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498A/376 – Acquittal – Contradiction in evidence

IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS
JUDGE (SFTC), DWARKA COURTS, NEW DELHI.

SC No. 440678/16
FIR No. 559/2015
U/s.376/498A/34 IPC &
P.S. Najafgarh

State Vs. 1. Amit Kumar
S/o Sh. Mahabir Prasad

2. Smt. Geeta
W/o Sh. Mahabir Prasad

3. Sh. Mahabir Prasad
S/o Late Sh. Braham Singh

All R/o RZ­77, Nathu Ram Park,Najafgarh, New Delhi.

Date of Institution : 15.03.2016
Date of arguments : 07.10.2016
Date of judgment : 21.10.2016

JUDGMENT :

1. Accused were arrested by the Police of Police Station Najafgarh, New Delhi and were challaned to the court for trial for commission of the offences punishable under Sections 498A/376/34 Indian Penal Code, 1860 (in short ‘IPC’).

2. The case of the prosecution, in brief, is that prosecutrix ‘X’ (real name withheld in order to conceal her identity) lodged a complaint with the police against her husband and parents­ in­ law alleging therein that she got married to accused Amit on 8.12.2012. Soon after the marriage, accused started torturing and harassing her for demand of dowry. She was kept locked in a room in the house. Her father in law­accused Mahabir Prasad had an evil eye upon her. One day her father in law, in the presence of her husband and mother in law (accused Geeta), committed rape upon her and when she resisted, she was given beatings by him. Next day of the said incident, she attempted to commit suicide and was admitted in Ayushman Hospital, Dwarka, New Delhi. She was threatened not to disclose the incident to her parents and neighbours. Her husband used to force her to watch porn videos. The accused had also made a demand of a car in dowry. On 9.7.2015 at about 5 p.m the accused got her dowry articles loaded in a tempo and kept them in a rented accommodation at Surakhpur Road. When she asked her husband about the same, she was told that she would have to live alone in the rented accommodation.

3. On the complaint of the prosecutrix, FIR was registered and the matter was investigated by the police. During investigation, statement of the prosecutrix was got recorded u/s.164 Cr.PC on 13.7.2015. Accused Amit and Mahabir Prasad were arrested. The statements of the witnesses were recorded. The prosecutrix was got medically examined. After completing investigation and conducting other necessary formalities, charge­sheet was filed in the court.

4. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions.

5. Vide order dated 18.4.2016, charges U/ss. 498A/34 IPC against all the accused; u/s 376 IPC against accused Mahabir Prasad; u/s 376 r/w S.109 IPC against accused Geeta and u/s 323 IPC against accused Amit were framed to which they pleaded not guilty and claimed trial. They were accordingly put to trial.

6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined six witnesses in all. PW­1 is the prosecutrix who has narrated the incident. PW­2 Dr. S Das and PW­5 Dr. Shruti Joshi Dabral medically examined the prosecutrix and have proved her MLC as Ex.PW2/A. PW­3 HC Renu has proved the copy of the FIR as Ex.PW3/A; endorsement on rukka as Ex.PW3/B and certificate u/s 65B of Evidence Act as Ex.PW3/C. PW­4 ASI Anita is a formal witness in whose presence accused Amit and Mahabir Prasad were arrested vide memos Ex.PW4/A and Ex.PW4/B respectively. PW­6 W SI Seema is the IO of the case who after investigation filed the charge­sheet in the court.

7. Statements of accused were recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against them. Accused pleaded that they have been falsely implicated in this case by the prosecutrix as she wanted to get divorce from her husband. The accused did not lead evidence in their defence.

8. I have heard Ms. Satvinder Kaur, Ld. APP for the State and Sh. Vinay Kumar Sharma, Ld. Counsel for the accused. I have also perused the material on record.

9. Ld. Counsel for accused has contended that accused have been falsely implicated in this case by the prosecution. Prosecutrix has levelled vague allegations against the accused persons and there is no independent witness to corroborate her version. She has not mentioned the date, time, month and year when the alleged offence of rape was committed by accused Mahabir Prasad. According to him, there is nothing on record that the prosecutrix tried to commit suicide. The medical reports placed on record by the prosecution itself do not support the version of the prosecutrix that she had attempted to commit suicide. Lastly, it is contended that there are contradictions and omissions in the statement of the prosecutrix which are fatal to the prosecution case.

10. On the other hand, Ld. APP for State has contended that prosecution has proved its case against the accused beyond reasonable doubt.

11. PW­1 (Prosecutrix) is the star witness in this case. She has deposed that she was married to accused Amit on 8.12.2012 according to Hindu rites and ceremonies. Her marriage was solemnized with great pomp and show and she was given every type of jewellery, utensils, electronic articles etc by her parents. After the marriage, accused used to torture and maltreat her for not bringing sufficient dowry. Her father in law (accused Mahabir Prasad) had an evil eye upon her. One day in the presence of her husband and mother in law, he committed rape upon her in her bedroom. When she objected, she was given beatings by her father in law. When she told about the incident to her husband, he also gave her beatings. Next day of the said incident, she attempted to commit suicide by consuming pain killer. She was taken to Ayushman Hospital by the accused and Gauri Shankar Mishra, a family doctor. After treatment, she was discharged from the hospital at about 8 p.m. Thereafter, she was taken to the clinic of said Dr. Gauri Shankar where she remained admitted the whole of the night. Next day she was taken to her matrimonial home and was threatened not to disclose about the said incident to her parents and neighbours. She has further deposed that on 9.7.2015, all accused loaded her furniture etc in a tempo and dropped her in a rented accommodation at Surakhpur Road, Delhi. She called her father and brothers who took her to Police Station Najafgarh. She has proved her complaint as Ex.PW1/A; her statement u/s 164 Cr.P.C. as Ex.PW1/B and memo vide which some dowry articles were handed over to her as Ex.PW1/C.

12. During her cross examination, PW1 has admitted that she was allowed by the accused persons to attend the marriage of her cousin namely Manoj Chauhan on 3.11.14 and she stayed at her parents’ house for a week w.e.f 27.10.14 to 5.11.14. She has admitted that after one week of the said ceremony, she appeared for her exams of B.Sc at Panipat. She has further admitted that her husband used to take her to Panipat for her exams on motorcycle from Najafgarh. She has further admitted that prior to the marriage of her cousin, she had also visited with accused persons and others to a five days trip to Vaishno Devi and also to Taj Mahal and Fatehpur Sikri. She has admitted her photographs at Taj Mahal as Ex.PX­1, PX­2 and PX­3. She could not tell as to how much amount was spent by her father in her marriage. She has further admitted that she did not mention in her complaint dated 9.7.15 to the police about the alleged incident of rape and on the said day no medical examination was got conducted by the police. She has admitted that she has filed a case against accused Amit and others for maintenance under Protection of Women from Domestic Violence Act, 2005 in a Court at Bahadurgarh, Haryana but no allegation of alleged rape by her father in law is mentioned therein.

13. PW­6 is W SI Seema who has deposed that on 11.7.2015 prosecutrix along with her family members came to the Police Station and lodged a complaint ­ Ex.PW1/A. An endorsement ­ Ex.PW6/A was made on the said statement by her and FIR­Ex.PW3/A was got registered. On 13.7.2015, the prosecutrix was produced before the Ld. MM for recording of her statement u/s 164 Cr.PC. She has proved the memo regarding dowry articles as Ex.PW1/C and seizure memo & handing over of the DD for a sum of Rs.2 lakhs in pursuance of the order of High Court of Delhi as Ex.PW6/B. After completing the investigation, she filed the charge­sheet in the Court.

RAPE:

14. It is the settled law that conviction in rape cases can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case the Court has reasons not to accept the version of the prosecutrix on its face value, it may look for corroboration.

15. Though not referred to or relied upon, in judgment – Rajesh Patel v. State of Jharkhand, 2013 AIR (SC) 1497, it has been held by the Apex Court as under :

“9…Further, the High Court accepted the observation made by the
learned trial Judge wherein the explanation given by the
prosecutrix in her evidence about being terrorised to be killed by
the appellant in case of reporting the matter to the police, is
wholly untenable in law. The same is not only unnatural but also
improbable. Therefore, the inordinate delay of 11 days in lodging
the FIR against the appellant is fatal to the prosecution case. This
vital aspect regarding inordinate delay in lodging the FIR not only
makes the prosecution case improbable to accept but the reasons
and observations made by the trial court as well as the High Court
in the impugned judgments are wholly untenable in law and the
same cannot be accepted. Therefore, the findings and observations
made by the courts below in accepting delay in lodging the FIR by
assigning unsatisfactory reasons cannot be accepted by this Court
as the findings and reasons are erroneous in law.”

16. Though not referred to or relied upon, in judgment – Ramdas v. State of Maharashtra, 2007 AIR (SC) 155, it has been held by the Apex Court as under :

“23. It is no doubt true that the conviction in a case of rape can be
based solely on the testimony of the prosecutrix, but that can be
done in a case where the court is convinced about the truthfulness
of the prosecutrix and there exist no circumstances which cast a
shadow of doubt over her veracity. If the evidence of the
prosecutrix is of such quality that may be sufficient to sustain an
order of conviction solely on the basis of her testimony. In the
instant case we do not find her evidence to be of such quality.


25. In the instant case there are two eye witnesses who have been examined to prove the case of the prosecution. We have rejected outright the evidence of PW­5. We have also critically scrutinised the evidence of the prosecutrix, PW­2. She does not appear to us to be a witness of sterling quality on whose sole testimony a conviction can be sustained. She has tried to conceal facts from the court which were relevant by not deposing about the earlier first information report lodged by her, which is proved to have State vs. Amit Kumar and others been recorded at the police station. She has deviated from the case narrated in the first information report solely with a view to avoid the burden of explaining for the earlier report made by her relating to a non cognizable offence. Her evidence on the question of delay in lodging the report is unsatisfactory and if her deposition is taken as it is, the inordinate delay in lodging the report remains unexplained. Considered in the light of an earlier report made by her in relation to a non cognizable offence, the second report lodged by her after a few days raises suspicion as to its truthfulness.”

17. Though not referred to or relied upon, in judgment – Abbas Ahmed Choudhury v. State of Assam, (2010) 12 SCC 115, observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Hon’ble Supreme Court held :

“Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecution would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW­1.”In any case, 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. She admitted that the accused used to talk to her for hours together and that was within the knowledge of her parents and brother. This statement also casts an element of doubt on her version that she was subjected to sexual intercourse in spite of her resistance. Above all, the version given by her in the Court is at variance with the version set out in the FIR.”

18. Though not referred to or relied upon, in judgment ­ Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr., 2006 (10) State vs. Amit Kumar and others SCC 92, the Apex Court while reiterating that in a rape case, the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony when the entire case is improbable and unlikely to have happened. This is what has been stated:

“It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in acepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.”

19. The FIR in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is well settled proposition of law that mere delay itself cannot be a ground to disbelieve the entire case of the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given case. Though not referred to or relied upon, in case of Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make State vs. Amit Kumar and others deliberation upon the complaint and to make embellishment or even make fabrications.

20. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified in the facts and circumstances of a given case. However, in the present case there is delay in lodging the FIR which has not been adequately explained by the prosecution.

21. Prosecutrix has levelled serious allegations against her father in law that he committed rape upon her. In her cross­examination, the prosecutrix has deposed that on 9.7.15 at about 12 midnight, she had given a statement to the police and at that time her husband, father, brothers and maternal uncles were present. She has admitted that she did not mention in the said complaint about the alleged incident of rape by her father in law. In her testimony before the Court she has not stated the date, time, month and year of the alleged incident of rape. Had there been any alleged incident of rape, the prosecutrix would have certainly mentioned the same in her complaint to the police on 9.7.2015. It causes a serious doubt in the story of the prosecution. PW­1 had deposed that she had stated to the Ld. MM in her statement u/s 164 Cr.PC that her father in law committed rape upon her in the presence of her mother in law and her husband. However, in her statement u/s 164 Cr.PC (Ex.PW1/E), the prosecutrix has not alleged the alleged rape being committed in the presence of her mother in law and her husband. She was confronted in this regard during her cross­ examination. She has further deposed that she had stated to the Ld. MM that when she objected, accused Mahabir Prasad gave her State vs. Amit Kumar and others beatings and her husband took her to the top floor and he also gave her beatings. She was confronted with Ex.PW1/E wherein it is only mentioned that she immediately informed her husband and mother in law and they rebuked her.

22. Though the prosecutrix has not mentioned the date, time, month and year of the alleged incident of rape but from the record it appears to be of April 2014. The FIR was lodged on 11.7.2015. The prosecutrix also did not disclose about the alleged rape when she gave statement to the police on 9.7.2015. There is delay in lodging the FIR which has not been adequately explained by the prosecution. The prosecutrix was taken to the hospital for her medical examination on 11.7.2015. However, she refused to undergo internal examination and the said fact is mentioned in the MLC in her own handwriting. The stand of the accused Mahabir Prasad has remained consistent throughout the trial.

23. On scruitinizing the versions narrated by the prosecutrix, it seems that the prosecutrix has not presented the true facts as regard alleged commission of rape upon her by the accused Mahabir Prasad. Thus, I am of the opinion that prosecution has failed to prove its case against the accused Mahabir Prasad and accused Geeta for the commission of offences punishable under Sections 376/109 IPC. Hence, the accused Mahabir Prasad and Geeta are acquitted for these offences.

CRUELTY

24. Cruelty u/s 498­A IPC is distinguished from the cruelty State vs. Amit Kumar and others under any other Act. U/s 498­A IPC, a husband or relatives of husband of a woman are liable for punishment if they subject her to cruelty.

25. Under Explanation (a) to S.498­A IPC, the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.

26. Explanation (b) to Section 498­A IPC provides that cruelty means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

27. Explanation (b) does not make each and every harassment cruelty. Mere demand for property etc. by itself is not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands is cruelty which is made punishable under the section.

28. Though not referred to or relied upon, in judgment Smt. Sarla Prabhakar Waghmare Vs. State of Maharashtra, 1990 (2) RCR 18, the Bombay High Court has held that it is not every harassment or every type of cruelty that would attract section 498­A IPC. It is only when the beating and harassment are caused with a view to force woman to commit suicide or to fulfill illegal demands, Section 498A IPC would be attracted.

29. Similarly, though not referred to or relied upon, in State vs. Amit Kumar and others judgment Richchpal Kaur Vs. State of Haryana, 1991 (2) Recent Criminal Reports 53, it has been held that if beating given to wife by husband was due to domestic disputes and not on account of demand of dowry, Section 498A IPC would not be attracted.

30. Though not referred to or relied upon in State of H.P. Vs. Nikku Ram, 1995 (6) SCC 219, the Supreme Court observed that harassment to constitute cruelty under explanation (b) to Section 498­ A IPC must have nexus with the demand of dowry and if this is missing the case will fall beyond the scope of Section 498­A IPC.

31. Thus, from the reading of Section 498­A IPC and the above­referred judgments, it is clear that explanation (b) to Section 498­A IPC would be attracted if there is a demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand, then such a cruelty will not be covered under explanation (b) to Section 498­A IPC.

32. The allegations do not attract Explanation (a) to Section 498A IPC as cruelty has to be of such a nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health of the complainant. Merely stating that prosecutrix was severely beaten is not enough. The allegations are vague as no date, time and place of alleged severe beatings have been mentioned. The nature of injuries sustained and how they were caused have also not been mentioned in the complaint. It has not been proved that the prosecutrix attempted to commit suicide. No medical record in this regard has been proved by the prosecution.

33. The father and other relatives were neither cited as witnesses nor were produced in the witness box to prove as to how much amount was spent in the marriage of the prosecutrix with the accused. Prosecutrix has deposed that one Dr. Gauri Shankar also accompanied her to Ayushman Hospital after she attempted suicide. However, said Dr. Gauri Shankar was not examined during the investigation. PW­6 has admitted during her cross­examination that she did not record the statement of any doctor/employee of the Ayushman Hospital and no seizure memo of the medical documents obtained from said hospital was prepared. She has also admitted that no seizure memo regarding seizure of documents mark D (collectively) was prepared and no original of the said list was obtained from the prosecutrix.

34. The prosecutrix has levelled vague allegations of cruelty u/s 498A IPC against the accused. She has not mentioned specifically as to when the alleged demands of dowry were made by the accused. She could not tell as to how much amount was spent in her marriage by her father and other relatives. It has come during the cross­ examination that the prosecutrix was allowed to attend the marriage functions. She even remained at her parents house for a week for attending the marriage of her cousin which was solemnized on 3.11.2014. She has also admitted having visited Vaishno Devi with her husband, parents in law and other relatives prior to the abovesaid marriage. She has also admitted having visited Taj Mahal and Fatehpur Sikri with her husband and family of Dr. Gauri Shankar and has proved the photographs as Ex.PX­1 to PX­3. It shows that the State vs. Amit Kumar and others prosecutrix was free to visit her relatives and was also taken for excursions. After the marriage, the prosecutrix was allowed to pursue higher studies. She completed B.Sc. and secured 60% marks. She used to be taken to Panipat for her exams on motorcycle from Najafgarh by her husband. The prosecutrix has deposed that she attempted to commit suicide next day after the alleged incident of rape by accused Mahabir Prasad. The prosecution has neither placed the original record of the Ayushman Hospital where the prosecutrix was allegedly taken after her attempt to commit suicide nor has cited any witness from the hospital to prove the same. Only photocopies of the records marked as Mark ‘X’ (collectively) from Ayushman Hospital have been placed on record. Even though these documents have not been proved by the prosecution in accordance with law but these documents can be read against the prosecution. When the prosecutrix was taken to Ayushman Hospital, her BP and pulse rate were found normal. There was no history of vomiting. No stomach wash appears to have been taken to confirm if the prosecutrix had consumed pain killer. It is only the prosecutrix who had told the doctor that she had consumed ten Combiflam tablets. The record of the Ayushman Hospital does not show that any suicidal attempt was made by the prosecutrix. No complaint was made by the Hospital in this regard to the Police. In my opinion, the prosecution has failed to prove its case against the accused for the offence punishable u/s 498A IPC.

35. Taking into consideration the totality of the facts and circumstances of this case, I am of the opinion that the prosecution has State vs. Amit Kumar and others failed to prove its case against the accused persons for the alleged offences. Hence, all the accused in the present case are acquitted. Their personal bonds are cancelled and sureties are discharged. In terms of Section 437(A) Cr.P.C., accused are directed to furnish personal bonds in the sum of Rs.25,000/­ each with one surety in the like amount for a period of six months for their appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.

Announced in open Court

(PRAVEEN KUMAR)
today i.e. on 21.10.2016.
Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.

2 thoughts on “498A/376 – Acquittal – Contradiction in evidence

  1. I am Kiran Pal, residing in Delhi. I am at facing the case under 498a, my case is on trials right now. We have made 9 accused from the family and relatives by my wife. There is no FIR under this section but trials are on after directions of Hon’ble District session Judge Saket Court. Further, there are so many contradictions were observed by the Saket Lower Court and case was dismissed, but now again referred for trials. I am disturbed so much. The section 9 I filed was ordered in my favour.

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