IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 48/14
FIR No. 337/12
Police Station S.P. Badli
Under Section 376/506 IPC
ID No. 02404R0-70412013
S/o Sh. Lal Mohar Shah,
R/o N-44/214, Gali No.6,Sanjay Colony, S.P. Badli, Delhi. ……Accused
Date of institution 23.04.2013
Judgment reserved on 09.10.2015
Judgment Pronounced on 30.10.2015
1. Accused is facing trial on allegations that on 13.12.2011 at about 8:30pm, he committed rape upon prosecutrix ‘R’ on knife point and threatened to kill her.
2. FIR was registered consequent to a complaint case filed by the prosecutrix wherein she alleged that on 13.12.2011 at about 8:30 pm when she was was going to attend nature’s call near ganda nala, accused Pradeep suddenly caught hold of her from behind and put a knife on her. He threatened the prosecutrix not to raise an alarm and after that without her consent he committed rape on her. After committing rape, accused threatened her that in case, she disclose the incident to anyone, he would kill her entire family. After the incident, prosecutrix wept whole night and disclosed the incident to her sister in law (bhabhi) when she asked her for about the reason for weeping. On 13.03.2012, prosecutrix made a complaint to police station SP Badli but no action was taken. It is further alleged that accused gave a false allurement of marriage to prosecutrix and falsely executed affidavit at Tis Hazari Courts.
3. On the basis of the FIR against the accused, the accused was arrested and was charge-sheeted in the present case. He was charged for the offence punishable u/s 376/506 IPC to which he pleaded not guilty and claimed trial.
4. In all prosecution has examined 15 witnesses.
5. PW1 Dr Vijay Dhankar proved MLC of the accused as Ex. PW1/A where in, it is opined that there was nothing to suggest that he was incapable of performing intercourse.
6. PW2 HC Ram Singh proved the FIR and his endorsement on the rukka as Ex. PW2/A & B.
7. PW3 SI Ajay Kumar, recorded the statement of the prosecutrix as Ex PW3/A and prepared rukka as Ex PW3/B.
8. PW4 Dr Richa Gupta proved the medical examination of the prosecutrix vide MLC Ex. PW4/A.
9. PW5 HC Devender proved the deposit of the case property in the Malkhana as per entries as Ex. PW5/A & B.
10. PW6 Ct. Shipra collected the exhibits of the prosecutrix after her medical examination which was seized by the IO from her vide seizure memo Ex. PW6/A.
11. PW7 Ct Satinder proved the arrest of the accused and his personal search vide memo Ex. PW7/A & B.
12. PW8 Sh Sandeep Gupta, Ld MM, proved statement of the prosecutrix recorded u/s 164 Cr P C as Ex PW8/A.
13. PW9 is the prosecutrix. She deposed that on 13.12.2011 at about 8.30pm, she went to answer the nature’s call behind a Nala. In the meantime, Pardeep, who was residing near their house, came and held her and put a knife on her neck. Accused threatened that in case, prosecutrix would raise alarm, he would kill her. Prosecutrix became scared. Accused forcibly took prosecutrix behind the bushes and committed rape upon her. He again threatened her that, if prosecutrix disclose this fact to anybody, he would kill her. Prosecutrix started weeping and she went to the house of her bhabhi Urmila. She did not disclose to anyone about this fact including her mausi due to fear. After about three months, accused asked her to accompany him at the same place. Prosecutrix started weeping. Her Bhabhi inquired from the prosecutrix and then she told her about the act of rape committed by accused and about threats given by him. Then Bhabhi of the prosecutrix disclosed the above fact to her mausi. Her Mausi talked to the family members of accused but they did not pay any heed to the same. Then her Mausi called the police. But police did not take any action against accused as accused stated that, he would marry prosecutrix. After some Judgment 5 of 18 SC No: 48/14 State Vs. Pardeep Shah time accused initiated the proceedings for their court marriage, but it did not materialize because accused had shown his age higher than his actual age. Thereafter, Mausi of the prosecutrix made a complaint before the court. Statement of the prosecutrix Ex.PW3/A was recorded by the police. Police got her medically examined. Her statement Ex PW8/A was got recorded before a Judge.
She also deposed that two affidavits Ex.PW9/C & D were executed by accused showing his intention to marry her, but the said affidavits mentioned his wrong date of birth. Prosecutrix also executed one affidavit Ex.PW9/E, showing her intention to marry accused. Her brother Prabhu Shah and Deepak Kumar (brother of Pradeep) executed a deed stating that accused would marry her after two/three months.
14. PW10 is Mausi of the prosecutrix. She deposed that the prosecutrix was residing with her since 2009, as her parents had already expired. In the year 2012, the prosecutrix went to attend the nature’s call and when she came back after sometime, prosecutrix told her that accused had committed rape upon her on knife point. She along with the Judgment 6 of 18 SC No: 48/14 State Vs. Pardeep Shah prosecutrix went to the house of accused to talk to his parents but they did not give any response. Thereafter they informed the matter to the police. Police came there, but it did not take any action. Accused agreed to marry the prosecutrix and a written agreement was also executed by the elder brother of accused namely Deepak Kumar. On 19.04.2012, two affidavits were also executed in the Court with regard to the marriage of accused and the prosecutrix. But subsequently accused refused to marry the prosecutrix. She deposed that at the time of executing the documents the prosecutrix was about 18 years but the age of accused was shown more than that of his actual age.
15. PW11 is elder brother of the prosecutrix. He deposed that after the death of his parents the prosecutrix started living in the house of their Mausi Parvati (PW10). The prosecutrix stated to his bhabhi about the sexual assault upon her by accused. Thereafter, he along with the prosecutrix and PW10 went to the house of accused but the parents of accused could not say anything to him. Then PW10 called the police and after arrival of the police, the elder brother of accused compromised the matter and a written agreement took place that accused will marry the prosecutrix when accused would attain the age of majority. On 19.04.2012 two affidavits were also executed in this regard. But subsequently accused refused to marry the prosecutrix.
16. PW12 is Babhi of the prosecutrix. She deposed that during March, 2012 she found the prosecutrix to be perturbed and she was not taking any interest in household work. When she inquired from the prosecutrix about reason for doing so, the prosecutrix informed her that accused has raped her on knife point. She informed her husband who in- turn informed to their Mausi. Then they all went to the house of the accused for arranging marriage of the prosecutrix with the accused but they did not agree. Thereafter, their Mausi informed the police.
17. PW13 Tilsunder Kumari, produced the school record of the prosecutrix as Ex. PW13/A & B and proved the date of birth of the prosecutrix as per her school record as 10.02.1994.
18. PW14 Ct Sayar,collected the exhibits of the accused after his medical examination which was seized by the IO from her vide seizure memo Ex. PW14/A.
19. PW15 SI Manju deposed that she arrested the accused and got recorded the statement of the prosecutrix u/s 164 Cr.P.C. She also collected the birth record of the prosecutrix and prepared the site plan of the place of occurrence at the instance of the prosecutrix.
20. On conclusion of the prosecution evidence, the statement of accused was recorded U/s 313 Cr.P.C. wherein he stated he is innocent and he has been falsely implicated. However, he preferred not to lead any DE.
21. Learned defence counsel has very vehemently argued the following points :
(a) that there is an unexplained delay in recording of FIR in the matter, which is fatal to the prosecution case ;
(b) that the accused has been falsely implicated in the matter ;
(c) that the medical and forensic evidence does not support the prosecution case.
22. I have given thoughtful consideration to the arguments advanced at bar and perused the entire material on record. My findings in the matter are as under.
23. Delay in recording of FIR: As per the prosecution case, on 13.12.2011 at about 8.30pm, prosecutrix went to answer the nature’s call behind a nala, in the meantime, accused put a knife on her neck and after taking her behind the bushes, he committed rape upon her. He threatened prosecutrix. Prosecutrix started weeping and she went to the house of her bhabhi Urmila. She did not disclose to anyone about this fact including her Mausi due to fear. For the first time, prosecutrix Judgment 10 of 18 SC No: 48/14 State Vs. Pardeep Shah approached the police on 13.03.2012 but no action was taken by the police. Thereafter, accused gave false allurement to the prosecutrix to marry her and since no action was taken by the police the prosecutrix filed complaint case on 08.09.2012, pursuant to the orders in that case FIR was registered.
24. Learned defence counsel has argued that firstly the police could not have refused to register case, particularly when it was with regard to rape of a minor girl and secondly, even if the explanation is accepted for the sake of argument, even then it would not have taken about 9 months to file the complaint case. It is further argued that there is no document on record pertaining to the period from 13.12.2011 till September, 2012 which could show that any attempt was made by the prosecutrix or her family in reporting the matter to the police. Even if the official at the police station had refused to record their complaint, then they could have approached the higher official or could have sent complaint by post or the least they could have made a call at number 100. Nothing of this sort was done by them. The learned defence counsel has Judgment 11 of 18 SC No: 48/14 State Vs. Pardeep Shah relied upon following judgments to emphasize the importance of quick reporting of the matter to the police. I have gone through the said judgments.
25. In case titled as Rajinder Prasad & Anr. vs. State, in Crl.A. 8/2000, decided on 19.05.2014, the Hon’ble High Court of Delhi, has been pleased to hold that:
In criminal trial, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon’ble Supreme Court in Lalita Kumari V/s Govt. of Uttar Pradesh and Ors., MANU/SC/1166/2013 : (2014) 2 SCC1, the object sought to be achieved by registering the earliest information as FIR in interalia twofold: One, that the criminal process is set into two motion and is well documented from the very start ; and Second, that the earliest information received in relation to the commission of a cognizable offense is recorded so that there cannot be any embellishment, later. In case there is delay in lodging the FIR, the court looks for plausible explanation for the delay in lodging the report. The reason is obvious. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished the version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming to the police or Judgment 12 of 18 SC No: 48/14 State Vs. Pardeep Shah before to the court, the court always views the allegation with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
26. In Thulia Kali v. The State of Tamil Nadu, MANU/SC0276/1972: (1972) 3 SCC 393, it was held that the delay in lodging the first information report quite often results embellishment as a result of afterthought. On account of delay the report not only gets bereft of the advantage of the spontaneity, but also danger creeps in, of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation.
27. Per contra, the learned Addl. PP has very vehemently argued that different people /witnesses react differently in differently situations, whereas some become speechless while some other run away from the scene and yet there are some, who may come forwarded with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction. Mere delay in Judgment 13 of 18 SC No: 48/14 State Vs. Pardeep Shah lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
28. I have considered the rival contentions of both the sides on this point. Adverting to the facts of the present case. It is quite strange that the family of prosecutrix did not do any thing tangible from 13.12.2011 till September, 2012 which could show that they were really concerned about her and had even made an attempt to approach the police rather they themselves got prepared the documents to facilitate marriage between the accused and prosecutrix. It is evident from the testimony of the family members of the prosecutrix that the complaint case was filed against the accused only when the marriage between the accused and prosecutrix did not materialize. Therefore, the prosecution has miserably failed to explain the delay in registration of FIR in the matter.
29. Plea of false implication of the accused: learned defence counsel has very vehemently argued that it is case of failed marriage proposal. Relatives of prosecutrix wanted to get marry her to the accused and as such, they also prepared documents to marry them but the accused did not attain majority, marriage between them could not materialize hence accused was falsely implicated in this case.
30. Prosecution witnesses have deposed that the affidavits Ex. PW9/C & D were executed by the accused and the prosecutrix executed an affidavit Ex. PW9/E wherein both of them have mentioned about their intention to marry each other. Obviously, there is no mention about the allegations of rape against the accused in these affidavits. Prosecutrix as well as her family members testified that since the accused had mentioned his age in those affidavits higher than his actual age that is why the marriage between the accused and prosecutrix did not materialize. For the sake of repetition it has still to be kept in mind that in none of the documents prepared by the prosecutrix there is no mention of any rape allegations of rape.
31. On scrutinizing the testimony of prosecutrix it can be seen that she went to attend the nature’s call only at a walking distance of about 5 minutes from her jhuggi. As per her deposition that place is not an isolated place and other jhuggi dwellers used to go there for attending call of nature. Prosecutrix admits that her clothes were not torn when accused forcibly took her behind the bushes nor she received any injury. Prosecutrix admits that she does not raise an alarm at the time of incident.
32. A close scrutiny of aforesaid statement would show that the statement of the prosecutrix do not appeal to the senses, for the simple reason that a able bodied girl of about 18 years of age, could not be physically taken away by accused. Moreover, the prosecutrix did no effort to raise any alarm or to lodge any complaint against the accused rather she choose to remain mum and did not report the incident to anybody.
33. I am conscious and it is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify by the court, after careful scrutiny of her evidence.
34. However, in view of the above discussion, the testimony of the prosecutrix does not inspire confidence and the accused cannot be convicted on the basis of the wavering testimony of the prosecutrix in this case as it does not inspire confidence of this court.
35. Medical and Forensic Evidence : Prosecutrix was medically examined in the present case after about 10 months of the incident and hence, there could be no medical or forensic evidence which could corroborate the allegations against the accused.
36. Conclusion: In totality of the discussions made here in above, the testimony of the prosecutrix and her family members is not found credible to establish the guilt of the accused. Accordingly, the accused is acquitted of the offence punishable u/s 376/506 IPC. His Surety is discharged. Bail bond stands canceled. Accused is directed to furnish a personal bond in sum of Rs 10,000/- with surety in like amount under provisions of Section 437-A Cr.P.C.
File be consigned to record room.
Announced in open Court on Day of 30th October, 2015.