me as well as my family members and would upload my video on the internet. He committed forcible sexual intercourse with me there also after taking off my clothes forcibly. Thereafter, he dropped me back and threatened that in case I disclosed the incident to anybody, he would kill me. He is still giving threatening calls to my brother and [ENTITY], who stay at Chennai and also hurled abuses on my friends."
19. Another material witness for the prosecution is PW4 Sh. [ENTITY], the owner of the room as well as fields where the accused had taken the prosecutrix and committed rape upon her. He did not remember the exact date of the incident and stated that it was in the last week of January, 2013. He deposed that on that day in the afternoon when he was irrigating his fields, he saw two persons riding on a motorcycle going towards tubewell room in his fields. They told him that they have come to see the fields and want to take rest for sometime and also to consume liquor. He permitted them to do so. He was looking towards them from a distance and they started consuming liquor outside the room. When he went nearer, he noticed that one of them was a girl and both were wearing jeans and pant. The girl was also taking liquor. Both of them got intoxicated and when he was about to leave, the girl requested him to remain there for about ten minutes so that her companion regained senses. Therefore, he remained there. Since some passers-by had come by that way, the girl took her companion inside the room for sometime. After sometime, when the boy regained senses, he started the motorcycle but the motorcycle fell on the ground as he was not able to control it. He helped that boy to lift up the motorcycle and thereafter, both of them left on the motorcycle. He further deposed after 15 to 20 days of the aforesaid incident, police officials came to his house and he showed them the aforesaid tubewell room. He also deposed that on the day when the boy and girl had come to his room, the girl had taken out some papers from the pocket of the boy, who had got drunk and had torn the same into pieces. The police officials lifted those pieces of paper and also took into possession the mattress, which was on the folding bed lying in the room. He could not identify those papers pieces when shown to him during his testimony but identified the mattress Ex.P1. He identified the accused to be the boy, who alongwith the girl had come to his tubewell room.
20. PW4 was declared hostile by Ld. APP on certain points and in the cross examination conducted by Ld. APP, he was confronted with the statement u/[SECTION] [ACT] wherein he had not mentioned that the accused and the girl had taken liquor near his tubewell room and both of them had got intoxicated and the girl had requested him to remain there for 10 minutes more and that when the accused after regaining senses started the motorcycle fell on the ground as he was not able to control it and he helped them to lift up the motorcycle.
21. The testimony of the prosecutrix when read alongwith her statements recorded during the course of investigation and in conjunction with the testimony of PW-4, demonstrates that she is not a trustworthy. Her testimony is not convincing and does not inspire any confidence. From her FIR statement also it appears that she is not serious about the allegations which she is levelling against the accused. She vaguely states in that statement that the accused had raped her on seven or eight occasions in different rooms prior to the final incident of rape which had taken place about two weeks before the lodging of FIR. She has not stated when, where and in what circumstances did the accused commit forcible sexual intercourse with her for the first time and how was he able to repeat the same thereafter also. It is in her statement u/[SECTION] [ACT] Ex. PW1/B that she has tried to explain these acts of forcible sexual by saying that the accused used to take her to various rooms where he raped her and when she refused to oblige him, he used to threaten her that he would make her video and upload the same on the internet and would also kill her as well as her family members. However, in this statement also she has left it unexplained as to when, where and in what circumstances did the accused commit rape upon her for the first time.
22. In her deposition before this Court as PW-1, she has stated that in the month of July or August, 2012 the accused has forcibly taken her to the room of his friend/cousin and committed forcible sexual intercourse with her against her consent and also made her nude video clip. She further deposed that thereafter the accused used to compel her to subject to his sexual lust as and when he desired or otherwise he would upload her nude video on the internet and hence she had no option but to oblige the accused. I find this too a very vague statement. It is not clear from her testimony where had the accused met her on the day when he raped her for the first time and what kind of force did he used to compel her to accompany him to the room of his friend/cousin. There is a marked contradiction in her aforesaid portion of testimony as compared to her statements recorded during the course of investigation. In the FIR she has not stated that the accused had made her nude video clip and used to blackmail her by threatening that he would upload the same on the internet in case she did not oblige him. However, in statement u/[SECTION] [ACT] Ex. PW1/B she states that accused threatened her that he would make her video clip and upload the same on the internet whereas in her deposition before the Court she has stated that the accused had made her video clip on the basis of which he used to blackmail her. Apart from the same, the prosecutrix nowhere states that she had seen her nude video clip in the mobile phone or camera of the accused. It is also not clear from her testimony whether accused had prepared her nude video by mobile phone or by a camera and if so, at what place.
23. In the cross examination the prosecutrix has, for the first time come up with the names of the cousins of the accused as [ENTITY] and [ENTITY] saying that he had taken her to the rooms of these two cousins and had raped her there. There is no explanation from her side as to why did not she disclose the names of these two cousins of the accused to the police officials during the course of investigation. Though she deposes that she had shown the room of [ENTITY] to the police officials but the testimony of IO does not corroborate her in this regard.
24. It is very strange that the prosecutrix has referred to the accused by the name [ENTITY] in her statement u/[SECTION] [ACT] Ex. PW1/B whereas in her testimony before this Court she has deposed that she was introduced to the accused by her friend [ENTITY] in April or May, 2012 in Mcdonalds Restaurant in Rajouri Garden. In cross examination, she has further explained the said fact by saying that [ENTITY] is a girl and was her friend. Therefore, if we go by the testimony of the prosecutrix, [ENTITY] and the accused are two different persons but if we believe her statement u/[SECTION] [ACT], [ENTITY] is the accused himself. To complicate the matter further, the prosecutrix has deposed in the cross examination that she didn't know that the name of the accused is [ENTITY] and she became aware about his name for the first time during the hearing of this case in the Court. It is very difficult to accept that the prosecutrix did not know the name of the person with whom she had fallen in love and used to meet her regularly. At least her friend [ENTITY], who had introduced her to the accused for the first time, would have definitely told her the name of the accused at the time of introduction. These kind of confusing statements coming from the prosecutrix only demonstrates that she is telling lie at every step and has more to hide from this Court than she has revealed before this Court.
25. The prosecutrix has admitted in her cross examination that she used to accompany the accused on his motorcycle to various places in Delhi, Malls and restaurants. This too makes the allegations of rape highly improbable.
26. Now, according to the prosecutrix, the accused raped her for the last time in the month of February, 2013 in a room in the fields of PW4 [ENTITY]. She has deposed that the accused took her forcibly on that day from her college at gun point to the aforesaid room, forced her to consume liquor and then committed rape upon her. However, PW4 has testified absolutely contrary to her deposition. The testimony of the PW4 shows that prosecutrix had voluntary accompanied the accused to the fields and she did not seem to be under any threat or pressure. PW4 was there right from the time accused alongwith prosecutrix arrived there upto the time they left. He has described in detail everything that took place between the two in the fields. His testimony does not indicate that the accused and prosecutrix had engaged in sexual intercourse in the room, not to speak of forcible sexual intercourse. He was not declared hostile by the prosecution on this point and no suggestion has been put to him in this regard in the cross examination by Ld. APP. Infact the deposition of PW4 corroborate the version of the accused in his statement u/[SECTION] [ACT] that both he as well as the prosecutrix consumed liquor in the fields of PW4 and the accused became intoxicated but no sexual intercourse took place between the two there.
27. There is nothing in the testimony of the prosecutrix as to why did not she make a call at Tel. no. 100 on the same day or why didn't she apprise her parents or brother about the incident of rape on the same day. It is not her case that the accused had threatened her not to disclose the incident to anybody. True it is that, as per her deposition, the accused had taken her signature and thumb impression on a blank paper but as per her own saying, the accused intended to use the paper in his defence in a criminal action. The accused had not issued any threats to her. The prosecution had even torn that paper into pieces.
28. In this scenario, the delay of three days caused by the prosecutrix in narrating the incident to her sister in law and in reporting the matter to the police assumes importance. The delay has not been satisfactorily explained and hence casts a cloud of doubt upon the prosecution case.
29. It is stated by the prosecutrix that when she narrated her ordeal on phone to her sister in law (bhabhi) who resided at Channai, the maternal aunt ([ENTITY]) of the accused started making threatening calls to her Bhabi at Chennai that she would be kidnapped if she initiated any action against the accused. I wonder how the accused or his [ENTITY] came to know that the prosecutrix has confided with her [ENTITY] at Chennai about her tale of misery. Hence it seems to be highly unlikely that [ENTITY] of accused made any threatening calls to [ENTITY] of prosecutrix. Where was the occasion for the accused to make threatening calls to the prosecutrix and her family members throughout on 13.02.13, when he was totally unaware that the prosecutrix is going to lodge a complaint against him on that day.
30. The prosecutrix has not mentioned her mobile number on which she had received threatening calls or the mobile number of the accused from which he used to call her. However, it is the case of prosecution that accused was using mobile number 8802105355 and the prosecutrix was using mobile no. 9953056538. The call details of these two mobile numbers have been proved by PW5 and PW6 respectively. Analysis of these call details shows that no calls were exchanged between the two numbers in January/February, 2013. However, it is evident from the call detail records that numerous text messages were exchanged between these two mobile numbers on daily basis. The exchange of such large number of text messages indicates that relations between the accused and prosecutrix were not confined to only forcible sexual intercourse but probably they were in love with each other.
31. Another fact which needs note is that the mattress Ex. P1 which was seized by the IO from the room of PW4, when examined in FSL, was not found to have any blood or semen stains. It has to be recalled that this mattress was seized by the IO at the instance of the prosecutrix, who must have said to IO that she was raped by the accused on the same. Hence the FSL report too does not support the prosecution case.
32. The seizure of paper pieces by the police from the aforesaid room, which were found to have signature and thumb impression of the accused as well as the prosecutrix, do not advance the case of prosecution against the accused at all.
33. It is thus found that the testimony of the prosecutrix is replete with embellishments and prevarications. It is neither convincing nor inspires confidence. No reliance can be placed upon the testimony of prosecutrix. Her deposition does not get corroboration from other evidence on record including testimony of PW4 and FSL Report.
34. Thus the prosecution has failed to prove the charges against the accused beyond doubt. The accused is liable to be acquitted and is hereby acquitted.
Announced in open (VIRENDER BHAT) Court on 07.4.2014. Addl. Sessions Judge (Special Fast Track Court) Dwarka Courts, New Delhi.