IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 154/13.
Unique Case ID No. 02405R0137162013.
State Vs. Rohit Patel,
S/o Sh. Rajender Prashad,
R/o Gali no.29, M.No.24,
Rajapuri, Uttam Nagar,
New Delhi.
Date of Institution : 15.5.2013.
FIR No.58 dated 04.3.2013.
U/s.323/365/376/506 IPC.
P.S. Najafgarh.
Date of reserving judgment/Order : 04.1.2014.
Date of pronouncement : 08.1.2014.
JUDGMENT
1. The accused abovenamed has been facing trial for having committed the offences punishable u/s.323/365/376/506 IPC.
2. As per the case of the prosecution, the prosecutrix namely ‘P’ (real name withheld in order to conceal her identity) appeared in the police station on 04.3.2013 and stated that the accused committed rape upon her about four or five months ago. Her statement was recorded by SI Seema, which is reproduced herein-below :
“My marriage has taken place 11 years ago and I
alongwith my husband as well as daughter aged ten
years have been residing at House No.9A, Budh Bazar
Road, Ramaji Enclave, Najafgarh, Delhi, on rent. My
husband is in private job. I am doing the job of
scavenger in Springfield School, Ramaji Enclave,
Najafgarh. After my marriage, we had been residing on
rent in House No.83, Gali No.5, Som Bazar Road,
Rajapuri, and accused also resided as a tenant in the
same house. Accused has been using mobile phone
no.9555184583. I was on speaking terms with the
accused. Thereafter, we shifted to the aforesaid house
in Nangli Dairy. About 4 – 5 months ago, accused
made a call to me saying that he is waiting for me at
Nangli Dairy and called me to Nangli Dairy Bus Stand
on the pretext of providing me a good job. He offered
water to me and then took me to a room in Rajapuri
where he gagged my mouth and threatened me that
he would kill me in case I raised alarm. I became
terrified and thereafter the accused took off all my
clothes and committed rape upon me, as a result of
which I became unconscious. After I regained
consciousness, accused told me in a threatening tune
that in case I disclosed the incident to anybody, he
would defame me and kill my daughter. He took me
upto Nangli Dairy Bus Stand in an RTV and dropped
me there. Out of fear, I did not disclose the incident to
anybody till today. Today at about 11 a.m. when I was
returning home from my school, accused met me in a
gali leading to my house and asked me to accompany
him. When I refused to oblige him, he started beating
me and ran away after I raised alarm.”
3. The FIR was registered on the basis of the aforesaid statement of the prosecutrix and the investigation was commenced by SI Seema. Prosecutrix was got medically examined in RTRM Hospital, Jaffarpur Kalan and the exhibits handed over by the doctor were seized. Search was made for the accused but he could not be found. Meanwhile, the prosecutrix was produced before the concerned Ld. Magistrate, who recorded her statement u/s.164 Cr.PC. The prosecutrix came to the police station on 07.3.2013 and told the IO that she happens to see the accused sometimes at Rajapuri Red Light and he can be found there. Accordingly, IO alongwith the prosecutrix reached near the aforesaid traffic light and the accused was arrested at the instance of the prosecutrix. He was got medically examined in RTRM Hospital and the exhibits handed over by the doctor were seized by the IO. All the exhibits of the case were sent to FSL for forensic examination.
4. After completion of the investigation, Charge Sheet was prepared by the Investigating Officer and laid before the concerned Ld. Magistrate.
5. Upon committal of the case to the court of Sessions, Charges u/s.376 IPC, u/s.506 IPC and u/s.323 IPC were framed against the accused on 06.6.2013. Since the accused pleaded not guilty to the aforesaid charges, prosecution was called upon to lead its evidence. The prosecution has examined 12 witnesses to bring home the guilt of the accused. The accused was examined u/s.313 Cr.PC on 05.12.2013 wherein he denied having raped the prosecutrix. According to him, the prosecutrix was involved in physical relations with him voluntarily and on her own free will as her husband used to remain out in connection with his job requirements. He stated that the prosecutrix has lodged a false complaint against him on the pressure of her husband as he had come to know about their sexual relations. The accused, however, did not lead any evidence in defence.
6. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
7. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitated corroboration of her statement. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which may lend assurance to her testimony where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material on record, the prosecutrix making deliberate improvements on material points with a view to rule out consent on her part, no reliance can be placed upon her evidence. It may also be noted that even in cases involving offence or rape, it is the burden upon the prosecution to prove the guilt of the accused beyond reasonable doubt and it is not for the accused to show why the witnesses have deposed falsely against him.
8. In the instant case, the police machinery was set into motion pursuant to the statement of the prosecutrix, which was recorded by SI Seema (PW10) in the police station on 04.3.2013. The said statement of the prosecutrix has been already reproduced herein-above. The statement u/s.164 Cr.PC of the prosecutrix has been recorded on 05.3.2013 by PW6 and the same is Ex.PW3/B. In this statement, referring to the incident of rape, the prosecutrix states that the accused suddenly called her on phone one day. She went there and the accused offered her water and some ‘Samosas’. She ate ‘Samosas’ and also drank water whereafter she felt giddy and did not know what accused was saying to her. She went alongwith the accused but did not know the address. When she rose up, she found that the water had fallen on her face and her clothes were wet. Accused was sprinkling water upon her and exhorting her to stand up. She rose up and realised that something has been done to her Accused asked her to set right her clothes and washed her face as well as hands. She was feeling tired and felt that certainly something has happened with her. She was not in a position to walk. Accused dropped her at Nangli Dairy Bus Stand and asked her to go home. She slowly reached her home but did not disclose the incident to her husband. This had happened about 4 or 5 months before. Prosecutrix also stated to the Ld. Magistrate that her husband had now come to know about the incident as the accused had told him so on phone. When her husband confronted her with the same, she told him that she has been raped.
9. Now it would be useful to refer to the testimony of the prosecutrix recorded in this court. She has been examined by the prosecution as PW3. She stated that after they shifted to Nangli Dairy i.e. their present address, the accused used to follow her sometimes and call her sometimes on phone saying that she should meet him. She refused to meet him but he threatened her that he can kill her husband and kidnap her daughter. She further deposed that about one and a half years ago, one day accused made a call on her mobile phone asking her to meet at Dwarka More saying that he would apologize for his acts. Accordingly, she went to meet him at Dwarka More. Accused offered her some ‘Samosas’ and water which she consumed. Thereafter, she became unconscious and did not know what happened. When she regained consciousness, she found herself getting down from the bus at Nangli Dairy Bus Stand. Accused was also with her and told her to go home and not to narrate the incident to anybody. Accused did not get down from the bus but told her that he has raped her during her unconsciousness and would inform her husband about the same. She went home and did not tell her husband or anybody else about the incident for a long time. However, the accused used to call her and asked her to meet him whenever he wished but she did not go to meet him. One day when she was returning home from her work, her husband asked her whether she has any affair with anybody and she replied in negative. She realised that the accused has apprised her husband about his acts. It is at that time that she revealed the incident to her husband. Then she alongwith her husband went to the police station where her statement Ex.PW3/A was recorded. From the police station, she was taken to hospital for medical examination. She also proved her statement recorded u/s.164 Cr.PC as Ex.PW3/B. She further deposed that after about two days, accused was arrested in her presence from Dwarka vide arrest memo Ex.PW3/C. She was declared hostile by Ld. APP and in the cross examination conducted by the Ld. APP, she reiterated that she had become unconscious soon after consuming ‘Samosas’ and did not know whether or not accused had raped her during her unconsciousness. She deposed that she has said that accused raped her only because accused himself told her while getting down from the bus that he has committed rape upon her.
10. In the cross examination conducted on behalf of the accused, she admitted that her husband had threatened to leave her if she did not report the matter to police. She also admitted that accused used to call her on mobile phone no.7503065416. She also admitted that the accused had taken her photographs near Sector-4, DDA Park, Dwarka, and can identify the photographs if shown to her. She admitted that the accused had taken her to a restaurant but she did not remember the name of the restaurant and stated voluntarily that she had gone there under the threat of the accused. She admitted that the accused had been calling her to various places and she had been going there for the last three years. She could not tell the name of the shop from where accused had bought ‘Samosas’ as he did not purchase the same in her presence. She deposed that accused had also consumed ‘Samosas’ and thereafter took her in an RTV. She did not visit any doctor on that day. According to her, accused had given ‘Samosas’ to her at about 1.30 p.m.
11.It is crystal clear that the aforesaid testimony of the prosecutrix is totally inconsistent with her statements recorded during the course of investigation. She has described the incident of rape differently at every step and hence she does not appear to be a truthful or reliable witness. In the FIR, she has stated that when she met the accused at Nangli Dairy Bus Stand, he offered her water to drink and took her to a room where he threatened her, took off all her clothes and raped her. As a consequence of rape, she became unconscious. Thus as per her first statement to the police, she was conscious when the accused raped her. In her statement u/s.164 Cr.PC she states that when she met the accused at Nangli Dairy Bus Stand, accused offered her water and ‘Samosa’ which she consumed and felt giddy. She didn’t know what accused was telling her but simply followed her. When she rose up, she found her clothes wet and accused sprinkling water over her and exhorting her to get up. She was feeling tired and not able to walk an felt that, something had been done to her by the accused. The accused then dropped her at Nangli Dairy Bus Stand. This statement of the prosecutrix indicates that she was totally unconscious and didn’t know what accused had done to her in the room where he had taken her and that she regained consciousness in the room itself.
12. In her deposition before this court, the prosecutrix has gone further in stating that she regained consciousness while getting down from the Bus at Nangli Dairy Bus Stand and the accused told her that he has raped her during her unconsciousness. She has not deposed that she was conscious when the accused raped her or that after regaining consciousness, she realised that accused had raped her as mentioned by her in her FIR and statement u/s.164 Cr.PC.
13. Manifestly, all the aforenoted three statements of the prosecutrix are totally inconsistent and contradictory to each other. Though in the FIR, she stated that the accused raped her after taking off all her clothes yet in the statement u/s.164 Cr.PC and in her testimony before this court she stated that she had become unconscious and didn’t know what happened thereafter. There is no clearcut statement of the prosecutrix in her deposition before this court that the accused raped her. She deposed in her cross examination that she has said that accused raped her only because accused himself told her so.
14. It becomes apparent from the aforenoted statements of the prosecutrix that she is only telling a lie and in fact, no such incident of intoxication and rape has taken place. Such huge and major variations/inconsistencies do not appear in the statements of a truthful witness. The prosecutrix herein is not a trustworthy witness and her testimony cannot be relied upon. She has fabricated a false story at each occasion when called upon to narrate the incident.
15. Moreover, her deposition before this court is improbable too. It is not possible to carry an unconscious lady in an RTV vehicle which is public mode of transport without being noticed by other passengers. It is also difficult to believe that the prosecutrix would regain consciousness exactly at the time when she got down from the RTV.
16. It may also be noted that the prosecutrix has admitted in her cross examination that she had been going alongwith the accused whenever and wherever he called her, for the last three years. It is also evident from her testimony that on the day of incident, she had gone to meet him on a mere phone call from him, without any threat or pressure from him. This suggests that prosecutrix was in some kind of liaison or affair with the accused and the physical relations between the two were consensual. She has also admitted in her cross examination that she lodged the complaint on account of pressure of her husband as he threatened to leave her if she did not do so. This implies she herself did not intend to lodge the complaint and she lodged a false complaint only under the threat of her husband and to save herself from humiliation of being exposed for her extra-martial affair with the accused and for the fear of being left alone by her husband.
17. Overall assessment of the testimony of the prosecutrix indicates that she was having voluntary liaison with the accused and her husband pressurized her to lodge a complaint of rape, when he came to know about their affair. The evidence on record shows that prosecutrix was in touch with the accused on phone even after the lodging of complaint. As per the testimony of IO (PW10), the prosecutrix made a call to the accused on 07.3.2013 asking him to meet her at traffic light Rajapuri. The police team was already present at that spot. When accused reached there after some time, he was arrested. This demonstrates the clear conscience of the accused. Had he guilty conscience, he would not have responded to the call of prosecutrix and would not have come to aforesaid spot on her asking.
18. The net result of the discussion is that it is a totally false case slapped upon the accused. He has not committed any offence at all. It is an irony that he had to face arrest, imprisonment and trial on the false charges of rape.
19. The accused is hereby acquitted of all the charges.
20. I find it expedient to proceed against the prosecutrix u/s.344 Cr.PC for giving false evidence before this court, which is being done by way of a separate order.
21. I may further note that there is a dire need for provision to be made in the Code of Criminal Procedure to enable the court to direct either State or the prosecutrix or to compensate the persons acquitted of the false rape charges. In cases, where the court comes to conclusion that the accused had been implicated on totally false and baseless charges, the accused, in fact, is the victim and deserves to be compensated for the mental harassment, humiliation and physical torture caused to him in facing arrest, imprisonment and the ordeal of criminal trial. Rape is the most hated crime in the society. Persons accused of and arrested on the charges of rape lose every bit of honour, dignity and respect in the society and they are ostracized from the community. Nobody takes note of their acquittal, after the charges levelled against them turn to be false and fabricated. Such unfortunate persons certainly need to be compensated and rehabilitated.
22. At present, I do not find any provision in the Code of Criminal Procedure or any other law in force for the time being, empowering the court to grant compensation to the accused acquitted of the false criminal charges. Hence I consider that State should either amend Section 357 of the Code of Criminal Procedure or add a fresh section in the Code empowering the courts to grant compensation to the accused in such like cases.
23. A copy of this judgment be sent to the Secretary, Department of Law, Govt. of India and the Chairman, Law Commission of India for their perusal and consideration. Announced in open
.
(VIRENDER BHAT)
Court on 08.1.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
